Western Australia
Justices Act 1902
Reprint 14: The Act as at 16 May 2003
What the reprint includes
Endnotes, Compilation table
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2.Validation, transitional, savings, or other provisions identified in the Compilation table
3.A table
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2.The other kind of editorial note shows something has been —
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Western Australia
Justices Act 1902
CONTENTS
Part I — Preliminary
1.Short title2
Commencement of Act
3.Commencement of Act2
Interpretation
4.Interpretation2
4A.Bail Act 1982 to prevail over this Act4
5.General saving of powers of justices5
Part II — Justices
6.Appointment6
7.Removal6
8.Resignation6
9.Mayors and presidents of local governments to be justices7
10.Justice under s. 9 may be prohibited from acting7
12.Judges etc. to be justices8
13.Non resident may be appointed8
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
Description
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
Courts of petty sessions
24.Magisterial districts12
25.Existing magisterial districts to continue under this Act until altered13
25A.Clerks of petty sessions13
Powers of one justice
26.Powers of one justice14
27.After decision, one justice may issue warrant of execution or commitment14
Hearing and quorum
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
Magistrates
33.Magistrates may in all cases act alone16
34.Clerks’ duties may be done by magistrate16
Extent of jurisdiction
35.Acts done outside jurisdiction, validity of17
36.Warrants of commitment etc., validity of17
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 mandamus18
40.Orders in respect of stolen goods18
Interruption of proceedings
41.Penalty for insulting or interrupting justices18
Part IV — General procedure
Complaints
42.Complaint, by whom laid20
43.One matter only in complaint20
44.Description of persons and property in complaint21
45.Description of offence in complaints21
Variance and amendment
46.Want of form or variance in warrant, etc.21
47.Amendment21
48.Minute of amendment21
Complaints, how made
49.Complaint to be on oath if warrant required22
50.Where summons issued22
Limitation
51.Limitation period for complaints22
Summons
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
Service, endorsement, and proof of service
56.Mode of service24
56A.Power to serve some summonses by post24
57.Proof of service27
57A.Summons, amendment of time following non‑service28
Warrants in the first instance
58.Warrant and summons, in what cases issued28
59.Warrant in the first instance for simple offence29
Direction of warrants
60.Direction of warrant29
Form of warrant
61.Contents of warrants29
62.Warrant in force until executed30
65.Court to be open: Publicity30
66.Committal proceedings are not open court31
67.Counsel or solicitor not to be excluded31
Counsel and solicitor
68.Conduct of case32
Evidence
69.Evidence of witnesses, statements may be admitted on indictable charges32
70.Prosecutor or complainant a competent witness35
71.Mental fitness to stand trial35
72.Proof of negative etc.35
73.Depositions of witnesses for indictable charges35
73A.Offences in respect of recording of depositions37
Witnesses in general
74.Summoning witnesses37
75.After summons, warrants may issue38
76.Warrant in the first instance38
77.Witness not answering39
78.Production of documents39
Remand and adjournment
79.Remand of defendant on charge of indictable offence39
80.Verbal remand40
81.Bringing up during remand40
83.Remand to another place41
84.Effect of depositions etc.41
85.Defendant may have to pay expense41
86.Adjournment of hearing42
86A.Videolink may be used for remands and adjournments42
Committal and recognisance
87.Place of committal or detention43
88.Committal to be made to a gaol43
89.Witness may be discharged on recognisance43
90.Recognisances43
91.Issue of warrant for non‑appearance44
Recognisances generally
92.Recognisances taken out of court44
93.Forfeited recognisances, how to be enforced44
Execution of warrants of commitment
95.Conveying prisoners to gaol45
Regulations and forms
96.Regulations, forms, and fees45
Part V — Proceedings in case of indictable offences
Division 1 — Preliminary
97.Application47
97A.Defendant not appearing may be arrested47
Division 2 — General procedure
97B.Interpretation48
98.Procedure on first appearance48
99.Procedure if offence may be dealt with summarily49
100.If charge not to be dealt with summarily, defendant to be supplied with statement of facts etc.49
101.Expedited committal if defendant pleads guilty50
101A.If no expedited committal, defendant to be informed of procedures51
102.Compulsory examination by the prosecution52
103.Disclosure by the prosecution52
104.Procedure on committal mention54
105.Liability of body corporate for contempt offences55
106.Saving55
109.Depositions of persons dead or absent55
110.Witness dangerously ill, statement from56
111.How the statement to be taken57
112.Statement, when admissible in evidence57
113.Prisoner to be present when statement taken58
114.Prosecution may change statement of facts58
Warrant of deliverance
123.Defendant may be granted bail or kept in custody59
Witnesses where committal for trial
124.Witness may be required to enter recognisance59
125.Recognisance, form and notice of59
126.Witness refusing to enter recognisance may be imprisoned59
Transmission of depositions, etc.
127.On committal, complaint etc. to be sent to Attorney General60
128.Duty of Attorney General60
129.Judge may direct delivery of complaint etc. to court61
Recommittal
130.Recommittal in case of committal to wrong court61
Part VI — Proceedings in case of simple offences and other matters
Complainant’s default
134.Absence of complainant, procedure on63
Defendant’s default
135.Absence of defendant or defendant’s written plea of guilty, procedure on63
136.Defendant’s written plea of not guilty, procedure on65
136AA.Absence of defendant, evidentiary presumptions68
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 aside68
136B.Proceedings against children71
Hearing
137.Appearance of both parties, procedure on71
138.Proceedings at the hearing on defendant’s confession72
138A.Defendants who will not or do not plead73
139.Where defendant does not admit the case73
140.Non‑appearance of party or parties at adjourned hearing73
Practice
141.Practice as to examination etc. of witnesses74
Dismissal
142.Dismissal of complaint, procedure on74
143.Acquittal on account of unsoundness of mind74
146.Formal record of conviction not necessary, except for special purposes75
No certiorari
147.No certiorari75
Party’s access to records etc.
