An Act to consolidate the Statutes relating to Magistrates and Justices of the Peace, to proceedings before and in the nature of appeal from and to proceedings against such Magistrates and Justices; and to other matters in connection therewith.
Part 1 Preliminary
1 Name of Act
This Act may be cited as the Justices Act 1902.s 1: Am 1937 No 35, Second Sch; 1940 No 6, sec 2 (1) (v); 1947 No 3, sec 2 (1) (l); 1955 No 16, sec 7 (1) (c); 1967 No 28, sec 4 (a); 1970 No 52, Second Sch; 1974 No 94, sec 7 (a); 1982 No 165, Sch 1 (1); 1983 No 32, Schs 1 (1), 2 (1); 1983 No 169, Sch 1 (1). Subst 1985 No 207, Sch 3 (1).
2 Repeals and savings
(1) The Acts mentioned in the First Schedule hereto are, to the extent therein expressed, hereby repealed, provided that no such repeal shall invalidate or affect any proceeding, act, or thing done or commenced before the passing of this Act.(2) All proceedings initiated before the passing of this Act shall be carried on as far as practicable according to the provisions of this Act, and, subject thereto, according to the provisions of the said Acts, which for that purpose shall be deemed to continue in force notwithstanding the repeal thereof.(3) All persons lawfully in custody, or bound by recognizances, at the time of the passing of this Act, under the provisions of any Act hereby repealed, shall be deemed to be in lawful custody, or to be so bound as aforesaid, under the provisions of this Act, and may be dealt with accordingly.(4) All persons appointed under any Act hereby repealed, and holding office at the time of the passing of this Act, shall be deemed to have been appointed under this Act.(5) All proclamations, notifications, rules, regulations and forms made or prescribed under the authority of any Act hereby repealed, and being in force at the time of the passing of this Act, shall, unless expressly altered by the provisions of this Act, be deemed to have been made or prescribed under the authority of this Act.
3 Definitions
(1) In this Act, unless the context or subject-matter otherwise indicates or requires:Accused person means an accused person, as referred to in the Bail Act 1978.Attendance notice means a notice authorised to be issued under section 100AB.means:(a) a Magistrate or a Children’s Magistrate, or(b) a Justice employed in the Attorney General’s Department, or(c) a Justice employed in a prescribed office.Bail has the same meaning as it has in the Bail Act 1978.Chief Magistrate means the Chief Magistrate of the Local Courts appointed under the Local Courts Act 1982.Committal proceedings means a hearing before a Justice or Justices for the purpose of deciding whether a person charged with an offence should be committed for trial or for sentence, and includes any proceedings that are preliminary thereto or ancillary thereto.District Court means the District Court of New South Wales in its criminal jurisdiction (except where used in connection with registrars of the District Court).Justice means a Justice of the Peace.Local Court means a Local Court established under the Local Courts Act 1982.Magistrate means a Magistrate within the meaning of the Local Courts Act 1982.Regulations means regulations made under this Act.Rule Committee means the Local Court Rule Committee established under the Local Courts Act 1982.(2)(a) Any reference in sections 35, 39, 40, 47, 73, 115, 118 and 119 to “deposition” or “depositions” shall, where the deposition or depositions was or were recorded by any of the means (other than writing) referred to in section 36 (4) or 70 (4), be read and construed as a reference to a transcript, certified in the manner prescribed, of the deposition or depositions as so recorded.(b) The reference in section 126 to “deposition” where firstly and lastly occurring shall, where the deposition was recorded by any of the means (other than writing) referred to in section 70 (4), be read and construed as a reference to a transcript, certified in the manner prescribed, of the deposition as so recorded.(c) Except in so far as the context or subject-matter otherwise indicates or requires, any reference in this Act (except in section 36 and in any other prescribed provision):(i) to a deposition includes a reference to a written statement, andadmitted as evidence under section 48A.(ii) to the taking of a deposition includes a reference to the admission of a written statement,(3) Where the expression “accused person” is used in a provision of this Act, it refers to a person in his or her capacity as an accused person in relation only to the offence to or with which that provision relates or is connected.s 3: Am 1954 No 32, sec 2 (a); 1978 No 63, Sch 1 (1); 1978 No 162, Sch 1 (1); 1979 No 178, Sch 2 (1); 1982 No 165, Sch 1 (2); 1983 No 169, Sch 1 (2); 1985 No 207, Sch 2 (1); 1988 No 99, Sch 2 (1); 1998 No 49, Sch 16 [1] [2]; 1998 No 107, Sch 2 [1].
4 (Repealed)
s 4: Am 1947 No 3, sec 2 (1) (a); 1982 No 165, Sch 1 (3); 1999 No 94, Sch 4.125 [1]. Rep 1999 No 94, Sch 4.35 [1].
4A Notes
Notes included in this Act do not form part of this Act.s 4A: Ins 1998 No 137, Sch 1 [1].
Part 2
5 (Repealed)
pt 2: Rep 1982 No 165, Sch 2.
s 5: Am 1970 No 11, sec 85; 1971 No 70, sec 2 (1). Rep 1982 No 165, Sch 2.
Part 3 Magistrates and Justices enabling—allegation of jurisdiction
pt 3, hdg: Am 1947 No 3, sec 2 (1) (m); 1982 No 165, Sch 3 (1).
6 Definition of police districts
Police district in this Part means police district as constituted for the time being by notification in the Gazette or otherwise.
7–9 (Repealed)
s 7: Am 1909 No 24, secs 2, 3; 1916 No 68, sec 16 (a); 1947 No 3, sec 2 (1) (b). Rep 1982 No 165, Sch 3 (2).
s 7A: Ins 1909 No 24, sec 4. Am 1947 No 3, sec 2 (1) (c); 1979 No 178, Sch 2 (2). Rep 1982 No 165, Sch 3 (2).
s 8: Am 1916 No 68, sec 16 (b). Rep 1947 No 3, sec 2 (1) (d).
s 9: Am 1973 No 10, sec 4. Rep 1982 No 165, Sch 3 (2).
10 Jurisdiction of Magistrates
(1) Every Magistrate may do alone any act and exercise alone any power or jurisdiction which:(a) under any law in force at the commencement of the Justices (Amendment) Act 1947 may be done or exercised by any Police Magistrate, Justice or Justices, howsoever sitting and adjudicating or acting, or(b) under any law not containing an express enactment to the contrary made after such commencement may be done or exercised by any Justice or Justices howsoever sitting and adjudicating or acting.And all the provisions of this or any other Act auxiliary to the jurisdiction of such Justice or Justices shall be applicable also to the jurisdiction of a Magistrate.(2) Such authority and jurisdiction shall extend and apply to cases where the act or jurisdiction is, or hereafter may be, required to be done or exercised by a Justice or Justices sitting or acting as a Local Court held:(a) at a particular place, orbeing a place or district, as the case may be, appointed under section 6 (1) of the Local Courts Act 1982 as well as to cases where the act or jurisdiction is not so required to be done or exercised.(b) within a particular district,Any enactment authorising or requiring persons to be summoned or to appear by or before a Justice or Justices sitting or acting as a Local Court held as referred to in subsection (2) shall in the like cases be deemed to authorise or require persons to be summoned or to appear before a Magistrate sitting or acting as that Local Court.s 10: Am 1947 No 3, sec 2 (1) (e); 1982 No 165, Sch 3 (3).
11 Duties etc of Magistrates, as to stating cases, depositions etc
The provisions and requirements of every statute, regulation, general rule, or order of any Court, by which any liability, duty, obligation, or authority in respect of any case stated, depositions, conviction, order, warrant, or other document, instrument, matter, or proceeding of what kind soever is now or may hereafter be cast upon, incurred, or exercisable by any one or more than one Justice, shall be equally applicable to every Magistrate.s 11: Am 1947 No 3, sec 2 (1) (f); 1982 No 165, Sch 3 (4).
12 (Repealed)
s 12: Rep 1982 No 165, Sch 3 (5).
13 Limitation of powers of other Justices within areas to which Magistrates appointed
(1) No Justice other than a Magistrate shall:(a) within the metropolitan police district or the police district of Newcastle, orsit either alone or with other Justices at any Local Court for the purpose of adjudicating in a summary way in respect of any information, complaint, or matter, or of making any order or of deciding any matter on appeal which by law Justices are empowered to hear and determine, deal with, or decide:(b) within any police district or part thereof named or described by the Governor from time to time by proclamation published in the Gazette,Provided that nothing in this Part shall abridge or prejudice the ministerial powers of Justices in committal cases, or the powers of Justices to take any information or issue any summons or grant, issue, or endorse any warrant in any case in which Justices might by law have exercised any such power if this section had not been enacted.Provided further that nothing in this Part shall abridge or prejudice the powers of any Justice relating to bail.(2) Any proclamation made pursuant to paragraph (b) of subsection (1) may be revoked by a subsequent proclamation published in the Gazette. Any proclamation so revoked shall cease to have effect.s 13: Am 1908 No 12, sec 23; 1909 No 24, sec 5; 1916 No 68, sec 16 (c); 1940 No 6, sec 2 (1) (a); 1947 No 3, sec 2 (1) (g); 1970 No 96, Sch 1; 1978 No 162, Sch 1 (2); 1979 No 70, sec 3; 1982 No 165, Sch 3 (4) (6).
14, 15 (Repealed)
s 14: Rep 1982 No 165, Sch 3 (7).
s 15: Am 1909 No 24, sec 6; 1993 No 47, Sch 1. Rep 1998 No 49, Sch 16 [3].
16 Provisions relating to Justices and their duties in this and other Acts to apply to Magistrates
All the provisions of this Act and of all other Acts relating to Justices and their duties, so far as the same may be applicable, shall be applicable to Magistrates.s 16: Am 1982 No 165, Sch 3 (4) (8).
17 (Repealed)
s 17 and hdg: Rep 1947 No 3, sec 2 (1) (h).
18 Magistrate may perform duties of Clerk of the Local Court where no such clerk appointed
In any police district for which a Clerk of the Local Court is not appointed, a Magistrate may discharge all or any of the duties which now do or may hereafter pertain to the office of Clerk of the Local Court; and all acts done by such Magistrate in pursuance hereof shall be as valid and effectual in law as if done by such clerk, and all notices required to be given to such clerk, and all other matters and things required to be done with, or in reference to, such clerk, may be given to, or done with, or in reference to, such Magistrate, and shall have the like force and effect.s 18: Am 1947 No 3, sec 2 (1) (i); 1982 No 165, Sch 3 (4) (9).
19 Justices—capacity to act in certain cases
No Justice shall be incapable of acting as a Justice at any Local Court on the trial of any person for an offence under any Act or by-law to be put in execution by a municipal corporation, or by trustees, or by any other local authority, by reason only of being a ratepayer or one of a class of persons who are liable in common with others to contribute to, or who may be benefited by, any fund to the account of which any penalty or any portion thereof payable in respect of such offence is directed to be carried, or of which it will form part, or who are liable to contribute to any rate or expenses in diminution of which such penalty or any portion thereof will go:s 19, hdg: Rep 1983 No 32, Sch 2 (2).Provided that no Justice, being a mayor, or a councillor, or officer of any municipality, shall act as aforesaid in any case affecting such municipality or touching any matter in which the municipality shall as such be directly or indirectly interested.s 19: Am 1974 No 94, Sch 1; 1982 No 165, Sch 3 (10); 1995 No 11, Sch 1.66.
20 Act done by Justice to be taken to be within his or her jurisdiction
In all cases every act done or purporting to have been done by or before any Justice shall be taken to have been within his or her jurisdiction, without an allegation to that effect, until the contrary is shown.s 20, hdg: Rep 1983 No 32, Sch 2 (2).
Part 4 Procedure before Justices
pt 4, hdgs to sections: Rep 1983 No 32, Sch 2 (2)–(4) (8).
Division 1 Indictable offences
pt 4, div 1, hdgs to sdivs 1–9: Ins 1983 No 32, Sch 2 (3)–(5) (7).
Subdivision 1 Informations
21 When information may be laid
An information may be laid before a Justice in any case where any person has committed or is suspected to have committed any treason or other indictable offence:(a) in New South Wales,(b) on the high seas, or in any creek, harbour, or other place in which the Admiralty of England have or claim to have jurisdiction,(c) on land beyond the seas, when for such offence an indictment may legally be preferred in New South Wales.
22 How information to be laid
Any such information may be by parol and without any oath unless it is intended that a warrant in the first instance shall be issued as hereinafter provided, in which case the information shall be laid in writing, and the matter thereof substantiated by the oath of the informant or of a witness.
22A Information taken to be laid
(1) Without limiting the operation of this Subdivision and Subdivision 2, an information is taken to have been laid before a Justice, and a summons issued and served, in respect of a person if:(a) the person has been charged with an offence and served with a copy of a charge sheet containing details of the offence, and(b) the person has been subsequently released on bail, and(c) a copy of the charge sheet or other document setting out the details of the offence, and a bail undertaking under the Bail Act 1978, have been lodged in respect of the person with the clerk of a Local Court or given to a Magistrate.(2) For the purposes of this Act:(a) the copy of the charge sheet or other document setting out the details of the offence lodged with the clerk of a Local Court or given to a Magistrate is taken to be an information that is not substantiated by the oath of the informant or witness, and(b) the bail undertaking is taken to be a summons.s 22A: Ins 1997 No 107, Sch 1 [1].