148.Party’s right to have copies of records and view exhibits76
150.Sentence77
Costs
151.Costs on conviction or order77
152.Costs on dismissal77
153.Costs to be specified in the conviction or order77
Enforcement of recognisances
154A.Enforcing recognisances78
Enforcing orders to pay money
155.Enforcing the payment of money, other than fines etc.78
Enforcing other orders
159.Imprisonment may be ordered79
Part VIII — Appeals
Definitions
183.Definitions81
Right of appeal by leave
184.Right of appeal81
185.Application for leave82
186.Grounds82
Determination of application for leave
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
Sentence pending disposal of appeal
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
Determination of appeal
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
Discontinuance and abandonment of appeal
204.Discontinuance of appeal92
205.Dismissal for want of prosecution92
206.Application for re‑instatement of appeal93
Appeal to Full Court
206A.Appeal to Full Court94
General
206B.Retention of exhibits95
206C.Time may be extended or shortened96
206D.Orders for costs97
206E.Enforcement of order for costs97
Habeas corpus
207.Control of Supreme Court over summary convictions98
208.Amendment98
209.Notice dispensed with98
Service of notices
215.Service by or upon solicitor acting for party99
Costs
219.No order for costs to be made against justices or police officers99
Part IX — Protection of justices in the execution of their office
Where action lies against justices
222.Justice sued for act not within his jurisdiction101
223.Warrant by one justice upon an order of another101
224.No action for acts done under order of Supreme Court102
225.No action where proceeding confirmed on appeal102
226.Proceedings may be stayed or set aside102
Statement of claim and plaint
230.Liability of justices102
Damages
232.Damages against a justice where guilt or liability of plaintiff if proved103
Second Schedule104
Third Schedule106
Ninth Schedule107
Notes
Compilation table108
Defined Terms
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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
This Act may be cited as the Justices Act 1902 1.
[Section 1 inserted by No. 27 of 1988 s. 4.]
[2.
This Act shall commence and take effect on and from 1 January 1903.
In the interpretation of this Act
“charge of an indictable offence
“complaint
(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
“gaol
“hearing
“indictable offence
“indictment
“jurisdiction
(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
“magistrate
“matter
“Minister
“oath
“order
“police officer
“simple offence
“summary conviction
When one word or phrase includes another, the derivatives of the one include those of the other.
[Section 4 amended by No. 19 of 1919 s. 2 and 4; No. 22 of 1968 s. 2; No. 17 of 1972 s. 4; No. 72 of 1975 s. 4; No. 33 of 1976 s. 3; No. 87 of 1982 s. 4; No. 38 of 1988 s. 7; No. 33 of 1989 s. 4; No. 33 of 1991 s. 4; No. 92 of 1994 s. 20; No. 78 of 1995 s. 61; No. 36 of 1996 s. 34; No. 27 of 2002 s. 4.]
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.
[Section 4A inserted by No. 87 of 1982 s. 5.]
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
Part II — Justices
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
Any justice may be appointed to keep the peace in more than one magisterial district.
[Section 6 amended by No. 19 of 1919 s. 3; No. 73 of 1994 s. 4.]
A justice may be removed or discharged from his
A justice may at any time resign his
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
(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
(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
(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
[Section 9 inserted by No. 41 of 1977 s. 2; amended by No. 31 of 1993 s. 49; No. 14 of 1996 s. 4.]
10.
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
(a)he
(b)he
[Section 10 inserted by No. 41 of 1977 s. 3.]
[11.Repealed by No. 22 of 1968 s. 3.]
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.
[Section 12 inserted by No. 41 of 1977 s. 4; amended by No. 6 of 1979 s. 3; No. 49 of 1988 s. 51.]
13.Non resident may be appointed
Any person may be appointed to be a Justice of the Peace for Western Australia although he
14.Acts done by justices outside the State
Any act done by a justice by virtue of his
(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
[Section 15 amended by No. 72 of 1975 s. 5; No. 14 of 1996 s. 4.]
A justice other than a justice appointed by virtue of section 12 shall not exercise any of the functions of his
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 authorised in that behalf by the Governor.
[Section 16 amended by No. 34 of 1926 s. 4; No. 22 of 1968 s. 5.]
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
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
19.Certain signatures to be prima facie
(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
(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
[Section 19 inserted by No. 22 of 1968 s. 6.]
Part III — 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
[Section 20 amended by No. 17 of 1972 s. 5.]
21.Authentication of acts of justices
All summonses, warrants, convictions, and orders (not being by law authorised 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
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
(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
(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
(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
(d)when by reason of the absence of a magistrate the court cannot be held at the time appointed, the clerk, or, in his
(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.
[Section 24 amended by No. 119 of 1976 s. 2.]
25.Existing magisterial districts to continue under this Act until altered
The districts hereto
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
[Section 25A inserted by No. 22 of 1968 s. 7.]
One justice out of sessions may receive a complaint, and grant a summons or warrant thereon, and may issue his
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.
[Section 27 amended by No. 22 of 1968 s. 8; No. 92 of 1994 s. 20.]
[28.Repealed by No. 33 of 1989 s. 5.]
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.
[Section 29 inserted by No. 19 of 1919 s. 5; amended by No. 28 of 1920 s. 2; No. 17 of 1972 s. 6.]
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.
[Section 30 amended by No. 19 of 1919 s. 4; No. 14 of 1942 s. 2; No. 22 of 1968 s. 10; No. 17 of 1972 s. 7.]
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.
[Section 32 amended by No. 94 of 1972 s. 4
[Heading amended by No. 22 of 1968 s. 11.]
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.
[Section 33 amended by No. 19 of 1919 s. 6; No. 22 of 1968 s. 12; No. 17 of 1972 s. 8.]
34.Clerks’ duties may be done 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
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
[Section 34 amended by No. 22 of 1968 s. 13.]
35.Acts done 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
36.Warrants of commitment etc., validity of
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
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.
When a justice refuses to do any act relating to the duties of his
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.
[Section 40 amended by No. 22 of 1968 s. 14.]
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
(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
[Section 41 amended by No. 113 of 1965 s. 8; No. 71 of 1986 s. 9; No. 47 of 1999 s. 17.]
Part IV — General procedure
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
[Section 42 amended by No. 19 of 1997 s. 80(1).]
43.One matter only in 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
[Section 43 amended by No. 19 of 1919 s. 7.]
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.
[Section 45 amended by No. 14 of 1996 s. 4.]
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.
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
[Section 47 amended by No. 87 of 1982 s. 6.]
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.
49.Complaint to be on oath if warrant
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.
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.
51.Limitation
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.
[Section 51 amended by No. 19 of 1919 s. 4; No. 53 of 1992 s. 15.]
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
[Section 52 amended by No. 19 of 1919 s. 4.]
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
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.
[Section 54 inserted by No. 120 of 1981 s. 3; amended by No. 10 of 1999 s. 5.]
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
Subject to section 56A, a summons must be served upon the person to whom it is directed by delivering a duplicate thereof to him
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
[Section 56 amended by No. 11 of 1936 s. 2; No. 83 of 1965 s. 3; No. 22 of 1968 s. 15.]
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
(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
(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
(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 authorised 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
(5)Where a summons posted pursuant to this section does not, in fact, come to the notice of the defendant prior to his
(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.
[Section 56A inserted by No. 83 of 1965 s. 4; amended by No. 24 of 1967 s. 2; No. 92 of 1994 s. 20; No. 78 of 1995 s. 61; No. 14 of 1996 s. 4; No. 36 of 1996 s. 35.]
(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
(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.
[Section 57 amended by No. 11 of 1936 s. 3; No. 51 of 1992 s. 16(1).]
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.
[Section 57A inserted by No. 36 of 1996 s. 36.]
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 cognisance may be taken by the courts of Western Australia, is suspected of being within such limits,
the justice may issue his
Provided that the justice, if he
Notwithstanding the issue of a summons, any justice may issue his
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
(1)A warrant to apprehend a defendant that he
(2)Any police officer may execute any warrant as if it was directed specially to him
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
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
[Section 65 inserted by No. 14 of 1992 s. 19.]
66.Committal proceedings are not open court
(1)Where for the purposes of the committal for trial or sentencing of a person charged with an indictable offence —
(a)a witness is examined before justices; or
(b)a written statement or other evidence is tendered to justices,
the room or place in which that occurs is not to be regarded as an open court, and the justices may order that no person is to be in the room or place without their permission.
(2)The justices are not to make an order under subsection (1) unless it appears to them that the ends of justice require them to do so.
[Section 66 inserted by No. 27 of 2002 s. 5.]
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.
Every complainant shall be at liberty to conduct his
69.Evidence of witnesses, statements may be admitted on 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)Subject to subsection (3) and despite any other Act, where a person is charged with an indictable offence and the charge is not dealt with summarily, a written statement of any person may be tendered by the prosecution to a court of summary jurisdiction for use in any resulting trial or sentencing of the defendant if —
(a)the statement complies with the conditions in subsection (4);
(b)before the statement is so tendered, it has been filed and served in accordance with section 103(1); and
(c)where the statement refers to any other document or exhibit, the copy of the statement served under paragraph (a) is accompanied by a copy or description of the other document or exhibit.
(3)Despite any other written law, where a person is charged with an indictable offence and the charge is not dealt with summarily, a statement of an affected child, as defined in section 106A of the Evidence Act 1906 may be tendered to a court of summary jurisdiction for use in any resulting trial or sentencing of the defendant if —
(a)in the case of a written statement, it complies with the conditions in subsection (4);
(b)in the case of an electronically recorded statement, it complies with the conditions in subsection (5);
(c)before the statement is so tendered, it has been filed and served in accordance with section 103(1); and
(d)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)The conditions with which a written statement must comply are as follows —
(a)where the statement is made by a person under the age of 18 years, it gives his
(b)unless the statement is made by a person under the age of 12 years, it contains a declaration by the person who made it to the effect that it is true to the best of his
(c)the statement purports to be signed by the person who made it; and
(d)where the statement is made by a person who cannot read, it is read aloud to him
(5)The conditions with which an electronically recorded statement must comply are as follows —
(a)the statement identifies the person making it;
(b)the statement gives the age of the person making it; and
(c)unless the statement is made by a person under the age of 12 years, it contains a declaration by the person who made it to the effect that —
(i)the recording of the statement (without this declaration) has been played back to him
(ii)the statement is true to the best of his
(6)A statement is deemed to be tendered in evidence under this section at the time that the statement is tendered to the court.
(7)Any document or object referred to as an exhibit and identified in a statement tendered in evidence under this section is deemed to have been produced before the court and identified by the maker of the statement.
(7a)A written statement tendered under this section to a court of summary jurisdiction need not be signed by the judicial officer constituting the court.
(8)A 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.
(9)Any person who, in a statement tendered in evidence under this section, has wilfully included anything which he
[Section 69 inserted by No. 71 of 2000 s. 32; amended by No. 27 of 2002 s. 6.]