Subdivision 2 Issue of warrants and summonses
23 Issue of warrant in first instance
Whenever any such information is laid before a Justice against any person and the matter thereof substantiated by the oath of the informant or a witness, such Justice may, if such person is not then in custody, issue his or her warrant in the first instance for the apprehension of such person.
24 Issue of summons
Whenever an information in respect of an indictable offence other than one within paragraphs (b) and (c) of section 21 is laid before a Justice against any person as hereinbefore provided, such Justice may, if such person is not then in custody, issue his or her summons for the appearance of such person:Provided that nothing herein contained shall prevent any Justice from issuing his or her warrant before or after the time appointed in a summons for the appearance of a defendant against whom an information for an indictable offence has been duly laid and substantiated as hereinbefore provided.
25 Issue of warrant where indictment filed
(1) Where an indictment has been filed in the Supreme Court or the District Court against any person then at large, the proper officer at such Court shall at any time during the sittings of such Court if the person so indicted fails to appear and plead to such indictment, upon application by or on behalf of the prosecutor, grant to the prosecutor or person applying on his or her behalf a certificate that such indictment has been filed.(2) Upon production of such certificate to any Justice such Justice shall:(a) in every case where the person so indicted is, at the time of the application for the said certificate and of such production thereof, confined in a correctional centre for any other offence than that charged in the said indictment, upon proof upon oath that the person so confined in a correctional centre is the person charged and named in such indictment, issue his or her warrant directed to the gaoler of the correctional centre in which such person is so confined, commanding the gaoler to detain such person in his or her custody until, by His Majesty’s writ of habeas corpus, the person is removed therefrom for the purpose of being tried upon the said indictment, or until the person is otherwise removed or discharged out of custody by due course of law,(b) in other cases issue his or her warrant to apprehend the person so indicted, and to cause the person to be brought before the Justice or any other Justice to be dealt with according to law, and that Justice or any other Justice, when any person apprehended under such warrant is brought before the Justice, shall, upon proof upon oath that such person is the person charged and named in such indictment, and without further inquiry, commit the person for trial.s 25: Am 1909 No 24, sec 7; 1974 No 94, Sch 1; 1978 No 162, Sch 1 (3); 1986 No 212, Sch 1; 1987 No 48, Sch 12 (1); 1988 No 99, Sch 2 (2); 1998 No 107, Sch 2 [2]; 1999 No 94, Sch 4.35 [2] [3].
26 (Repealed)
s 26: Am 1940 No 6, sec 2 (1) (b); 1970 No 52, Second Sch. Rep 1998 No 172, Sch 5 [1].
Subdivision 3 Form and service of summons
27 Form of summons
Every summons for the appearance of any person shall:(a) be under the hand and seal of the Justice issuing it, and(b) be directed to such person, and(c) state shortly the matter of the information, and(d) require such person to appear at a certain time and place before such Justice as shall then be there to answer to the information and be dealt with according to law.s 27: Am 1998 No 172, Sch 5 [2].
28 Manner of service of summons
(1) Every summons shall be served by a constable upon the person to whom it is directed by delivering it to the person personally, or if the person cannot conveniently be met with then by leaving it with some person for the person at his or her last or most usual place of abode.(2) Service of a summons in manner aforesaid may be proved by the oath of the police constable who served it, or by affidavit or otherwise.
Subdivision 4 Form and execution of warrant
29 Form of warrant
(1) Every warrant for the apprehension of any person shall:(a) be under the hand and seal of the Justice issuing it, and(b) be directed to a police constable or other person by name; or generally to the senior officer of police of the district or place where it is to be executed, or to such officer of police and to all other police constables in New South Wales, or generally to all police constables in New South Wales, and(c) name or otherwise describe the person whose appearance is required, and(d) state shortly the matter of the information, and(e) order the police constable or person to whom it is directed to apprehend the person whose appearance is required, and cause the person to be brought before such Justice, or any other Justice, to answer to the information and be dealt with according to law.(2)(i) It shall not be necessary to make any such warrant for the apprehension of a defendant returnable at any particular time, but every such warrant may continue in force till it is executed.(ii) Every other such warrant shall be returnable at a time and place to be stated therein.(3) Every such warrant may be executed by apprehending the person against whom it is directed at any place in New South Wales.(4) Any such warrant may be issued on a Sunday as well as on any other day.s 29: Am 1985 No 38, Sch 1; 1998 No 172, Sch 5 [3].
Subdivision 5 Defects in form and variances
30 What alleged defects or variances immaterial
(1) No objection shall be taken or allowed to any information, summons, or warrant in respect of:(a) any alleged defect therein in substance or in form, or of(b) any variance between any information, summons, or warrant and the evidence adduced in support of the information at the hearing.(2) Where in the case of a summons or warrant any such defect or variance appears to the Justice or Justices present and acting at the hearing to be such that the defendant has been thereby deceived or misled such Justice or Justices may, at the request of the defendant, adjourn the hearing of the case to some future day.
Subdivision 6 Warrant on default in appearance to summons
31 On non-appearance to summons, warrants may be issued
(1) Wherever any person for whose appearance a summons has been issued does not appear at the time and place appointed thereby, any Justice may, upon proof of the due service of the summons upon such person, issue his or her warrant for the apprehension of such person.(2) The Justice or Justices before whom a person is brought after having been apprehended under a warrant referred to in subsection (1):(a) subject to the Bail Act 1978, must order that a warrant be issued for the committal of the person to a correctional centre or other place of security, and(b) must order the person to be brought before the Justice or Justices at such time and place as is specified in the order, and(c) must give due notice to the informant or complainant of the time and place so specified.(3) A warrant under this section may be issued by any Justice.(4) (Repealed)s 31: Am 1909 No 24, sec 8; 1978 No 162, Sch 1 (4); 1998 No 107, Sch 2 [3]; 1998 No 172, Sch 5 [4]–[6].
Subdivision 7 Committal proceedings
32 Place of hearing to be an open court
Subject to any Act or other law, the room or place in which a Justice or Justices takes or take the examination and statements in any case where a person is charged with an indictable offence shall be deemed to be an open and public court, to which all persons may have access so far as that room or place can conveniently contain them.s 32: Subst 1982 No 165, Sch 4 (1).
33 When adjournment allowed
(1) The Justice or Justices before whom a defendant appears or is brought may adjourn the hearing of any information in any case, whether before or during the hearing, where from the absence of witnesses or from any reasonable cause it is necessary or advisable to defer the hearing or further hearing.(2) Such adjournment shall be to a time and place to be appointed by the Justice or Justices adjourning the hearing:Provided that unless with the consent of the defendant such adjournment shall not exceed eight clear days, but this proviso does not apply where the defendant is refused bail (as referred to in section 25 of the Bail Act 1978).s 33: Am 1909 No 24, sec 9; 1978 No 162, Sch 1 (5).
34 How defendant to be dealt with during period of adjournment
(1) Where the hearing is adjourned under section 30, section 33, or section 41, the Justice or Justices may, subject to the Bail Act 1978:(a) remand the defendant to a correctional centre, police station or court cell complex during such adjournment, or(b) if the adjournment is for a period not exceeding three clear days, verbally order any constable or other person by name to keep the defendant in his or her custody, and bring the defendant before the Justice or Justices acting at the time and place to which the hearing is adjourned.(c) (Repealed)Provided that where the defendant remains in custody any Justice or Justices may order the defendant to be brought before the Justice or Justices or any other Justice or Justices at any time before the expiration of the time for which the hearing was adjourned, and the gaoler or officer in whose custody the defendant then is shall duly obey such order.(2) Where a person is remanded to a correctional centre, police station or court cell complex pursuant to paragraph (a) of subsection (1), the warrant so remanding such person may be signed by any Justice.s 34: Am 1940 No 6, sec 2 (1) (c); 1957 No 61, sec 2 (1) (a); 1971 No 70, sec 3 (a); 1978 No 162, Sch 1 (6); 1999 No 94, Sch 4.35 [4] [5].
35 Where principal witnesses reside at some other place, Justices may order defendant to be taken there
(1) The Justice or Justices before whom a defendant appears or is brought, on being informed that the principal witnesses to prove the offence with which the defendant is charged reside in some other place where the offence is alleged to have been committed, may, subject to the Bail Act 1978, order the defendant to be conveyed to such place and taken before a Justice or Justices to further answer to the charge, and to be further dealt with according to law.The warrant necessary to carry the abovementioned order into effect may be signed by any Justice.(2) In every such case the Justice or Justices before whom the defendant originally appears or is brought shall cause the information and, if the Justice or Justices so directs or direct, the depositions taken before the Justice or Justices to be delivered to the Justice or Justices before whom the defendant is taken under such warrant.s 35: Am 1909 No 24, sec 10; 1954 No 32, sec 2 (b); 1971 No 70, sec 3 (b); 1978 No 162, Sch 1 (7).
36 How evidence to be taken
(1) Every witness shall have the usual oath administered to him or her before he or she is examined.(2) The prosecutor may himself or herself, or by his or her counsel or attorney, conduct his or her case, and may examine and cross-examine the witnesses giving evidence for or against him or her.(3) The defendant may himself or herself, or by his or her counsel or attorney, make full answer and defence, and may give evidence himself or herself, and may examine and cross-examine the witnesses giving evidence for or against him or her respectively.(4) The deposition of every witness shall be recorded by means of writing, shorthand, stenotype machine, sound-recording apparatus or such other means as may be prescribed.(5) Where, for the purposes of subsection (4), the deposition of a witness is recorded by means of writing, it shall be read over either to or by the witness, as the Justice or Justices may direct, and be signed by him or her and by the Justice or Justices.s 36: Am 1954 No 32, sec 2 (c); 1971 No 70, sec 3 (c); 1978 No 63, Sch 1 (2).
37, 38 (Repealed)
s 37: Rep 1998 No 172, Sch 5 [7].
s 38: Am 1940 No 6, sec 2 (1) (d); 1986 No 212, Sch 1. Rep 1996 No 123, Sch 1 [1].
39 Documents to be transmitted for trial
(1) Where a person is committed for trial the committing Justice or Justices shall, as soon as possible after the conclusion of the case, transmit to the proper office the information (if any), the depositions of the witnesses, the certificate mentioned in section 36 of the Criminal Procedure Act 1986 (if any), the statement of the defendant, and if the defendant is released on bail, his or her bail undertaking, the instrument by which any bail conditions were imposed on the grant of bail and any agreement or acknowledgment entered into or made pursuant to any such condition.(2) The appropriate officer shall, after such transmission and before the day of trial, have the same duties and be subject to the same liabilities in respect of the said several documents upon a certiorari directed to the appropriate officer or upon a rule or order directed to the appropriate officer in lieu of that writ as the Justice or Justices would have had and been subject to, upon a certiorari to the Justice or Justices if such documents had not been so transmitted.(3) The appropriate officer shall at any time after the opening of the Court, at the sittings at which the trial is to be had, deliver the said several documents, or any of them, to the proper officer of the Court, if and when the Judge presiding thereat so directs.(4) A copy of the said several documents transmitted to the appropriate officer shall, subject to and in accordance with the regulations, be transmitted by the officer to the Director of Public Prosecutions.(5) In this section, appropriate officer, in relation to a person committed for trial to:(a) the Supreme Court—means the registrar of the Criminal Division of the Supreme Court,or such officer as may be prescribed by the regulations.(b) the District Court—means the registrar of the District Court for the nearest proclaimed place,s 39: Am 1978 No 162, Sch 1 (8); 1986 No 212, Sch 1 (am 1987 No 48, Sch 31); 1996 No 123, Sch 1 [2]; 1997 No 85, Sch 1.5; 1999 No 94, Sch 4.35 [6].
40 Copies of depositions
(1) A person charged upon an information under section 21 and committed for trial may obtain from the appropriate officer, free of charge, one copy of the depositions taken at the hearing of the matter of the information.(2) If a person has been charged upon an information under section 21 (whether or not the person has been committed for trial), any person is, on showing sufficient cause to the appropriate officer or the clerk of the Justice or Justices who heard the matter of the information, entitled to demand and have copies of the depositions.(2A) Subject to this section, the copies shall be supplied by the appropriate officer or clerk on payment of a fee calculated at the rate prescribed by the regulations.(3) In this section, appropriate officer has the same meaning as in section 39.s 40: Am 1940 No 6, sec 2 (1) (e). Subst 1973 No 11, sec 3 (a). Am 1986 No 212, Sch 1; 1987 No 48, Sch 12 (2).