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.
[Section 70 amended by No. 19 of 1919 s. 4.]
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.
[Section 71 inserted by No. 69 of 1996 s. 49.]
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
[Section 72 amended by No. 19 of 1919 s. 4.]
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
(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)-(5) repealed]
[Section 73 amended by No. 33 of 1976 s. 5; No. 81 of 1986 s. 8; No. 71 of 2000 s. 33; No. 27 of 2002 s. 7.]
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
(b)falsely represents himself
(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.
[Section 73A inserted by No. 81 of 1986 s. 9.]
(1)Any justice or clerk of petty sessions may issue his
(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.
[Section 74 amended by No. 11 of 1936 s. 4.]
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
(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.
[Section 75 amended by No. 113 of 1965 s. 8.]
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
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
When justices have authority to summon any person as a witness, they shall have the like authority to require and compel him
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
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
(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.
[Section 79 amended by No. 19 of 1919 s. 4; No. 15 of 1985 s. 2.]
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
Any justices may order the defendant to be brought before them at any time before the expiration of the time for which he
[Section 81 amended by No. 47 of 1999 s. 18.]
[82.Repealed by No. 87 of 1982 s. 7.]
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 recognisance 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 recognisances so taken by them, to the person who has the execution of the last‑mentioned warrant, to be by him
[Section 83 amended by No. 47 of 1999 s. 19.]
Such depositions and recognisances 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 recognisances 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.
[Section 84 amended by No. 87 of 1982 s. 8.]
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
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.
[Section 86 amended by No. 19 of 1919 s. 4; No. 120 of 1981 s. 4; No. 87 of 1982 s. 9.]
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
(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.
[Section 86A inserted by No. 53 of 1992 s. 16; amended by No. 48 of 1998 s. 11.]
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 recognisance
A witness or person sought to be made a witness may be discharged upon recognisance.
When justices are authorised to discharge a witness or other person upon recognisance they may order his
[Section 90 amended by No. 87 of 1982 s. 10.]
91.Issue of warrant for non‑appearance
If a witness or other person, does not appear at the time and place mentioned in the recognisance, then the justices who are there present may adjourn the hearing, and may issue a warrant for his
[Section 91 amended by No. 87 of 1982 s. 11.]
92.Recognisances taken out of court
When justices have fixed, as regards any recognisance, the amount in which the principal and sureties (if any) are to be bound, the recognisance, 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
93.Forfeited recognisances, how to be enforced
When the conditions, or any of them, in any recognisance that is referred to in section 154A(1) are not complied with, any justice may certify upon the back of the recognisance 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 recognisances, and such certificate shall be deemed sufficient prima facie
[Section 93 amended by No. 19 of 1919 s. 8; No. 17 of 1972 s. 9.]
[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
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.
[Section 96 amended by No. 24 of 1967 s. 3; No. 119 of 1976 s. 4; No. 69 of 1984 s. 4; No. 53 of 1992 s. 17.]
Part V — Proceedings in case of indictable offences
Division 1 — Preliminary
[Heading inserted by No. 53 of 1992 s. 25.]
(1)This Part applies where a defendant is charged before justices with an indictable offence (“the charge”).
[(2)repealed]
[Section 97 inserted by No. 53 of 1992 s. 25; amended by No. 82 of 1994 s. 13(5).]
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.
[Section 97A inserted by No. 36 of 1996 s. 37.]
Division 2 — General procedure
[Heading inserted by No. 53 of 1992 s. 25.]
In this Division —
“committal mention
“contempt offence
[Section 97B inserted by No. 27 of 2002 s. 8.]
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
(b)cause the defendant to be given a notice in the prescribed form explaining the procedures in this Part.
[Section 98 inserted by No. 53 of 1992 s. 25; amended by No. 59 of 1996 s. 51.]
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
(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.
[Section 99 inserted by No. 53 of 1992 s. 25.]
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
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.
[Section 100 inserted by No. 53 of 1992 s. 25.]
[Heading repealed by No. 53 of 1992 s. 25.]
101.Expedited committal if defendant pleads guilty
(1)On the resumption of the hearing of the complaint following the service by the prosecution of the material referred to in section 100(1), the justices shall —
(a)tell the defendant he
(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).
[Section 101 inserted by No. 53 of 1992 s. 25; amended by No. 27 of 2002 s. 9.]
101A.If no expedited committal, defendant to be
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)deleted]
(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 complaint.
[Section 101A inserted by No. 53 of 1992 s. 25; amended by No. 71 of 2000 s. 34; No. 27 of 2002 s. 10.]
[101B‑101F. Repealed by No. 27 of 2002 s. 11.]
102.Compulsory examination by the prosecution
(1)At any time before the committal mention a person may, without notice to the defendant, be summoned under section 74 or 78 to attend before the justices for the purpose of being examined by or on behalf of the prosecution or producing a document or thing.
(2)The defendant —
(a)is not a party to an examination under subsection (1);
(b)is not to cross‑examine a witness attending an examination under subsection (1); and
(c)is not to address the justices on an examination under subsection (1).
(3)The evidence of a witness under this section must be taken in the form of a deposition under section 73(1).
(4)A person who prints, publishes, exhibits, sells, circulates, distributes, or in any other manner makes public any evidence taken on an examination under subsection (1), or attempts to do so, commits a contempt of the Supreme Court and is punishable accordingly by that court.
[Section 102 inserted by No. 27 of 2002 s. 11.]
103.Disclosure by the prosecution
(1)The prosecution is required to serve on the defendant and file with the clerk of petty sessions —
(a)a copy of every statement or deposition, obtained by the prosecution, of any person who may be able to give relevant evidence at any resulting trial;
(b)notice of the name and, if known, the address of any person from whom no statement, report or deposition has been obtained but who the prosecution thinks may be able to give relevant evidence at any resulting trial and a description of the relevant evidence concerned;
(c)a copy of every other relevant document or exhibit or, if it is not practicable to copy the document or exhibit, a description of it and notice of where and when it can be inspected;
(d)a copy of the criminal history of the accused; and
(e)any other prescribed document.
(2)The requirements of subsection (1) must be complied with not later than 14 days before the day of the committal mention.
(3)If a statement or deposition is recorded on video‑tape, it is sufficient for the purposes of subsection (1)(a) to provide notice of the video‑tape.
(4)The justices may order that a particular requirement of subsection (1) be dispensed with if, on an application by the prosecution, the justices are satisfied that —
(a)there is a good reason for doing so; and
(b)no miscarriage of justice will result.
(5)An application under subsection (4) may be made by the prosecution without notice to the defendant and may be heard and determined in the absence of the defendant.
(6)The room or place in which the justices hear and determine an application under subsection (4) is not to be regarded as an open court, and the justices may order that no person is to be in the room or place without their permission.
(7)If the prosecution does not comply with a requirement of subsection (1) and that requirement has not been dispensed with under subsection (4), the justices may discharge the defendant or adjourn the hearing of the complaint to enable compliance with that subsection, as the justices think fit.
[Section 103 inserted by No. 27 of 2002 s. 11.]
104.Procedure on committal mention
(1)On the committal mention the justices are to —
(a)require the defendant to plead to the charge;
(b)require that all written statements that are, under section 69, to be tendered to them are tendered, and they are to receive those statements which are not to be read in court; and
(c)require that any video‑tape of evidence that is, under section 106T of the Evidence Act 1906, to be admitted is tendered, and they are to receive the video‑tape which is not to be played in court.
(2)The defendant is not to —
(a)give or tender any evidence; or
(b)submit to the justices that there is insufficient evidence before them to put the defendant on his
(3)Unless the defendant pleads guilty to the charge, the justices are to commit the defendant to a court of competent jurisdiction for trial.
(4)If the defendant pleads guilty to the charge, the justices are, without convicting the defendant, to commit the defendant to a court of competent jurisdiction for sentence.
(5)A person who prints, publishes, exhibits, sells, circulates, distributes, or in any other manner makes public any evidence tendered on a committal mention, or attempts to do so, commits a contempt of the Supreme Court and is punishable accordingly by that court.
[Section 104 inserted by No. 27 of 2002 s. 11.]
105.Liability of body corporate for contempt offences
Without affecting any other liability of any person for a contempt offence or otherwise —
(a)a company or other body corporate is liable to any punishment or penalty for a contempt offence as if it were an individual so far as the punishment or penalty is enforceable against a company or body corporate; and
(b)if any director, manager, secretary, or officer of a company, or any member of the managing body of a body corporate commits, or knowingly authorises or permits, a contempt offence, he
[Section 105 inserted by No. 27 of 2002 s. 11.]
Nothing in section 102(4) or 104(5) applies to the publication of information —
(a)with regard to any proceedings, punishment or penalty for a contempt offence; or
(b)after the information is, at the trial or sentencing of the defendant, admitted into evidence or stated aloud under section 617A of The Criminal Code.
[Section 106 inserted by No. 27 of 2002 s. 11.]
[107, 108. Repealed by No. 27 of 2002 s. 11.]
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
[Section 109 inserted by No. 81 of 1986 s. 13.]
110.Witness 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 the statement 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
[Section 111 amended by No. 22 of 1968 s. 17; No. 87 of 1982 s. 14.]
112.Statement, 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
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
[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
[Section 114 inserted by No. 53 of 1992 s. 30.]
[115‑122. Repealed by No. 87 of 1982 s. 16.]
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.
[Section 123 inserted by No. 53 of 1992 s. 31.]
Witnesses where committal for trial
124.
The justices before whom any witnesses are examined may bind every such witness by recognisance, 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, and shall so bind over all witnesses called for the prosecution if so required by the defendant.
[Section 124 amended by No. 27 of 2002 s. 12.]
125.
Every such recognisance 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.
If a witness refuses to enter into such recognisance, the justices may, by warrant, commit him
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
Transmission of depositions, etc.
127.On committal, complaint etc. to be sent to Attorney General
If the defendant is committed for trial under section 104(3) or for sentence under section 104(4), 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 recognisances other than any statement of the material facts served under section 100(1) or 114.
[Section 127 inserted by No. 53 of 1992 s. 32; amended by No. 27 of 2002 s. 13.]
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
129.
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
130.Recommittal in case of
If in any case a defendant is committed to take his
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 recognisance 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.
[Section 130 amended by No. 19 of 1919 s. 9; No. 87 of 1982 s. 17.]
[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
134.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
[Section 134 amended by No. 19 of 1919 s. 4; No. 120 of 1981 s. 5; No. 87 of 1982 s. 18.]
135.Absence of defendant or defendant’s written plea of guilty, procedure on
(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
(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
but if the defendant has by written notification notified the clerk of petty sessions that he
(1a)Where a defendant has notified the clerk of petty sessions that he
(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
(1b)For the purposes of this section
(1c)A summons issued under subsection (1)(b)(i) may be served by post on the defendant.
[(2)repealed]
(3)Where a person is apprehended under a warrant issued pursuant to this section, he
[Section 135 inserted by No. 22 of 1968 s. 23; amended by No. 48 of 1971 s. 3; No. 6 of 1979 s. 4; No. 120 of 1981 s. 4; No. 33 of 1991 s. 5; No. 78 of 1995 s. 61; No. 36 of 1996 s. 38; No. 10 of 1999 s. 6.]