41 Procedure on hearing of charge of indictable offence
(1) Whenever a person charged with an offence upon an information under section 21 appears or is brought before a Justice or Justices voluntarily upon summons or upon apprehension under or without warrant or in custody for such or any other offence, the Justice or Justices shall, if the person so charged has been provided with a written copy of the charges against the person, take the evidence for the prosecution in manner hereinbefore provided.(1A) If the informant, having received notice of the time and place, does not appear in person or by his or her counsel or attorney when the defendant appears or is brought, as provided in subsection (1), before the Justice or Justices, the Justice or Justices shall discharge the defendant as to the information under inquiry, unless for some reason the Justice or Justices think it proper to adjourn the hearing to an appointed time and place:Provided that unless with the consent of the defendant such adjournment shall not exceed eight clear days, but this proviso does not apply where the defendant is refused bail (as referred to in section 25 of the Bail Act 1978).(1B)(a) Subject to this section, the evidence for the prosecution shall be taken in the presence of the defendant.(b) Upon application made by a defendant appearing before the court or made by his or her counsel or attorney on his or her behalf, the Justice or Justices may excuse the defendant from attendance during the taking of any evidence for the prosecution, if the Justice or Justices is or are satisfied that during his or her absence the defendant will be represented during the taking of that evidence by counsel or attorney.(c) Any period during which a defendant is excused, pursuant to paragraph (b), from attendance during the taking of any evidence shall, in relation to the defendant so excused, be deemed to be an adjournment for the purposes of section 34.(d) Where, having appeared or been brought before a Justice or Justices as referred to in subsection (1), a person so referred to subsequently fails to appear or be brought before the Justice or Justices, the taking of evidence for the prosecution may, notwithstanding paragraph (a), commence or continue in the absence of the defendant if no good and proper reason is shown for the absence of the defendant.(e) The evidence for the prosecution shall not be taken under paragraph (d) in the absence of a defendant unless:(i) the defendant has been served under section 48B with a copy of any written statement to be tendered as evidence in the proceedings, or(ii) the defendant has been informed of the time set by the Justice or Justices for the commencement of the taking of the evidence for the prosecution.(2) When all evidence for the prosecution has been taken, the Justice or Justices shall, after considering all the evidence before the Justice or Justices:(a) if not of the opinion referred to in paragraph (b)—forthwith order the defendant to be discharged as to the information then under inquiry, or(b) if of the opinion that, having regard to all the evidence before the Justice or Justices, the evidence is capable of satisfying a jury beyond reasonable doubt that the defendant has committed an indictable offence:(i) if the defendant is present—proceed as provided by subsections (4), (5) and (6), or(ii) if the defendant is not present—proceed as provided by subsection (6).(3) (Repealed)(4)(i) Where the Justice or Justices form the opinion referred to in subsection (2) (b) that the evidence is capable of satisfying a jury beyond reasonable doubt that the defendant has committed an indictable offence, the Justice or Justices shall:(a) say to the defendant: “Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so, but whatever you say will be recorded, and may be given against you in evidence at your trial”, and(b) before the defendant makes any statement in answer, inform the defendant and give the defendant clearly to understand that the defendant has nothing to hope from any promise of favour and nothing to fear from any threat which may have been holden out to the defendant to induce the defendant to make any admission or confession of his or her guilt, but that whatever the defendant then says may be given in evidence against the defendant upon his or her trial notwithstanding such promise or threat.(ii) Whatever the defendant then says shall be recorded by one of the means referred to in section 36 (4).(iii) Such statement if taken down in writing shall be read over to the defendant and shall be signed by the Justice or Justices.(iv) Such statement:(a) if taken down in writing, may be given in evidence at the trial of the defendant without further proof unless it be proved that the Justice or Justices by whom it purports to be signed did not in fact sign it,(b) if in the form of a transcript, certified in the prescribed manner, of a record (other than in writing) made pursuant to paragraph (ii), may be given in evidence at the trial of the defendant if it is proved on oath that the record so made is a true record of the statement made by the defendant and that the transcript is a correct transcript of the record so made.(v) Nothing herein shall prevent the prosecutor in any case from giving in evidence any admission or confession or other statement of the defendant, made at any time, which by law would be admissible as evidence against the defendant.(5)(i) After the defendant has made such statement, or if the defendant makes no such statement, the Justice or Justices shall ask the defendant if he or she desires to give evidence himself or herself or to call any witness on his or her behalf.(ii) Any evidence then given by or on behalf of the defendant shall be taken by the Justice or Justices in manner hereinbefore provided in respect of evidence for the prosecution.(6) When all the evidence for the prosecution and any evidence for the defence have been taken, the Justice or Justices shall, after considering all the evidence before the Justice or Justices:(a) if of the opinion that, on the basis of all the evidence before the Justice or Justices, there is a reasonable prospect that a jury would convict the defendant of an indictable offence—commit the defendant for trial, or(b) if not of that opinion—forthwith order the defendant to be discharged as to the information then under inquiry.(7) Where, pursuant to subsections (2) (b) (ii) and (6), a defendant has been committed for trial, a Magistrate or Judge may set aside the order for committal and any warrant of commitment issued thereon if, upon the application of the defendant made before the presentation of an indictment against the defendant, good and proper reason is shown for the absence of the defendant and the Magistrate or Judge is satisfied that it is in the interests of justice to do so.(8) A reference in this section to a jury is a reference to a reasonable jury properly instructed.(8A) For the purposes of committal proceedings, the Justice or Justices must not exclude evidence on any of the grounds set out in section 90 (Discretion to exclude admissions) or Part 3.11 (Discretions to exclude evidence) of the Evidence Act 1995.(9) The Justice or Justices may at any stage during the examination or cross-examination of any witness giving evidence for the prosecution or the defence terminate the examination or cross-examination on any particular matter if satisfied that any further examination or cross-examination on the matter will not assist the Justice or Justices in forming any opinion referred to in subsection (2) or (6).(10) If a person attends at committal proceedings because the person has been directed under section 48E to attend, the Justice or Justices must not allow the person to be cross-examined in respect of matters that were not the basis of the reasons for giving the direction, unless the Justice or Justices are satisfied that there are substantial reasons why, in the interests of justice, the person should be cross-examined in respect of those matters.(11) Despite any other provision of this section, the Justice or Justices may, at any time, on the application of the defendant and with the consent of the informant, commit the defendant for trial.s 41: Am 1940 No 6, sec 2 (1) (f); 1954 No 32, sec 2 (d); 1971 No 70, sec 3 (d); 1978 No 63, Sch 1 (3); 1978 No 162, Sch 1 (a); 1983 No 11, Schs 1 (1), 2; 1985 No 1, Sch 1 (1); GG No 73 of 2.5.1986, p 1928; 1987 No 235, Sch 2 (1); 1988 No 98, Sch 2; 1996 No 123, Sch 1 [3]–[5]; 1998 No 149, Sch 2.9; 2001 No 85, Sch 5 [1] [2].
41AA Depositions of previous connected proceedings may be read as evidence in committal proceedings
(1) In a hearing referred to in section 41, being a hearing in relation to a prescribed sexual offence within the meaning of the Criminal Procedure Act 1986, if:(a) the offence is alleged to have been committed in the course of a connected set of circumstances in which another prescribed sexual offence is alleged to have been committed, and(b) a person has been committed for trial in respect of, or has been convicted of, the other offence, andany of the depositions of the person referred to in paragraph (c) that were taken at the proceedings in which the person referred to in paragraph (b) was committed or tried in respect of the other offence may, in so far as they are relevant to the offence the subject of the hearing, be admitted as evidence.(c) each of the offences is alleged to have been committed on the same person,(2) If, in such a hearing, the person charged with the offence has been served with a copy of any such deposition and has had a reasonable opportunity to examine it, the person on whom the offence is alleged to have been committed may not, without the leave of the court, be asked by or on behalf of the person so charged:(a) to give in evidence any material contained in the deposition, or(b) to answer a question that is the same or substantially similar to a question an answer to which is contained in the deposition.s 41AA: Ins 1999 No 94, Sch 4.71 [1].
41A Payment of costs by informant
(1) The Justice or Justices:(a) when making an order discharging a defendant as to the information then under inquiry, ormay, in and by an order made by the Justice or Justices (which, in the circumstances referred to in paragraph (a), may be the same order as the order discharging the defendant) adjudge that the informant shall pay to the clerk of the court to be paid to the defendant (or, if the informant so elects, directly to the defendant) such costs as to the Justice or Justices seem just and reasonable.(b) when committing a defendant for trial for an indictable offence which is not identical in all respects to the indictable offence with which the defendant was charged,(2) The amount so allowed for costs shall in all cases be specified in the order requiring payment.(2A) Costs are not to be awarded in favour of a defendant unless the Justice or Justices is or are satisfied as to any of the following:(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecution in an improper manner,(c) that the prosecution unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the defendant might not be guilty or that, for any other reason, the proceedings should not have been brought,(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecution, it is just and reasonable to award costs.(2B) Subsection (2A) does not apply to the awarding of costs against an informant acting in a private capacity.(2C) For the purposes of subsection (2B), an officer of the Royal Society for the Prevention of Cruelty to Animals, or of any other charitable organisation under the Prevention of Cruelty to Animals Act 1979, is taken not to be acting in a private capacity if the officer acts as the informant in any proceedings under that Act.(3) (Repealed)s 41A: Ins 1967 No 13, sec 7 (1). Subst 1985 No 207, Sch 3 (2). Am 1991 No 79, Sch 1 (1); 1996 No 99, Sch 2.9 [1]; 1996 No 111, Sch 1.5 [1] [2].
42 Person committed for trial to be committed to correctional centre
(1) Where a person is committed for trial, the committing Justice or Justices shall, subject to the Bail Act 1978, commit the person to a correctional centre, there, subject to that Act, to be safely kept until the sittings of the Court before which the person is to be tried or until the person is delivered by due course of law.(2) Where a person is committed to a correctional centre pursuant to subsection (1), the warrant of commitment may be signed by any Justice.s 42: Am 1940 No 6, sec 2 (1) (g); 1973 No 11, sec 4 (a); 1978 No 162, Sch 1 (10); 1999 No 94, Sch 4.35 [7].
43 Conveying person committed for trial to correctional centre
(1) The constable or other person to whom a warrant of commitment is directed shall convey the person committed therein named or described to the correctional centre therein mentioned, and there deliver the person and the warrant to the keeper or governor of the correctional centre, who shall thereupon give the constable or other person delivering such person into his or her custody a receipt for such person, setting forth the state and condition in which such person was then delivered into the custody of such gaoler, keeper, or governor.(2) (Repealed)s 43: Am 1983 No 32, Sch 2 (6); 1985 No 1, Sch 1 (2); 1999 No 94, Sch 4.35 [8].
44–46 (Repealed)
s 44, hdg: Am 1978 No 162, Sch 1 (11).
s 44: Am 1970 No 52, Second Sch; 1973 No 11, sec 4 (b). Rep 1978 No 162, Sch 1 (12).
s 45: Am 1973 No 11, sec 4 (c); 1974 No 94, Sch 1. Rep 1978 No 162, Sch 1 (12).
s 46: Am 1937 No 35, Second Sch; 1973 No 11, sec 4 (d). Rep 1978 No 162, Sch 1 (12).
47 Transmission of bail undertaking etc of person in correctional centre
Where a person in a correctional centre on committal for trial is released on bail, the person to whom the bail undertaking is given shall forthwith transmit the bail undertaking, the instrument by which any bail conditions were imposed on the grant of bail and any agreement or acknowledgment entered into or made pursuant to any such condition to the committing Justice or Justices, who shall transmit them with the depositions to the Attorney-General.s 47: Subst 1973 No 11, sec 4 (e); 1978 No 162, Sch 1 (13). Am 1999 No 94, Sch 4.35 [7].
47A Corporations
(1) If a corporation (whether alone or jointly with some other person) is charged before a court with an indictable offence, the court may, if of the opinion that the evidence is sufficient to put the accused corporation on trial, make an order authorising an indictment to be filed:(a) for the offence named in the order, orand the order is taken to be a committal for trial.(b) for such other offence as the Attorney General or Director of Public Prosecutions considers proper,(2) The offence to which such a charge relates may be dealt with summarily if:(a) the offence is an offence that, in the case of an adult, may be dealt with summarily, and(b) the corporation does not appear by a representative or, if it does so appear, consents that the offence should be dealt with summarily.(3) If a corporation appears to such a charge by a representative, any answer to the question referred to in section 41 (4) (a) may be made on behalf of the corporation by that representative.(4) If a corporation does not appear to such a charge, it is not necessary to put the question referred to in section 41 (4) (a).s 47A: Ins 1999 No 94, Sch 4.71 [2].
Subdivision 7A Written statements in committal proceedings
pt 4, div 1, sdiv 7A: Ins 1983 No 169, Sch 1 (3).