136.Defendant’s written 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
(a)state —
(i)that he
(ii)the address for service on him
and
in the place provided for the purpose in the duplicate of that summons received by him
(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 authorised by him
(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 authorised by him
(a)serve on the defendant notice in the prescribed form that he
(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
(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 authorised by him
(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
(6)In this section —
“officer
[Section 136 inserted by No. 120 of 1981 s. 7; amended by No. 78 of 1995 s. 61.]
136AA.Absence of defendant, evidentiary presumptions
(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
(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
(c)that the person had the authority to make or swear the complaint.
(3)In this section —
“public officer
[Section 136AA inserted by No. 10 of 1999 s. 7.]
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
(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
(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 recognisance 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
(3b)On a recognisance 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 recognisance to the person by whom he
(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
(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
(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 recognisance 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
[Section 136A inserted by No. 9 of 1957 s. 3; amended by No. 22 of 1968 s. 25; No. 17 of 1972 s. 10; No. 87 of 1982 s. 19; No. 69 of 1984 s. 5; No. 33 of 1989 s. 6; No. 92 of 1994 s. 20.]
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.
[Section 136B inserted by No. 22 of 1968 s. 26; amended by No. 49 of 1988 s. 52; No. 33 of 1989 s. 7.]
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
(b)under section 136 of his
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.
[Section 137 inserted by No. 120 of 1981 s. 8.]
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
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.
[Section 138A inserted by No. 69 of 1996 s. 50.]
139.Where defendant does not admit the case
But if he
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.
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
[Section 141 amended by No. 19 of 1919 s. 4.]
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.
[Section 143 inserted by No. 69 of 1996 s. 51.]
[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 habeas corpus
(2)Notwithstanding subsection (1) justices shall record their reasons for a decision if required to do so under the Sentencing Act 1995.
[Section 146 amended by No. 27 of 1988 s. 6; No. 92 of 1994 s. 20; No. 78 of 1995 s. 61.]
No conviction or order shall be quashed for want of form, or be removed by certiorari
Party’s access to records etc.
[Heading inserted by No. 33 of 1989 s. 8.]
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.
[Section 148 inserted by No. 33 of 1989 s. 8.]
[149 and heading.Repealed by No. 78 of 1995 s. 61.]
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.
[Section 150 inserted by No. 78 of 1995 s. 61.]
[150A.Repealed by No. 78 of 1995 s. 61.]
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.
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.]
(1)If a person bound by —
(a)a recognisance to appear before a court of petty sessions;
(b)a recognisance entered into pursuant to an order made under a written law by a magistrate or a justice; or
(c)a recognisance entered into in respect of any matter cognisable by a court of summary jurisdiction,
fails in any condition of the recognisance, justices may, on the application of the Crown and on the production of the recognisance, order that the recognisance be forfeited and that any person bound by the recognisance (including any surety) pay the amount that he
(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.
[Section 154A inserted by No. 78 of 1995 s. 59.]
[Heading inserted by No. 92 of 1994 s. 18.]
155.Enforcing the payment of money, other than fines etc.
(1)In this section —
“payment order
(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 recognisance 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.
[Section 155 inserted by No. 78 of 1995 s. 60.]
[155A‑155D. Repealed by No. 109 of 1965 s. 4.]
[156‑158. Repealed by No. 92 of 1994 s. 18.]
[Heading inserted by No. 92 of 1994 s. 19.]
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.
[Section 159 inserted by No. 92 of 1994 s. 19.]
[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.]
[Parts VIAA, VIBA and VIA repealed by No. 92 of 1994 s. 20.]
[Parts VII and VIIA repealed by No. 19 of 1997 s. 80(2).]
Part VIII — Appeals
[Heading inserted by No. 33 of 1989 s. 15.]
[Heading inserted by No. 33 of 1989 s. 15.]
In this Part unless the contrary intention appears —
“clerk of petty sessions
“Court
“Full Court
“legal practitioner
“Registrar
[Section 183 inserted by No. 33 of 1989 s. 16.]
[Heading inserted by No. 33 of 1989 s. 16.]
(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.
[Section 184 inserted by No. 33 of 1989 s. 16; amended by No. 36 of 1996 s. 39.]
(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
(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.
[Section 185 inserted by No. 33 of 1989 s. 16.]
(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.
[Section 186 inserted by No. 33 of 1989 s. 16; amended by No. 78 of 1995 s. 61.]
Determination of application for leave
[Heading inserted by No. 33 of 1989 s. 16.]
(1)The Judge shall grant leave to appeal unless he
(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
[Section 187 inserted by No. 33 of 1989 s. 16.]
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
(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.
[Section 188 inserted by No. 33 of 1989 s. 16.]
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.
[Section 189 inserted by No. 33 of 1989 s. 16.]
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.
[Section 190 inserted by No. 33 of 1989 s. 16.]
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.
[Section 191 inserted by No. 33 of 1989 s. 16.]
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.
[Section 192 inserted by No. 33 of 1989 s. 16.]
Sentence pending disposal of appeal
[Heading inserted by No. 33 of 1989 s. 16.]
193.Judge may make order as to stay of execution
(1)On granting leave to appeal, the Judge may make any order that he
(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
[Section 193 inserted by No. 33 of 1989 s. 16; amended by No. 78 of 1995 s. 61; No. 8 of 1996 s. 11.]
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.
[Section 194 inserted by No. 33 of 1989 s. 16; amended by No. 92 of 1994 s. 20; No. 78 of 1995 s. 61; No. 8 of 1996 s. 12; No. 29 of 1998 s. 9.]
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.
[Section 195 inserted by No. 33 of 1989 s. 16.]
[Heading inserted by No. 33 of 1989 s. 16.]
(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.
[Section 196 inserted by No. 33 of 1989 s. 16.]
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
[Section 197 inserted by No. 33 of 1989 s. 16.]
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
(b)if he
(2)Where it appears to the person for the time being in charge of any prison that a person in his
[Section 198 inserted by No. 33 of 1989 s. 16.]
(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
(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
(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.
[Section 199 inserted by No. 33 of 1989 s. 16; amended by No. 29 of 1998 s. 10.]
(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).
[Section 200 inserted by No. 33 of 1989 s. 16.]
(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
[Section 201 inserted by No. 33 of 1989 s. 16.]
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.
[Section 202 inserted by No. 33 of 1989 s. 16.]
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 person in charge of the prison in which the person sentenced is in custody, or if he
(2)Where the Court has quashed a sentence of imprisonment imposed on a person and has not imposed another sentence of imprisonment on him
(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 person in charge of the prison and shall be sufficient evidence of the matters stated therein.
[Section 203 inserted by No. 33 of 1989 s. 16; amended by No. 47 of 1999 s. 20.]
Discontinuance and abandonment of appeal
[Heading inserted by No. 33 of 1989 s. 16.]
(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.
[Section 204 inserted by No. 33 of 1989 s. 16.]
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
(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
[Section 205 inserted by No. 33 of 1989 s. 16.]
206.Application for re‑instatement of appeal
(1)Where an appeal is dismissed under section 205 in the absence of the appellant, he
(2)The Judge shall make an order re‑instating the appeal only if he
(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.
[Section 206 inserted by No. 33 of 1989 s. 16.]
[Heading inserted by No. 33 of 1989 s. 16.]
(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
(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.
[Section 206A inserted by No. 33 of 1989 s. 16.]
[Heading inserted by No. 33 of 1989 s. 16.]
(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
(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
(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
(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.
[Section 206B inserted by No. 33 of 1989 s. 16.]
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
[Section 206C inserted by No. 33 of 1989 s. 16.]
Where the Attorney General is an appellant and costs are ordered to be paid by him
[Section 206D inserted by No. 33 of 1989 s. 16.]
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
(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.
[Section 206E inserted by No. 33 of 1989 s. 16.]
[206F‑206I. Repealed by No. 33 of 1989 s. 16.]
207.Control of Supreme Court over summary convictions
No person brought before the Supreme Court, or a Judge thereof, on habeas corpus
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
The notice hereby prescribed may be given either before or after the issue of the writ of habeas corpus
[210.Repealed by No. 87 of 1982 s. 26.]
[211‑214. Repealed by No. 33 of 1989 s. 17.]
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
[Section 215 inserted by No. 19 of 1919 s. 22‑3.]
[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.]
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.
[Section 219 amended by No. 29 of 1948 s. 12; No. 6 of 1993 s. 11; No. 49 of 1996 s. 64.]
[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
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
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
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
[Section 223 amended by No. 92 of 1994 s. 20.]
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
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.
[Section 225 amended by No. 92 of 1994 s. 20.]
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.
[227‑229. Repealed by No. 73 of 1954 s. 5.]
In an action against a justice for any act done by him
[231.Repealed by No. 73 of 1954 s. 5]
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
[Section 232 amended by No. 113 of 1965 s. 4(1).]
[First Schedule omitted under the Reprints Act 1984 s. 7(4)(f).]
[s. 6]
Elizabeth the Second, by the Grace of God, etc.
ToA.B.of
C.D.of
etc.
First Assignment. — Know ye, that We have assigned you, and each and every of you, to be Our justices to keep Our peace in [the
magisterial district in] Our State of Western Australia [and its dependencies], either alone or with any one or more of Our justices that hereafter shall be appointed in Our said
Second Assignment. — We have also assigned you, and each and every of you, either alone or with any one or more of such justices to be appointed as aforesaid
Third Assignment. — We have also assigned you, and each and every of you, either alone or with any one or more of such justices to be appointed as aforesaid
And therefore We command you and each and every of you that you diligently apply yourselves to keep and cause to be kept the peace and all laws of Our Realm and of Our said
In testimony whereof, We have caused these Our Letters to be made Patent, and the seal of Our said
Witness Our Trusty and Well‑beloved, etc., etc., etc., Governor, etc.,
at this day of 20 .
[Second Schedule amended by No. 73 of 1994 s. 4.]
[s. 16]
Oath of allegiance
I, A.B., do *sincerely promise and swear that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second, as lawful Sovereign of the United Kingdom, Australia and Her other Realms and Territories. †So help me God!
Oath of office
I, A.B., do *sincerely promise and swear that as a Justice of the Peace I will at all times and in all things do equal justice to the poor and rich and discharge the duties of my office according to the laws and statutes of the Realm and of this State to the best of my knowledge and ability, without fear, favour, or affection. †So help me God!
* In the case of an affirmation in lieu of oath, substitute “solemnly and sincerely promise and affirm” for “sincerely promise and swear”.
† Omit, in the case of affirmation in lieu of oath.
[Fourth and Fifth Schedules repealed by No. 53 of 1992 s. 17(3) and (4).]
[Sixth Schedule repealed by No. 53 of 1992 s. 24.]
[Seventh Schedule repealed by No. 22 of 1968 s. 39.]
[Eighth Schedule repealed by No. 92 of 1994 s. 20.]
[s. 101A]
The hearing is going to be adjourned to enable the prosecution to make available to you copies of statements of its witnesses or notice of statements recorded on video‑tape. With these you will be given copies of any other relevant documents or exhibits or, if it is not practicable to copy a document or exhibit, a description of it and notice of where and when it can be inspected.