48 Definitions
(1) In this Subdivision, except in so far as the context or subject-matter otherwise indicates or requires:(a) a reference, in relation to any committal proceedings, to the Justice or Justices is a reference to the Justice or Justices before whom the proceedings are held,(b) a reference to the defendant includes a reference to the counsel or attorney of the defendant,(c) a reference to the informant includes a reference to the counsel, attorney or other person who appears on behalf of the informant,(d) a reference to a proposed exhibit is a reference to a document or other thing identified in a written statement, as referred to in section 48A (2).(2) Where in any committal proceedings there are 2 or more defendants, the provisions of this Subdivision:(a) apply in relation to each such defendant to the extent only that a written statement referred to in this Subdivision is sought to be admitted as evidence against that defendant, andand references in this Subdivision to the defendant shall be construed accordingly.(b) so apply in relation to each such defendant as if that defendant were the only defendant,(3) In this Subdivision:(a) a reference to a written statement includes a reference to the transcript of a recording made by an investigating official of an interview with a child, during which the child was questioned by the investigating official in connection with the investigation of the commission or possible commission of an offence (as referred to in the Evidence (Children) Act 1997), and(b) a reference to the person who made such a written statement is taken to be a reference to the child who gave the interview.s 48: Am 1973 No 11, sec 4 (f). Rep 1978 No 162, Sch 1 (14). Ins 1983 No 169, Sch 1 (3). Am 1999 No 39, Sch 4 [1].
48AA Mandatory use of written statements in committal proceedings
(1) Evidence for the prosecution in any committal proceedings must (subject to this section) be given by means of written statements which are admissible as evidence under section 48A.(2) The evidence of a person need not be given by means of such a statement if the Justice or Justices is or are satisfied, on the application of the informant, that:(a) the statement was prepared but a copy of the statement could not reasonably be served on the defendant,(b) any other requirement of this Subdivision relating to the statement could not reasonably be complied with, or(c) the evidence is additional evidence of a person whose statement has already been admitted in evidence and a further written statement is not appropriate.(3) If an application under subsection (2) is not granted, the Justice or Justices may:(a) adjourn the committal proceedings in order to enable the appropriate written statement to be prepared and served on the defendant, or(b) proceed with the committal proceedings without taking that evidence.s 48AA: Ins 1987 No 235, Sch 1 (1).
48A Evidence in the form of written statements in committal proceedings
(1) Notwithstanding any other provision of this Act, but subject to this Subdivision, a written statement by any person is, if tendered by the informant, admissible in committal proceedings as evidence to the same extent as if it were oral evidence to the like effect given in those proceedings by that person.(2) Any document or other thing identified in any written statement admitted as evidence under this section shall, if the document or other thing is produced as an exhibit in the committal proceedings, be treated as if it had been identified before the Justice or Justices by the person who made the statement.(3) A written statement that is inadmissible as evidence under this section by virtue of any provision of this Subdivision may nevertheless be admitted as evidence in accordance with any rule or law of evidence, as if this Subdivision were not in force.s 48A: Ins 1983 No 169, Sch 1 (3).
48B Copies of statements to be given etc
(1) A written statement is not admissible as evidence under section 48A in any committal proceedings if:(a) the informant has not served, or caused to be served, before the expiry of such period as the Justice or Justices may direct, on the defendant:(i) a copy of the statement, together (where relevant) with a copy of the translation of the statement referred to in section 48C or of so much of the statement as is not in the English language, and(ii) a copy of the proposed exhibits (if any) identified in the statement or, in the case of a proposed exhibit which it is impossible or impracticable to copy, a notice specifying a time and place at which the proposed exhibit may reasonably be inspected,(b) where a notice referred to in paragraph (a) (ii) has been served on the defendant, the defendant has not been afforded a reasonable opportunity to inspect each proposed exhibit referred to in the notice,(c) the age of the person who made the statement is not specified in the statement, or(d) such other requirements (whether of the same or of a different kind) as may be prescribed by the regulations have not been complied with.(2) In any committal proceedings, the Justice or Justices may and, on the application of or with the consent of the defendant, shall dispense with all or any of the requirements of subsection (1), on such terms and conditions as appear just and reasonable, and accordingly those requirements shall, to the necessary extent, not be applicable in relation to those proceedings.(3) Subsection (2) does not apply to such of the requirements referred to in subsection (1) (d) as are declared by the regulations to be requirements that may not be dispensed with under subsection (2).(4) In any committal proceedings, it shall, for the purposes of this Subdivision, be presumed, in the absence of evidence to the contrary, that the age specified in a statement purporting or appearing to be the age of the person who made the statement is in fact the age of that person.s 48B: Ins 1983 No 169, Sch 1 (3). Am 1984 No 153, Sch 8 (1); 1989 No 132, Sch 1.
48BA Addresses and telephone numbers not to be disclosed
(1) A written statement served on a defendant under section 48B in committal proceedings must not disclose the address or telephone number of the person who made the statement or of any other living person, unless:(a) the address or telephone number is a materially relevant part of the evidence, or(b) the Justice or Justices make an order permitting the disclosure in the statement.(2) An application for such an order may be made by the informant or the defendant.(3) The Justice or Justices shall not make such an order unless satisfied that disclosure is not likely to present a reasonably ascertainable risk to the welfare or protection of any person or that the interests of justice (including the defendant’s right to prepare properly for the hearing or for trial) outweigh any such risk.(4) An address or telephone number that must not be disclosed may, without reference to the person who made the written statement, be deleted from the statement, or rendered illegible, before the statement is served on the defendant.(5) A written statement is not inadmissible as evidence on the ground that it either does or does not disclose any such address or telephone number as is mentioned in this section.(6) This section does not prevent the disclosure of an address in a written statement if the statement does not identify it as a particular person’s address.(7) In this section:address includes a private, business or official address.telephone number includes a private, business or official telephone number.s 48BA: Ins 1988 No 98, Sch 1 (1).
48C Requirements as to statements
(1) A written statement is not admissible as evidence under section 48A in any committal proceedings if:(a) the statement is not endorsed in whichever of the following forms is appropriate in the particular case:(i) except in a case to which subparagraph (ii) applies:This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in Court as a witness.The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true.(ii) in a case where the person who made the statement is a child under 12 years of age:I have not told any lies in this statement.(b) (Repealed)(c) the statement or such an endorsement is not written in a language of which the person who made the statement has a reasonable understanding,(d) where the statement is written, wholly or in part, in a language other than English, there is not annexed to it a document purporting to contain a translation of the statement, or so much of the statement as is not in the English language, into the English language,(e) the statement is not signed by the person who made the statement, or(f) the statement is not signed by another person as a witness, who attested the signing of the statement (by the person who made it or by the person who signed it under subsection (3) on behalf of the person who made it).(2) In any committal proceedings, it shall, for the purposes of this Subdivision, be presumed, in the absence of evidence to the contrary, that:(a) the language in which a statement or endorsement is written, as referred to in subsection (1) (c), is a language of which the person who made the statement has a reasonable understanding, or(b) a signature on a statement purporting or appearing to be that of:(i) the person who made the statement, as referred to in subsection (1) (e), is in fact the signature of that person, or(ii) a person who signed the statement as a witness, as referred to in subsection (1) (f), is in fact the signature of a person who attested the signing of the statement (by the person who made it or by the person who signed it under subsection (3) on behalf of the person who made it), or(c) a statement purporting or appearing to have been signed in accordance with subsection (3) was in fact signed in accordance with that subsection and the signature on the statement purporting or appearing to be that of the person who signed under that subsection is in fact the signature of that person.(3) If a person who makes a statement is unable to sign it, the statement is for the purposes of subsection (1) to be considered to have been signed by the person if it is signed by another person who:(a) signs it with the consent of and in the presence of the person who made the statement, and(b) signs an endorsement on the statement to the effect that the person signed the statement on behalf of, with the consent of and in the presence of the person who made the statement.(4) A written statement is admissible as evidence under section 48A in a committal proceeding even if it is in the form of questions and answers.s 48C: Ins 1983 No 169, Sch 1 (3). Am 1988 No 98, Sch 1 (2); 1990 No 94, Sch 1.
48CA Special requirements as to transcripts of recordings of interviews with children
(1) A written statement that is in the form of a transcript of a recording of an interview with a child is not admissible as evidence under section 48A in any committal proceedings unless:(a) it has been certified by an investigating official as an accurate transcript of the recording to which the statement relates, and(b) the defendant has been given, in accordance with the regulations under section 12 (2) of the Evidence (Children) Act 1997, a reasonable opportunity to listen to and, in the case of a video recording, view the recording.(2) Section 48C (1) (a), (c), (e) and (f) do not apply to any such written statement.(3) In any committal proceedings, it is, for the purposes of this Subdivision, to be presumed, in the absence of evidence to the contrary, that a signature on such a written statement purporting to or appearing to be that of an investigating official is in fact the signature of that person.(4) Nothing in this Subdivision requires the informant to serve on the defendant a copy of a recording of an interview with a child (other than a transcript of the recording).(5) In this section:investigating official has the same meaning as in the Evidence (Children) Act 1997.recording of an interview with a child means a recording made by an investigating official of an interview with a child, during which the child was questioned by the investigating official in connection with the investigation of the commission or possible commission of an offence (as referred to in the Evidence (Children) Act 1997).Note—The Evidence (Children) Act 1997 allows children to give evidence of a previous representation in the form of a recording made by an investigating official of an interview with the child. Section 12 (2) of that Act provides that such evidence is not to be admitted unless the accused person and his or her lawyer have been given a reasonable opportunity to listen to or view the recording.s 48CA: Ins 1999 No 39, Sch 4 [2].
48D Information as to rights of defendant
(1) A written statement is not admissible as evidence under section 48A in any committal proceedings if the informant has not served, or caused to be served, before the expiry of such period as the Justice or Justices may direct, on the defendant a notice in or to the effect of the prescribed form explaining the effect of this Subdivision and the rights of the defendant in relation thereto.(2) Where in any committal proceedings the defendant is not represented by counsel or an attorney, a written statement is not admissible as evidence under section 48A in those proceedings if the Justice or Justices:(a) has or have not addressed the defendant in or to the effect of the prescribed form of words, or(b) is or are not satisfied that the defendant understands the defendant’s rights under this Subdivision.s 48D: Ins 1983 No 169, Sch 1 (3).
48E Direction to witness to attend
(1) For the purposes of committal proceedings, the Justice or Justices may give a direction requiring the attendance at the proceedings of a person who has made a written statement for the purposes of this Subdivision. The direction may be given on the application of the defendant or informant or on the motion of the Justice or Justices.(1A) The Justice or Justices must give the direction if an application is made by the defendant or the informant and the other party consents to the direction being given.(2) In any other circumstance, the Justice or Justices may give the direction only if:(a) in the case of a witness in proceedings that relate to an offence involving violence who is the alleged victim of the offence—the Justice or Justices are of the opinion that there are special reasons why, in the interests of justice, the witness should attend to give oral evidence, or(b) in any other case—the Justice or Justices are of the opinion that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence.(3) The Justice or Justices must not give the direction if the written statement has already been admitted as evidence.(4) A defendant may apply for a direction under subsection (1) only if the defendant has served on the informant, within such period as the Justice or Justices may direct, a notice that the defendant wishes the person who made the statement to attend at the proceedings.(5) If a direction has been given under subsection (1), the statement is not admissible as evidence under section 48A in the proceedings, unless the direction has been withdrawn.(6) A direction given under subsection (1) on the application of a defendant or informant may be withdrawn:(a) only on the application, or with the consent, of the applicant, or(b) if the applicant fails to appear, on the application of the other party.(7) If the Justice refuses or Justices refuse to give a direction under subsection (1), the Justice or Justices must give reasons for doing so.(8) The regulations may make provision for or with respect to the determination of special reasons under subsection (2) (a) and the determination of substantial reasons under subsection (2) (b).(9) In this section:offence involving violence means any of the following offences:(a) a prescribed sexual offence within the meaning of the Criminal Procedure Act 1986,(b) an offence under sections 27–30 of the Crimes Act 1900 (attempts to murder),(c) an offence under section 33 of the Crimes Act 1900 (wounding etc with intent to do grievous bodily harm or resist arrest),(d) an offence under section 35 (b) of the Crimes Act 1900 (infliction of grievous bodily harm),(e) an offence under sections 86–91 of the Crimes Act 1900 (abduction or kidnapping),(f) an offence under sections 94–98 of the Crimes Act 1900 (robbery),(g) any other offence that involves an act of actual or threatened violence that is prescribed by the regulations for the purposes of this section.s 48E: Ins 1983 No 169, Sch 1 (3). Am 1987 No 235, Sch 1 (2); 1988 No 20, Sch 8 (1). Subst 1996 No 123, Sch 1 [6]. Am 1998 No 53, Sch 6 [1]; 1999 No 94, Sch 4.71 [4]; 2001 No 56, Sch 2.25; 2001 No 85, Sch 5 [3]–[5].
48EA (Repealed)
s 48EA: Ins 1987 No 235, Sch 1 (3). Am 1995 No 22, Sch 2.9 [1]. Rep 1996 No 123, Sch 1 [7].
48F Rejection of whole or part of statement
(1) Where in any committal proceedings it appears to the Justice or Justices that the whole or any part of a written statement tendered as evidence under this Subdivision is inadmissible, the Justice or Justices shall reject the statement or that part, as the case may be, as evidence. However, the Justice or Justices must not exclude evidence on any of the grounds set out in Part 3.11 (Discretions to exclude evidence) of the Evidence Act 1995.(2) Where a part of a written statement is rejected under subsection (1), the Justice or Justices shall, by one of the means referred to in section 36 (4), make a record identifying the part that has been rejected and indicating that it has been rejected.(3) The regulations may, for the purposes of subsection (2), prescribe the manner of identifying a part of a statement that has been rejected and of indicating that it has been rejected.s 48F: Ins 1983 No 169, Sch 1 (3). Am 1996 No 123, Sch 1 [8].
48G Adjournments
Without limiting the powers of the Justice or Justices to adjourn committal proceedings, the Justice or Justices shall grant such adjournments as appear to be just and reasonable as a consequence of any of the provisions of this Subdivision.s 48G: Ins 1983 No 169, Sch 1 (3).
48GA Time and manner requirements for service of statements and notices
(1) The Justice or Justices shall, when giving a direction under section 48B or 48D for the service of a written statement or notice on the defendant, direct that the statement or notice be served at least 28 days before the committal hearing unless the defendant consents to a shorter period or the circumstances of the case otherwise require.(2) The Justice or Justices shall, when giving a direction under section 48E (4) for the service of a notice on the informant, direct that the notice be served at least 14 days before the committal hearing unless the informant consents to a shorter period or the circumstances of the case otherwise require.(3) A written statement or other notice under this Subdivision shall be served in such manner as may be prescribed by the regulations or (subject to the regulations) in such manner as may be determined by the Justice or Justices.(4) In this section:committal hearing means the time set by the Justice or Justices for taking the evidence for the prosecution in committal proceedings.s 48GA: Ins 1987 No 235, Sch 1 (4). Am 1996 No 123, Sch 1 [9].
48H False statements
(1) Where a written statement made by any person is tendered in evidence for the purposes of this Subdivision, the person is guilty of an offence if the statement contains any matter:(a) that, at the time the statement was made, the person knew to be false, or did not believe to be true, in any material respect, and(b) that was inserted or caused to be inserted by the person in the statement.(2) Division 3 of Part 2 of the Criminal Procedure Act 1986 (which relates to the summary disposal of certain indictable offences unless an election is made to proceed on indictment) applies to and in respect of an offence under this section.(3) A person guilty of an offence under this section is liable:(a) where the offence is dealt with summarily—to a penalty not exceeding 20 penalty units or to imprisonment for a term not exceeding 12 months, or both, or(b) where the offence is dealt with on indictment—to a penalty not exceeding 50 penalty units or to imprisonment for a term not exceeding 5 years, or both.(4) (Repealed)s 48H: Ins 1983 No 169, Sch 1 (3). Am GG No 73 of 2.5.1986, p 1928; 1992 No 112, Sch 1; 1995 No 22, Sch 2.9 [2] [3]; 1999 No 94, Sch 4.35 [9].
48I Death of person making statement
(1) A written statement that, but for this subsection, would be admissible as evidence under section 48A is not so admissible if, on evidence produced during the committal proceedings, the Justice or Justices is or are satisfied that the person who made the statement is dead.(2) Where, after a written statement has been admitted as evidence under section 48A, it transpires that the person who made the statement died before its admission, the statement shall be deemed not to have been so admitted.s 48I: Ins 1983 No 169, Sch 1 (3).
Subdivision 8
49–51 (Repealed)
pt 4, div 1, sdiv 8: Rep 1998 No 107, Sch 2 [4].
s 49: Am 1954 No 25, sec 18 (1) (a); 1971 No 70, sec 3 (e); 1973 No 11, sec 4 (g); 1978 No 162, Sch 1 (15); 1996 No 99, Sch 2.9 [2]. Rep 1998 No 107, Sch 2 [4].
s 49A: Ins 1971 No 70, sec 3 (f). Am 1973 No 11, sec 4 (h); 1978 No 162, Sch 1 (16). Rep 1998 No 107, Sch 2 [4].
s 50: Am 1978 No 162, Sch 1 (17); 1986 No 212, Sch 1; 1996 No 99, Sch 2.9 [3]. Rep 1998 No 107, Sch 2 [4].
s 51: Rep 1970 No 85, sec 4 (1) (a).
Subdivision 9 Plea of guilty in committal proceedings
51A Effect of plea of guilty in committal proceedings
s 51A, hdg: Ins 1955 No 16, sec 7 (1) (a). Rep 1983 No 32, Sch 2 (2).(1) A person charged before one, or more than one, Justice with an indictable offence may, at any stage of the proceedings, plead guilty to the charge and thereupon the following provisions of this section have effect:(a) The Justice or Justices may accept or reject the plea.The rejection of a plea of guilty at any stage of the proceedings does not prevent the accused from pleading guilty under this section at a later stage of the proceedings and the Justice or Justices have power to accept or reject the plea at that later stage,(b) Where the Justice or Justices reject the plea the proceedings before the Justice or Justices shall be continued as if the plea had not been made,(c) Where the Justice or Justices accept the plea, the Justice or Justices shall thereupon commit the accused to such sittings of the Supreme Court, or the District Court as the Justice or Justices may direct to be dealt with as hereinafter in this section provided,(d) The Judge of the Supreme Court or of the District Court, as the case may be, before whom the accused is brought in accordance with this section:(i) shall, if it appears to him or her from the information or evidence given to or before him or her that the facts in respect of which the accused was charged before the Justice or Justices do not support the charge to which the accused pleaded guilty or if counsel for the Crown requests that an order be made under this subparagraph, and may, if for any other reason the Judge sees fit so to do, order that the proceedings before the Justice or Justices at which the accused pleaded guilty be continued at a time and place to be specified in the order,(ii) unless an order is made under subparagraph (i), has the same powers of sentencing or otherwise dealing with the accused, and of finally disposing of the charge and of all incidental matters, as he or she would have had if the accused on arraignment at any sittings of the Court had pleaded guilty to the offence charged on an indictment filed by the Attorney-General or the Director of Public Prosecutions,(e) Notwithstanding paragraph (d), where the accused is, in accordance with this section, brought before a Judge and changes to not guilty the plea to the charge on which the accused was committed under paragraph (c):(i) the Judge shall, unless the Judge is of the opinion that an order should be made under paragraph (d) (i), direct that the accused be put on trial for the offence charged,(ii) upon the giving of the direction, the committal under paragraph (c) shall be deemed to be a committal of the accused for trial for that offence, and(iii) the Judge may make such orders, may do such other things that the Justice or Justices could have done on a committal for trial, and may give such directions with respect to matters preliminary to the trial, as to the Judge seems to be just,(f) Paragraph (e) does not apply in relation to an offence punishable with imprisonment for life.(2) All proceedings relating to a committal for trial apply, as nearly as may be, to a committal under paragraph (c) of subsection (1).(3) Where an order is made by a Judge under subparagraph (i) of paragraph (d) of subsection (1) that proceedings before a Justice or Justices at which an accused pleaded guilty be continued at a time and place specified in the order, those proceedings shall be continued in all respects as if the accused had not pleaded guilty and as if those proceedings had been adjourned by the Justice or Justices to the time and place so specified.Upon the making of any such order the Judge may exercise any power that the Justice or Justices might have exercised under section 34 if the order had been an order made by the Justice or Justices adjourning the proceedings to the time and place so specified; and the provisions of the said section 34 apply to and in respect of the accused.(4) Where a person has, in respect of any charge to which the person has pleaded guilty under subsection (1), been committed under paragraph (c) of that subsection, the Attorney-General or the Director of Public Prosecutions may in his or her discretion direct in writing that no further proceedings under this section be taken against the person so committed in respect of that charge.Upon the giving of such direction:(a) no further proceedings shall be taken under this section against the person so committed in respect of that charge, and(b) the provisions of section 127 of the Criminal Procedure Act 1986 apply to and in respect of the person concerned as if the person were under committal for trial and the Attorney-General or the Director of Public Prosecutions had declined to file any information against the person.(5) A committal under paragraph (c) of subsection (1) shall, for all purposes relating to the venue or change of venue of proceedings consequent on that committal, be deemed to be a committal for trial.(6) This section does not apply if the indictable offence with which the person is charged:(a) is being dealt with summarily in accordance with Division 3 of Part 2 of the Criminal Procedure Act 1986, or(a1) is being dealt with in accordance with Part 2 of the Drug Court Act 1998, or(b) may otherwise be dealt with summarily without the consent of the accused and is being so dealt with.(7) A person sentenced or otherwise dealt with under subparagraph (ii) of paragraph (d) of subsection (1) for an offence to which he or she pleaded guilty pursuant to that subsection shall, for the purposes of any Act passed either before or after the commencement of section 2 of the Justices (Amendment) Act 1958, be deemed to be convicted on indictment of the offence.s 51A: Ins 1955 No 16, sec 7 (1) (a). Am 1958 No 25, sec 2 (1); 1974 No 50, sec 14 (a); 1974 No 94, Sch 1; 1978 No 162, Sch 1 (18); 1979 No 178, Sch 2 (3); 1983 No 169, Sch 1 (4); 1985 No 1, Sch 1 (3); 1986 No 212, Sch 1; 1988 No 99, Sch 2 (3); 1995 No 22, Sch 2.9 [4]; 1996 No 123, Sch 1 [10] [11]; 1998 No 150, Sch 1.5 [1]; 1999 No 94, Sch 4.35 [9] [10], 4.125 [2].
Subdivision 10 Procedure where indictable offences dealt with summarily
pt 4, div 1, sdiv 10: Ins 1985 No 207, Sch 3 (3).
51B Application of Division 2 to indictable offences
(1) This section applies to indictable offences disposed of summarily by a Magistrate.(2) Without affecting the generality of section 4, sections 80AA–86 apply and shall be deemed to have always applied to and in respect of indictable offences to which this section applies as if references in those sections to informations laid under section 52 included references to informations laid under section 21.(3) Subdivision 6A of Division 2 applies to an offence to which this section applies that is subject to Division 3 of Part 2 of the Criminal Procedure Act 1986, as set out in section 66H.s 51B: Ins 1985 No 207, Sch 3 (3). Am 1986 No 16, Sch 23; 1995 No 22, Sch 2.9 [5]; 1996 No 99, Sch 2.9 [4]; 1997 No 96, Sch 1 [1]; 1999 No 94, Sch 4.35 [9] [11].
Division 2 Offences punishable on summary conviction and complaints
pt 4, div 2, hdgs to sdivs 1–10: Ins 1983 No 32, Sch 2 (4) (8) (9).
Subdivision 1 Informations and complaints
52 When information may be laid
An information may be laid before a Justice in any case where any person has committed or is suspected to have committed an offence or act in New South Wales for which the person is liable upon summary conviction before a Justice or Justices to be punished by fine, imprisonment, or otherwise.
52A Information taken to be laid
(1) Without limiting the operation of this Subdivision and Subdivision 2, an information is taken to have been laid before a Justice, and a summons issued and served, in respect of a person if:(a) the person has been charged with an offence and served with a copy of a charge sheet containing details of the offence, and(b) the person has been subsequently released on bail, and(c) a copy of the charge sheet or other document setting out the details of the offence, and a bail undertaking under the Bail Act 1978, have been lodged in respect of the person with the clerk of a Local Court or given to a Magistrate.(2) For the purposes of this Act:(a) the copy of the charge sheet or other document setting out the details of the offence lodged with the clerk of a Local Court or given to a Magistrate is taken to be an information that is not substantiated by the oath of the informant or witness, and(b) the bail undertaking is taken to be a summons.s 52A: Ins 1997 No 107, Sch 1 [2].
53 When complaint may be made
A complaint may be made to a Justice in any case where a Justice or Justices has or have authority by law to make an order for the payment of money, or otherwise.
54 Who may lay or make information or complaint
An information or complaint may be laid or made by the informant or complainant in person, or by his or her counsel, attorney, or other person authorised in that behalf.
55 How information or complaint may be laid or made
An information or complaint may be laid or made without oath, unless it is otherwise required by the provisions of any Act. A complaint need not be in writing unless it is required to be so by the Act upon which it is founded.
56 Time within which information or complaints may be laid or made
(1) An information or complaint may, unless some other time is specially limited by the Act dealing with the matter, be laid or made at any time within six months from the time when the matter of the information or complaint arose.(2) Where an information or complaint has been laid or made in writing without oath, any person able so to do may by his or her oath substantiate the matter thereof, whether or not he or she is the informant or complainant and whether or not that matter arose more than six months before being so substantiated.(3) For the purposes of subsection (2), the matter of the information or complaint may be substantiated on oath before the Justice before whom the information or complaint was laid or made, or before some other Justice.s 56: Am 1968 No 3, sec 11 (a).
57 Informations or complaints to be for one matter only
Every information shall be for one offence only, and not for two or more offences. Every such complaint shall be for one matter only and not for two or more matters.
58 How partners etc property of partners etc to be described in information or complaint
(1) Whenever it is necessary in any information or complaint or in any proceedings thereon to state the ownership of any property belonging to, or in the possession of partners, joint tenants, parceners or tenants in common, it shall be sufficient to name one of such persons, and to allege the property to belong to the person so named, and “another” or “others,” as the case may be.(2) Whenever it is necessary in any information or complaint or in any proceedings thereon, to mention for any purpose any partners, joint tenants, parceners or tenants in common, it shall be sufficient to describe them by naming one of such persons, and referring to the rest as “another” or “others,” as the case may be.