The prosecution may apply to have witnesses examined in court before the hearing resumes. The evidence of any witnesses so examined will be recorded in depositions and you will be provided with copies of those depositions or notice of depositions recorded on video‑tape.
The statements, depositions and any other papers will be served on you or your solicitor at least 14 days before the resumption of the hearing.
When the hearing is resumed you will be required to plead to the charge [charges]. The prosecution will then be required to tender certain statements and video‑tapes.
You will be committed to the Supreme Court [or District Court] for trial, or sentence, as the case requires. The evidence will be sent to the Supreme Court [or District Court] and will not be publicised before the trial.
The hearing will now be adjourned for . . . days.
Remand/Bail.
[Ninth Schedule inserted by No. 27 of 2002 s. 14.]
Notes
1This reprint is a compilation as at 16 May 2003 of the Justices Act 1902 and includes the amendments made by the other written laws referred to in the following table
2Under the Public Sector Management Act 1994 s. 112(1) a reference to the Public Service Act 1978 is to be read as a reference to the Public Sector Management Act 1994. The reference was changed under the Reprints Act 1984 s. 7(3)(g).
3Magisterial districts proclaimed in Gazette 8 Nov 1940 p. 1
4See the Justices (Recording of Depositions) Regulations 1987.
5Repealed by the Crown Suits Act 1947 s. 2.
6Limitation Act 1935 s. 8 and Second Schedule were inserted by No. 73 of 1954 s. 8.
7The Second Schedule was inserted by the Metric Conversion Act Amendment Act 1973 s. 4.
8Acts Amendment (Evidence) Act 1991 s. 3 is a transitional provision.
9Acts Amendment (Evidence of Children and Others) Act 1992 s. 13 is a transitional provision.
10The Acts Amendment (Jurisdiction and Criminal Procedure) Act 1992 s. 18‑23 did not come into operation and were repealed by the Acts Amendment (Fines, Penalties and Infringement Notices) Act 1994 s. 3.
11Acts Amendment (Ministry of Justice) Act 1993 Pt. 19 contains savings and transitional provisions.
12Sentencing (Consequential Provisions) Act 1995 s. 62 (
“
62.Transitional Provisions
(1)In this section “commencement” means the commencement of the Sentencing Act 1995.
(2)If immediately before commencement a person is bound by a recognisance to which section 154A of the principal Act applies but to which that section as re‑enacted by section 59 would not apply on and after commencement, then on and after commencement section 154A of the principal Act as it was immediately before commencement continues to apply to that person in respect of the recognisance.
[Section 62 amended by No. 10 of 1998 s. 64(1).]
”.
13The Restraining Orders Act 1997 s. 80(3) reads as follows:
“
(3)Notwithstanding subsection (1), Parts VII and VIIA of the Justices Act 1902 are taken to remain in force to the extent necessary for the purposes of Part 9.
”.
14The amendment in the Court Security and Custodial Services (Consequential Provisions) Act 1999 s. 21 is not included because the Schedule it sought to amend had been repealed by the Acts Amendment (Jurisdiction and Criminal Procedure) Act 1992 s. 17(3) before the amendment purported to come into operation.
15The Criminal Law (Procedure) Amendment Act 2002 s. 15 reads as follows
“
(1)In this section —
“commencement” means the coming into operation of this Part
“new provisions” means the Justices Act 1902 as amended by this Part;
“old provisions” means the Justices Act 1902 as it was immediately before commencement.
(2)If immediately before commencement a complaint stands adjourned under section 101A(g) of the old provisions, then on and from commencement the new provisions operate in respect of the complaint and the complaint is to be regarded as having been adjourned to a committal mention under the new provisions.
(3)If immediately before commencement proceedings had commenced but not been completed (whether or not they then stand adjourned) under section 101B of the old provisions in relation to a complaint, then —
(a)on and from commencement the new provisions operate in respect of the complaint; and
(b)at the first opportunity after commencement the justices must adjourn those proceedings to a committal mention under the new provisions.
(4)If immediately before commencement a complaint stands adjourned under the old provisions to a date for a preliminary hearing but that hearing has not commenced, then —
(a)on and from commencement the new provisions operate in respect of the complaint; and
(b)on the date set for a preliminary hearing the justices must either —
(i)if both the prosecution and the defendant consent — conduct a committal mention under the new provisions in respect of the complaint; or
(ii)otherwise — adjourn the complaint to a committal mention under the new provisions.
(5)If under subsection (4)(b)(i) the justices conduct a committal mention in respect of a complaint, section 103 of the new provisions does not operate in respect of the complaint.
(6)If immediately before commencement a preliminary hearing had commenced but not been completed (whether or not the hearing then stands adjourned) under the old provisions in relation to a complaint, then on and from commencement the hearing is to be conducted and the complaint dealt with under the old provisions.
”.
Defined Terms
[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]
Defined TermProvision(s)
charge of an indictable offence4
chief executive officer9(5)
clerk of petty sessions183
committal mention97B
complaint4
contempt offence97B
conviction4
Court183
decision4
defendant4
disposed of 194(6)
Full Court183
gaol4
hearing4
indictable offence4
indictment4
information4
information and complaint4
jurisdiction4
justices4
keeper of a gaol4
legal practitioner183
magistrate4
matter4
Minister4
oath4
officer136(6)
order4
party to an appeal206A(6)
payment order155(1)
police officer4
public officer136AA(3)
Registrar183
simple offence4
summary conviction4
the charge97(1)
the defendant136(1)
the record of proceedings148(2)
By Authority: JOHN A. STRIJK, Government Printer