Subdivision 2 Issue of warrants and summonses
59 Issue of warrant in first instance
Whenever an information is laid before a Justice, against any person, and the matter thereof substantiated by the oath of the informant or a witness, such Justice may issue his or her warrant in the first instance for the apprehension of such person.
60 Issue of summons
(1) Whenever an information or complaint is laid or made before a Justice, against any person as hereinbefore provided:(a) where the information or complaint is not substantiated as provided by section 56, the Justice before whom the information or complaint was laid or made, ormay issue his or her summons for the appearance of such person:(b) where the information or complaint is so substantiated, the Justice before whom it was so substantiated,Provided that nothing herein contained shall oblige a Justice to issue his or her summons in any case where a complaint is by law to be made ex parte.(2) Where the Justice before whom an information or complaint is laid or made considers that the matter of the information or complaint would be better resolved by mediation than by proceedings under this Act, the Justice may, with the consent of the informant or complainant, instead of issuing a summons under subsection (1), order the informant or complainant to submit the matter of the information or complaint to mediation under the Community Justice Centres Act 1983.(3) Where an order is made under subsection (2) in relation to the matter of an information or complaint but:(a) the matter of the information or complaint may not, by the operation of section 22 (1) of the Community Justice Centres Act 1983, be the subject of a mediation session under that Act,(b) the defendant refuses to attend at, or participate in, a mediation session under that Act or either party withdraws from such a session,(c) the Director of a Community Justice Centre declines under section 24 (1) of that Act to consent to the acceptance of the matter of the information or complaint for mediation, ora Justice may issue a summons for the appearance of the defendant.(d) a mediation session attended by the informant or complainant and the defendant is terminated under section 24 (2) of that Act,s 60: Am 1968 No 3, sec 11 (b); 1983 No 128, Sch 1 (1).
61 (Repealed)
s 61: Am 1940 No 6, sec 2 (1) (h); 1970 No 52, Second Sch. Rep 1998 No 172, Sch 5 [7].
Subdivision 3 Form and service of summons
62 Form of summons
Every summons for the appearance of any person shall:(a) be under the hand and seal of the Justice issuing it, and(b) be directed to such person, and(c) state shortly the matter of the information or complaint, and(d) require such person to appear at a certain time and place before such Justice as shall then be there to answer to the information or complaint, and be dealt with according to law, and(e) set out, or be accompanied by, information about the right under section 75 to notify a plea in writing.s 62: Am 1997 No 107, Sch 1 [3]; 1998 No 49, Sch 16 [4]; 1998 No 172, Sch 5 [8].
63 Manner of service of summons
(1) Subject to this section every summons shall be served by a member of the police force or other person upon the person to whom it is directed by delivering it to him or her personally or, if the person cannot conveniently be met with, by leaving it with some person for him or her at his or her last or most usual place of abode.(2) Subject to this section a summons in respect of an information for an offence punishable summarily before a Justice or Justices laid by a member of the police force or a public officer may be served by posting it not less than twenty-eight days before the return day by prepaid letter post addressed to the person to whom it is directed:(a) where that person is a natural person, at his or her last known place of residence or business,(b) where that person is a body corporate, at a place where it trades or carries on business, or(c) in either case referred to in paragraphs (a) and (b):(i) where there is a prescribed address for the person, andat the prescribed address for that person.(ii) where there are no circumstances making it appear to a court that the prescribed address for that person is not the address referred to in paragraph (a) or, as the case may require, paragraph (b) in relation to that person,(2A) In subsection (2), public officer means a person acting in an official capacity:(a) as an officer or a temporary employee under the Public Service Act 1979,(b) as an officer or employee of a corporation that, for the purposes of any Act, is a statutory body representing the Crown,(c) as a councillor or employee of a council within the meaning of the Local Government Act 1993,(d) as an officer or employee of a rural lands protection board under the Rural Lands Protection Act 1998,(e) as an officer within the meaning of the Prevention of Cruelty to Animals Act 1979,(f) as an officer or employee of an area health service constituted under the Health Services Act 1997, or(g) as an officer of the Commonwealth.(3) Subject to subsection (4), service of a summons in the manner referred to in subsection (1) or (2) may be proved by the oath of the member of the police force or other person who served it, or by affidavit or otherwise.(4) Where a summons is posted as provided in this section:(a) the deposition or affidavit of service shall state the manner in which the deponent was informed of the address to which it was so posted and the time and place of posting, and(b) in the absence of any proof to the contrary, the summons shall be deemed to have been duly served on the person to whom it is directed at the time at which it would be delivered in the ordinary course of post.(5) The Justice or Justices at the hearing or adjourned hearing of an information in respect of which a summons has been issued may, notwithstanding service of the summons in the manner provided by subsection (2), order that a further summons in respect of the same offence be served in the manner provided by subsection (1), and may adjourn or further adjourn the hearing to enable that summons to be served in accordance with that order.(6) In this section prescribed address means:(a) in relation to a person alleged to have committed an offence arising out of the driving or use of a motor vehicle or trailer, or an attempt to do so (not being an offence referred to in paragraph (b))—the address appearing as the address of that person on a driver licence within the meaning of the Road Transport (Driver Licensing) Act 1998, or any law of a State or of a Territory of the Commonwealth that corresponds to that Act, produced by that person at or about the time of the alleged offence or upon the investigation thereof,(b) in relation to a person alleged to have committed an offence as owner of a motor vehicle or trailer—the address appearing on or from the records kept by the Roads and Traffic Authority under the Road Transport (Vehicle Registration) Act 1997 in respect of the registration of motor vehicles or trailers, or on or from records of a like nature kept by any authority under any law of a State or of a Territory of the Commonwealth that corresponds to that Act, as the last known address of the person in whose name the motor vehicle or trailer was registered under that Act or law on the date of the alleged offence, or(c) in relation to a person alleged to have committed any other offence against an Act, rule, regulation, ordinance, by-law or order—the address appearing as the address of that person in any licence or registration for the time being in force pertaining to that person or to any property of which that person appears to be the owner or occupier, being a licence or registration held or effected by that person under the Act against which, or under the Act authorising the making of the rule, regulation, ordinance, by-law or order against which, the offence is alleged to have been committed.(7) This section shall be construed as operating in addition to, and not as derogating from, the operation of a provision of any other Act relating to the service of summonses, and any such provision shall be construed as operating in addition to, and not as derogating from, the operation of this section.s 63: Am 1967 No 28, sec 2. Subst 1970 No 85, sec 2. Am 1971 No 70, sec 3 (g); 1974 No 94, sec 4 (a); 1979 No 178, Sch 2 (4); 1984 No 153, Sch 8 (2); 1987 No 161, sec 2; 1988 No 114, Sch 4; 1993 No 32, Sch 2; 1997 No 115, Sch 4.8; 1997 No 119, Sch 2.11 [1]; 1998 No 99, Sch 1.6; 1998 No 143, Sch 6.12; 1998 No 172, Sch 5 [9] [10].
Subdivision 4 Form and execution of warrant
64 Form of warrant
(1) Every warrant for the apprehension of any person shall:(a) be under the hand and seal of the Justice issuing it, and(b) be directed to a police constable or other person by name, or generally to the senior officer of police of the district or place where it is to be executed, or to such officer of police and to all other police constables in New South Wales, or generally to all police constables in New South Wales, and(c) name or otherwise describe the person whose appearance is required, as the case may be, and(d) state shortly the matter of the information or complaint, and(e) order the police constable or person to whom it is directed to apprehend the person whose appearance is required, and cause the person to be brought before such Justice, or any other one or more than one Justice, as the Act dealing with the matter may require, to answer to the information or complaint, and may be dealt with according to law.(2)(i) It shall not be necessary to make any such warrant for the apprehension of a defendant returnable at any particular time, but every such warrant shall continue in force till it is executed.(ii) Every other such warrant shall be returnable at a time and place to be stated therein.(3) Every such warrant may be executed by apprehending the person against whom it is directed at any place in New South Wales.(4) Any such warrant may be issued on a Sunday as well as on any other day.s 64: Am 1985 No 38, Sch 1; 1998 No 172, Sch 5 [11].
Subdivision 5 Defects in form and variances
65 No objection for defect or variance
(1) No objection shall be taken or allowed to any information, complaint, summons, or warrant in respect of:(a) any alleged defect therein in substance or in form, or(b) any variance between information, complaint, summons, or warrant and the evidence adduced in support of the information or complaint at the hearing.(2) No variance between any information and the evidence adduced in support thereof at the hearing in respect of the time or place at which the offence or act is alleged to have been committed shall be deemed material if it is proved that the information was in fact laid within the time limited by law in that behalf or that the offence or act was committed in New South Wales, as the case may be.(3) Where any such defect or variance appears to the Justice or Justices present and acting at the hearing to be such that the defendant has been thereby deceived or misled such Justice or Justices may upon such terms as the Justice or Justices may think fit adjourn the hearing of the case to some future day.
Subdivision 6 Warrant on default in appearance to summons
66 On non-appearance to summons, warrants may be issued
(1) Whenever any person for whose appearance a summons has been issued does not appear at the time and place appointed thereby,(a) in the case of offences punishable on summary conviction under the Crimes Act 1900, any two Justices,may, upon proof of the due service of the summons upon such person at a reasonable time before the time appointed for his or her appearance and(b) in all other cases, any Justice,(i) where such person is the defendant:
upon the matter of the information or complaint being substantiated upon oath,issue his or her warrant for the apprehension of such person.(ii) (Repealed)(2) The Justice or Justices before whom a person is brought after having been apprehended under a warrant referred to in subsection (1) or 80AA:(a) subject to the Bail Act 1978, must order that a warrant be issued for the committal of the person to a correctional centre or other place of security, and(b) must order the person to be brought before the Justice or Justices at such time and place as is specified in the order, and(c) must give due notice to the informant or complainant of the time and place so specified.(3) A warrant under this section may be issued by any Justice.(4) (Repealed)s 66: Am 1909 No 24, sec 11; 1978 No 162, Sch 1 (19); 1985 No 207, Sch 3 (4); 1998 No 107, Sch 2 [5]; 1998 No 172, Sch 5 [12]–[14].
Subdivision 6A Service of briefs of evidence
pt 4, div 2, sdiv 6A: Ins 1997 No 96, Sch 1 [2].
66A Definitions
(1) In this Subdivision:brief of evidence, in relation to a prescribed summary offence, means documents regarding the evidence that the prosecution intends to adduce in order to prove the commission of the offence and includes:(a) written statements taken from the persons the prosecution intends to call to give evidence in proceedings for the offence, and(b) any document, or other thing, identified in such a written statement as a proposed exhibit.penalty notice means:(a) a penalty notice within the meaning of Part 4B, or(b) after the commencement of Part 3 of the Fines Act 1996—a penalty notice within the meaning of that Act.prescribed summary offence means a summary offence other than:(a) an offence for which a penalty notice may be issued, or(b) an offence prescribed by the regulations for the purposes of this paragraph.means:(a) the Director of Public Prosecutions, or(b) a police officer, orwho is responsible for the conduct of a prosecution.(c) a person prescribed by the regulations for the purposes of this definition,(2) In this Subdivision, a reference to the defendant includes a reference to the barrister or solicitor of the defendant.ss 66A–66C: Ins 1997 No 96, Sch 1 [2].
66B Brief of evidence to be served on defendant unless otherwise ordered
(1) If a defendant pleads not guilty to a prescribed summary offence being prosecuted by a prosecuting authority, the prosecuting authority must, unless the Justice or Justices otherwise order in accordance with section 66E, serve or cause to be served on the defendant a copy of the brief of evidence relating to the offence.(2) The copy of the brief of evidence is to be served at least 14 days before the hearing of the evidence for the prosecution unless the defendant consents to a shorter period or, in the opinion of the Justice or Justices, the circumstances of the case otherwise require.ss 66A–66C: Ins 1997 No 96, Sch 1 [2].
66C Exhibits
(1) Despite section 66B, the prosecuting authority is not required to include a copy of a proposed exhibit identified in the brief of evidence if it is impossible or impractical to copy the exhibit.(2) However, in that case the prosecuting authority is:(a) to serve on the defendant a notice specifying a reasonable time and place at which the proposed exhibit may be inspected, and(b) to allow the defendant a reasonable opportunity to inspect each proposed exhibit referred to in the notice.ss 66A–66C: Ins 1997 No 96, Sch 1 [2].
66CA Recordings of interviews with children
(1) If the prosecution intends to call a child to give evidence in proceedings for a prescribed summary offence, the brief of evidence relating to the offence may include a transcript of a recording made by an investigating official of an interview with the child, during which the child was questioned by the investigating official in connection with the investigation of the commission or possible commission of the offence (as referred to in the Evidence (Children) Act 1997).(2) A copy of the transcript of the recording must be certified by an investigating official as an accurate transcript of the recording and served on the defendant in accordance with section 66B.(3) A brief of evidence that includes a transcript of a recording of an interview with a child is not required to also include a written statement from the child concerned.(4) The transcript of the recording is taken, for the purposes of this Subdivision, to be a written statement taken from the child. Accordingly, any document or other thing identified in the transcript as a proposed exhibit forms part of the brief of evidence.(5) Nothing in this Subdivision requires the prosecuting authority to serve on the defendant a copy of the actual recording made by an investigating official of an interview with the child.(6) This section does not affect section 12 (2) of the Evidence (Children) Act 1997.(7) In this section:investigating official has the same meaning as in the Evidence (Children) Act 1997.Note—The Evidence (Children) Act 1997 allows children to give evidence of a previous representation in the form of a recording made by an investigating official of an interview with the child. Section 12 (2) of that Act provides that such evidence is not to be admitted unless the accused person and his or her lawyer have been given a reasonable opportunity to listen to or view the recording.s 66CA: Ins 1999 No 39, Sch 4 [3].
66D Form of copy of brief of evidence
The copy of the brief of evidence is to comply with any requirement applicable to it prescribed by the regulations made for the purposes of this Subdivision.ss 66D–66G: Ins 1997 No 96, Sch 1 [2].
66E Discretion to order that copy of brief of evidence need not be served
(1) The Justice or Justices may order that all or part of the copy of the brief of evidence need not be served if the Justice or Justices are satisfied:(a) that there are compelling reasons for not requiring service, or(b) that it could not reasonably be served on the defendant.(2) The Justice or Justices may make an order under this section on their own initiative or on the application of any party.(3) An order may be made subject to such conditions (if any) as the Justice or Justices think fit.ss 66D–66G: Ins 1997 No 96, Sch 1 [2].
66F Evidence not to be admitted
(1) The Justice or Justices are to refuse to admit evidence sought to be adduced by the prosecuting authority in respect of the prescribed summary offence if, in relation to that evidence, this Subdivision, or any regulations made for the purposes of this Subdivision, have not been complied with by the prosecuting authority.(2) The Justice or Justices may, and on the application of or with the consent of the defendant must, dispense with the requirements of subsection (1) on such terms and conditions as appear just and reasonable.(3) Subsection (2) does not apply to any requirement referred to in subsection (1) that is declared by the regulations to be a requirement that may not be dispensed with under subsection (2).ss 66D–66G: Ins 1997 No 96, Sch 1 [2].
66G Adjournments
Without limiting the power of a Justice or Justices to adjourn proceedings, the Justice or Justices are to grant such adjournments as appear to be just and reasonable if the copy of the brief of evidence is not served in accordance with this Subdivision, and may extend accordingly the time for hearing the matter.ss 66D–66G: Ins 1997 No 96, Sch 1 [2].
66H Indictable offences dealt with summarily
(1) This Subdivision, and any regulations made for the purposes of this Subdivision, apply in respect of an indictable offence that is being dealt with summarily under Division 3 of Part 2 of the Criminal Procedure Act 1986 or Part 3 of the Children (Criminal Proceedings) Act 1987. For that purpose, a reference in this Subdivision to a prescribed summary offence includes a reference to such an indictable offence.(2) The provisions of this Subdivision requiring the service of a copy of a brief of evidence relating to such an indictable offence are taken to be satisfied in respect of any evidence the prosecution intends to adduce in the summary proceedings if:(a) a copy of a brief of evidence has been served in accordance with section 25 of the Criminal Procedure Act 1986 in respect of that evidence, or(b) a copy of a written statement has been served, in connection with committal proceedings, in accordance with Subdivision 7A of Division 1 of Part 4 of this Act in respect of that evidence.s 66H: Ins 1997 No 96, Sch 1 [2]. Am 1999 No 40, Sch 3; 1999 No 94, Sch 4.35 [9] [12].
Subdivision 7 Proceedings on information or complaint
67 Place of hearing to be an open court
Subject to any Act or other law, the room or place in which a Justice or Justices sits or sit to hear and determine any information or a complaint shall be deemed to be an open and public court, to which all persons may have access so far as that room or place can conveniently contain them.s 67: Am 1982 No 165, Sch 4 (2).
68 When hearing may be adjourned, and how time and place of adjourned hearing appointed and notified
The Justice or Justices may adjourn the hearing of any information or complaint:(a) in any case, in the Justice’s or Justices’ discretion, whether before or during the hearing.Such adjournment shall be to a time and place to be appointed by such Justice or Justices who shall state the same in the presence of the defendant, party or parties.(b) in any case where the defendant has failed to appear in obedience to a summons or attendance notice and a warrant has been issued for his or her apprehension.Such adjournment shall be to a time and place to be appointed by the Justice or Justices before whom the defendant is brought when he or she is apprehended. Notice of the time and place so appointed shall be given by such Justice or Justices to the informant or complainant.(c) in any case where the informant or complainant has failed to appear by himself or herself or by his or her counsel or attorney at the time and place appointed in the summons or of which he or she has had notice as hereinbefore provided and the defendant has appeared or has been brought up on any warrant.Such adjournment:(i) shall be to a time and place to be appointed by such Justice or Justices who shall state the same in the presence of the defendant, party or parties, and(ii) may be upon such terms as to the Justice or Justices seem fit.(d) to enable the matter of the information or complaint to be the subject of a mediation session under the Community Justice Centres Act 1983.s 68: Am 1983 No 128, Sch 1 (2); 1985 No 207, Sch 2 (2).
69 How defendant to be dealt with during adjournment
(1) Subject to the Bail Act 1978, the Justice or Justices by whom a hearing is adjourned under section 65 or 68:(a) in the case of any defendant, whether or not an accused person, may order that a warrant be issued for the committal of the defendant to a correctional centre or other place of security, orfor the period of the adjournment.(b) in the case of a defendant who is not an accused person, may allow the defendant to be at large,(2) A warrant under this section may be issued by any Justice.(3) At any time during the period of adjournment, any Justice may order that a defendant who has been committed to a correctional centre or other place of security be brought before that or any other Justice or Justices.(4) The person having the custody of a defendant in respect of whom such an order is made must comply with the requirements of the order.(5) The Bail Act 1978 applies to the defendant (not being an accused person) in the same way as it applies to an accused person and, for that purpose, bail may be granted to the defendant with respect to the period of the adjournment.s 69: Am 1940 No 6, sec 2 (1) (i); 1957 No 61, sec 2 (1) (b); 1978 No 162, Sch 1 (20); 1999 No 94, Sch 4.35 [13]. Subst 1998 No 107, Sch 2 [6].
70 How evidence to be taken
(1) Every witness shall have the usual oath administered to him or her before he or she is examined.(2) The prosecutor or complainant may himself or herself or by his or her counsel or attorney, conduct his or her case, and may examine and cross-examine the witnesses giving evidence for or against him or her, and may, if the defendant gives any evidence or examines any witness as to any matter other than as to his or her general character, call and examine witnesses in reply.(3) The defendant may himself or herself, or by his or her counsel or attorney, make full answer and defence, and may give evidence himself or herself, and may examine and cross-examine the witnesses giving evidence for or against him or her respectively.(4) The deposition of every witness shall be recorded by means of writing, shorthand, stenotype machine, sound-recording apparatus or such other means as may be prescribed.(5) Where, for the purposes of subsection (4), the deposition of a witness is recorded by means of writing, it shall be read over either to or by the witness, as the Justice or Justices may direct, and be signed by the witness and by the Justice or Justices.s 70: Am 1940 No 6, sec 2 (1) (j); 1954 No 32, sec 2 (e); 1978 No 63, Sch 1 (4).
71, 72 (Repealed)
s 71: Rep 1998 No 172, Sch 5 [15].
s 72: Rep 1909 No 24, sec 12.
73 Person interested in conviction or order may obtain copies thereof and of the information, depositions etc
(1) Every person interested in any summary conviction or order made by any Justice or Justices shall, on showing sufficient cause to the clerk of the Justice or Justices, be entitled to demand and have copies of the information or of the complaint and of the depositions or evidence, and of such conviction or order.(2) Subject to this section, the copies shall be supplied by the clerk on payment of a fee calculated at the rate prescribed by the regulations.s 73: Am 1940 No 6, sec 2 (1) (k); 1954 No 32, sec 2 (f); 1987 No 48, Sch 12 (3).
74 Procedure where informant or complainant does not, but defendant does appear
If, upon the day and at the time and place appointed by the summons, or by the order of the Justice or Justices before whom the defendant was brought upon apprehension under a warrant, the informant or complainant does not appear in person or by his or her counsel or attorney, but the defendant attends voluntarily in obedience to such summons, or is brought up on the order aforesaid, and the informant or complainant has received notice of such order, the Justice or Justices shall dismiss the information or complaint unless for some reason the Justice or Justices think proper to adjourn the hearing as hereinbefore provided.
75 Written pleas
(1) A defendant who is issued a summons or an attendance notice may lodge with the clerk of a Local Court a notice in writing that the defendant will plead guilty or not guilty to the offence or offences the subject of the information concerned.(2) The notice is to be in the prescribed form and, in the case of a guilty plea, may be accompanied by additional written material containing matters in mitigation of the offence.(3) If a defendant lodges a notice with the clerk of the Local Court under this section not later than 5 days before the day appointed by the summons or attendance notice for the hearing of the matter (the first return date), the defendant is not required to attend the court on the first return date.(4) On the first return date of a matter in which a plea of not guilty has been notified in accordance with this section, the Magistrate or an authorised justice must appoint a day and a time for the matter to be heard. The clerk of the Local Court must notify the defendant in writing, at the defendant’s last known address, of the day and time appointed by the Magistrate or authorised justice.(5) On the first return date of a matter in which a plea of guilty has been notified under this section, the Magistrate may:(a) proceed to deal with the matter under sections 75A–75F, or(b) adjourn the matter to another day for mention or hearing if of the opinion that the plea of guilty should not be accepted or that the matter should not proceed without the defendant.(6) If a defendant fails to appear on the day and at the time appointed for a hearing under subsection (4) or (5), the Magistrate may proceed to deal with the matter under sections 75A–75F.(7) This section does not apply to a defendant who has been granted bail or who is in custody.(8) In this section:means a Justice employed in the Attorney General’s Department.s 75: Am 1985 No 207, Sch 2 (3). Subst 1997 No 107, Sch 1 [4].
75A Scheme for ex parte proceedings where defendant fails to attend
(1) Sections 75B–75F constitute a scheme for the determination of matters in the absence of a defendant where the defendant fails to appear on a day, and at the time or place, specified by a summons or attendance notice.(2) The provisions of this section and sections 75B–75F are supplemental to, and do not derogate from, the provisions of any Act that relate to proceedings that may be taken in respect of offences punishable summarily before a Justice or Justices.s 75A: Ins 1971 No 70, sec 3 (h). Am 1985 No 207, Sch 2 (4). Subst 1997 No 107, Sch 1 [4].
75B Procedure if defendant does not appear
(1) If a defendant who has been served with a summons or attendance notice does not appear on the day and at the time and place specified by the summons or attendance notice and has not notified a plea of not guilty under section 75, the Magistrate may proceed to hear and determine the matter in accordance with this section and sections 75C–75F.(2) If:(a) a penalty notice enforcement order is annulled under Division 5 of Part 3 of the Fines Act 1996 and the order (together with any annexure) is taken to be an information in relation to the alleged offence, and(b) the defendant has been given notice of the hearing of the matter of the information, andthe Magistrate may proceed to hear and determine the matter in accordance with this section and sections 75C–75F.(c) the defendant does not appear on the day and at the time and place specified by the information,(3) The Magistrate may not proceed to hear and determine a matter under this section unless satisfied that the defendant had reasonable notice of the date, time and place of the hearing.(4) If a defendant is charged with 2 or more offences for which the hearing or hearings have been listed on the same date, time and place, the Magistrate may proceed to hear and determine some or all of the matters together.(5) A reference in this section to a time and place includes, if the hearing of the matter has been adjourned, a reference to the time and place to which the hearing has been adjourned.s 75B: Ins 1973 No 11, sec 6 (a). Am 1974 No 94, sec 5; 1978 No 63, Sch 1 (5); 1979 No 178, Schs 1 (1), 2 (5); 1982 No 165, Sch 4 (3); 1984 No 153, Sch 8 (3); 1985 No 207, Sch 2 (5); 1987 No 178, Sch 1 (1); 1993 No 32, Sch 2; 1996 No 99, Sch 2.9 [5]–[7]. Subst 1997 No 107, Sch 1 [4].
75C Adjournment of proceedings where defendant fails to appear
(1) Instead of hearing and determining a matter without the defendant, the Magistrate may, if of the opinion that the matter should not proceed on the specified day or without the defendant, adjourn the matter to another day for mention or for hearing.(2) The Magistrate may, on adjourning the hearing, on proof of the due service of the summons or attendance notice, issue or make an order authorising the issue of a warrant for the apprehension of the defendant.(3) If a warrant is issued for the apprehension of the defendant, the Magistrate or authorised justice before whom the defendant is brought after apprehension may specify the date, time and place to which the proceedings are adjourned.(4) Section 69 applies to a person apprehended and brought before a Magistrate or authorised justice after proceedings are adjourned under this section.s 75C: Ins 1997 No 107, Sch 1 [4].
75D Material to be considered in ex parte proceedings
(1) A Magistrate who proceeds to hear and determine a matter without the defendant may determine the matter on the basis of the information without hearing the informant’s witnesses or any other additional evidence of the informant, if of the opinion that the matters set out in the information are sufficient to establish the offence.(2) Before determining the matter, the Magistrate must consider any written material:(a) given to the Magistrate by the informant, and(b) lodged by the defendant in accordance with section 75.(3) The Magistrate may require the informant to provide additional evidence if of the opinion that the matters set out in the information are not sufficient to establish the offence.(4) The additional evidence is not admissible unless:(a) it is in the form of written statements that comply with section 48C, and(b) a copy of any such statement has been given to the defendant a reasonable time before consideration of the additional evidence by the Magistrate.(5) The Magistrate must reject a written statement, or any part of a written statement, tendered in proceedings if the statement or part is inadmissible because of this section.(6) Despite subsection (4), the Magistrate may require evidence to be given orally if it is not practicable to comply with that subsection or if the Magistrate thinks it necessary in the particular case.s 75D: Ins 1997 No 107, Sch 1 [4].
75E Determination of ex parte proceedings
(1) A Magistrate who proceeds to hear and determine a matter without the defendant may determine the matter by convicting the defendant, by making an order as to the defendant or by dismissing the information.(2), (3) (Repealed)(4) The Magistrate may adjourn the proceedings to enable the defendant to appear or be brought before the Magistrate for sentencing.s 75E: Ins 1997 No 107, Sch 1 [4]. Am 1999 No 94, Sch 4.35 [14].
75F Application of section 10 of the Crimes (Sentencing Procedure) Act 1999
The provisions of section 10 of the Crimes (Sentencing Procedure) Act 1999 apply to any proceedings under sections 75B–75E as if the defendant had been charged before the court with the offence referred to in the information to which the proceedings relate.s 75F: Ins 1997 No 107, Sch 1 [4]. Am 1999 No 94, Sch 4.35 [15].
76 Procedure where either party does not appear at adjourned hearing
(1) If, upon the day and at the time and place to which the hearing or further hearing of the information or complaint has been adjourned, either or both of the parties does, or do, not appear in person or by his, her or their counsel or attorney, the Justice or Justices, then and there present, may proceed with the hearing as if such party or parties were present, and in cases where it is the informant or complainant who does not so appear may dismiss the information or complaint with or without costs.(2) Where a defendant charged with two or more offences (whether of a like or different nature), the hearings or further hearings of which have been adjourned to the same time and place, does not appear at the time and place, the Justice or Justices may proceed to hear and determine all or any of the charges together and adjudicate on the charges in the absence of the defendant.s 76: Am 1987 No 48, Sch 12 (4).
77 Where both parties appear Justices to hear and determine the case
If, upon the day and at the time and place appointed for hearing or to which the hearing or further hearing has been adjourned, both parties appear in person or by their respective counsel or attorneys the Justice or Justices shall proceed to hear the case.
78 Defendant to plead
(1) Where the defendant appears at the hearing and has been provided with a written copy of any charges against the defendant, the substance of the information or complaint shall be stated to the defendant, and he or she shall be asked if he or she has any cause to show why he or she should not be convicted or why an order should not be made against the defendant, as the case may be.(2) If he or she thereupon admits the truth of the information or complaint and shows no sufficient cause why he or she should not be convicted or why an order should not be made against him or her then the Justice or Justices present at the hearing shall convict him or her or make an order against him or her accordingly.(3) If he or she does not admit the truth of the information or complaint then the said Justice or Justices shall proceed to hear the prosecutor or complainant and the witnesses whom he or she examines and such other evidence as he or she adduces in support of the information or complaint and to hear the defendant and the witnesses whom he or she examines and such other evidence as he or she adduces in his or her defence.s 78: Am 1983 No 11, Sch 1 (1).
78A Provision for hearing cases together
(1) Where the defendant is charged with 2 or more offences, the Justice or Justices have jurisdiction to hear and determine the charges together if:(a) the defendant and the informant or complainant consent,(b) the offences arise out of the same set of circumstances, or(c) the offences form or are part of a series of offences of the same or a similar character.(2) Where 2 or more defendants are separately charged with offences, the Justice or Justices have jurisdiction to hear and determine the charges together, if:(a) the defendants and the informants or complainants consent,(b) the offences arise out of the same set of circumstances, or(c) the offences form or are part of a series of offences of the same or a similar character.(3) Any such charges shall not be heard and determined together if the Justice or Justices are of the opinion that the charges ought to be heard and determined separately in the interests of justice.s 78A: Ins 1940 No 6, sec 2 (1) (l). Subst 1987 No 178, Sch 1 (2).
79 Addresses of parties
The practice upon the hearing of any information or complaint shall, in respect of the examination and cross-examination of witnesses and the right of addressing the Justice or Justices upon the case in reply or otherwise, be as nearly as possible in accordance with that of the Supreme Court upon a trial on indictment.s 79: Am 1970 No 52, Second Sch; 1983 No 11, Sch 3.
80 After hearing case Justices to convict or make an order or dismiss case
After hearing what each party has to say and the witnesses and the evidence adduced, the said Justice or Justices shall consider and determine the whole matter, and convict or make an order upon the defendant or dismiss the information or complaint, as the case may require.s 80: Am 1974 No 50, sec 14 (b).
80A, 80AA (Repealed)
s 80A: Ins 1985 No 207, Sch 1 (1). Rep 1996 No 99, Sch 2.9 [8].
s 80AA: Ins 1985 No 207, Sch 3 (5). Am 1987 No 266, Sch 1; 1990 No 46, Sch 1; 1996 No 111, Sch 1.5 [3] [4]; 1998 No 49, Sch 16 [5]. Rep 1999 No 94, Sch 4.35 [16].
80AB Restriction on imposing sentences of imprisonment
(1) A Justice or Justices shall not sentence a person to full-time imprisonment unless satisfied, having considered all possible alternatives, that no other course is appropriate.(2) A Justice or Justices shall:(a) when sentencing a person to imprisonment—state that, before imposing the sentence, all possible alternatives were considered, and(b) if the regulations so provide—record the statement as prescribed by the regulations.(3) A sentence is not invalidated by a failure to comply with this section.s 80AB: Ins 1988 No 26, sec 3.
81 Payment of costs
(1) When convicting or making an order against a defendant, the Justice or Justices may order:(a) that the defendant pay to the prosecutor or complainant such professional costs as the Justice or Justices consider to be just and reasonable, and(b) that the defendant:(i) if the prosecutor or complainant has paid court costs—pay those costs to the Clerk of the Local Court for payment to the prosecutor or complainant, or(ii) in any other case—pay court costs to the Clerk of the Local Court.(1A) When making an order dismissing the information, complaint or charge against a defendant, the Justice or Justices may order that the prosecutor or complainant pay to the defendant such professional costs as the Justice or Justices consider to be just and reasonable.(1B) The amount that may be awarded under subsection (1) (b) for court costs is:(a) the amount specified in item 1 of Schedule 1 to the Justices (General) Regulation 1993, or(b) such other amount as the Justice or Justices consider to be just and reasonable in the circumstances of the case.(2) The amount so allowed for costs shall in all cases be specified in the conviction or order.(3)(a) For the purpose of the exercise of the power conferred by subsection (1), any order made under section 10 of the Crimes (Sentencing Procedure) Act 1999 shall have the like effect as a conviction.(b) The amount allowed for costs under subsection (1) as extended by this subsection shall be specified in the order made under section 10 of the Crimes (Sentencing Procedure) Act 1999 and that order shall be deemed to be an order whereby a sum of money is adjudged to be paid within the meaning of this Act.(4) Professional costs are not to be awarded in favour of a defendant unless the Justice or Justices is or are satisfied as to any of the following:(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecution in an improper manner,(c) that the prosecution unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the defendant might not be guilty or that, for any other reason, the proceedings should not have been brought,(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecution, it is just and reasonable to award professional costs.(5) Subsection (4) does not apply to the awarding of professional costs against an informant or complainant acting in a private capacity.(6) For the purposes of subsection (5), an officer of the Royal Society for the Prevention of Cruelty to Animals, or of any other charitable organisation under the Prevention of Cruelty to Animals Act 1979, is taken not to be acting in a private capacity if the officer acts as the informant or complainant in any proceedings under that Act.(7) In this section:professional costs means costs (other than court costs) relating to professional expenses and disbursements (including witnesses’ expenses) in respect of proceedings before a Justice or Justices.s 81: Am 1940 No 6, sec 2 (1) (m); 1954 No 32, sec 6; 1979 No 178, Sch 2 (6); 1991 No 79, Sch 1 (2); 1996 No 111, Sch 1.5 [5] [6]; 1999 No 94, Sch 4.35 [17] [18]; 2000 No 31, Sch 9 [1]–[4].
82–84 (Repealed)
s 82: Am 1908 No 12, sec 22; 1931 No 17, sec 2; 1937 No 35, Second Sch; 1940 No 6, sec 2 (1) (n); 1964 No 74, Sch 2; 1967 No 28, sec 3; 1968 No 3, sec 11 (c); 1971 No 3, sec 3; 1978 No 63, Sch 1 (6); 1982 No 165, Sch 4 (4); 1985 No 207, Sch 1 (2); 1987 No 253, Sch 1 (1); 1987 No 266, Sch 1. Rep 1996 No 99, Sch 2.9 [9].
s 83: Am 1940 No 6, sec 2 (1) (o); 1985 No 207, Sch 1 (3). Rep 1996 No 99, Sch 2.9 [10].
s 84: Am 1909 No 24, sec 14; 1940 No 6, sec 2 (1) (q); 1947 No 3, sec 2 (1) (j); 1982 No 165, Sch 4 (5). Rep 1985 No 207, Sch 1 (4).
84A Traffic offences committed by children
(1) In this section:child, in relation to a traffic offence, includes a person who was under the age of 18 years when the person committed the offence and was under the age of 21 years when the person was charged before a Justice or Justices with the offence.traffic offence has the same meaning as it has in the Children (Criminal Proceedings) Act 1987.(2) A Justice or Justices may, in respect of a child found guilty of a traffic offence, deal with the child in accordance with Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987.(3) For the purpose of dealing with a person in accordance with Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987, a Justice or Justices shall have and may exercise the functions of the Children’s Court under that Division in the same way as if:(a) the Justice or Justices were the Children’s Court, and(b) the offence were an offence to which that Division applies.(4) A Justice or Justices may not impose a sentence of imprisonment on a child found guilty of a traffic offence.s 84A: Ins 1987 No 58, Sch 3.
85 Minute or memorandum of conviction or order to be made at the same time
(1) If the Justice or Justices convict or make an order against the defendant a minute or memorandum of the conviction or order shall be made at the same time.No fee shall be paid for any such minute or memorandum.(2)–(4) (Repealed)s 85: Am 1909 No 24, sec 13.
86 Order and certificate of dismissal
(1) If the Justice or Justices dismiss an information or complaint the Justice or Justices may, on being required to do so, and if they think fit, draw up an order of dismissal and give the defendant a certificate thereof.(2) A certificate of dismissal shall, upon production and without further proof, be a bar to any subsequent information or complaint for the same matter against the same person.
Subdivisions 8, 9
86A–97 (Repealed)
pt 4, div 2, sdiv 8: Rep 1996 No 99, Sch 2.9 [11].
s 86A: Ins 1985 No 207, Sch 1 (5). Am 1989 No 196, Sch 1 (1). Rep 1996 No 99, Sch 2.9 [11].
s 87: Am 1909 No 24, sec 15; 1985 No 1, Sch 1 (4). Subst 1985 No 207, Sch 1 (6). Am 1987 No 253, Sch 1 (2); 1987 No 266, Sch 1; 1989 No 196, Sch 1 (2); 1990 No 84, Sch 2; 1992 No 34, Sch 1; 1994 No 30, Sch 1 (1); 1996 No 111, Sch 1.5 [7]. Rep 1996 No 99, Sch 2.9 [11].
s 87A: Ins 1987 No 253, Sch 1 (3). Rep 1987 No 266, Sch 1. Ins 1990 No 84, Sch 2. Rep 1996 No 99, Sch 2.9 [11].
s 88: Am 1909 No 24, sec 15; 1985 No 1, Sch 1 (4); 1985 No 207, Sch 1 (7); 1996 No 111, Sch 1.5 [8]. Rep 1996 No 99, Sch 2.9 [11].
s 89: Am 1985 No 207, Sch 1 (8); 1989 No 196, Sch 1 (3); 1991 No 17, Sch 1; 1994 No 30, Sch 1 (2). Rep 1996 No 99, Sch 2.9 [11].
s 89A: Ins 1985 No 207, Sch 1 (9). Rep 1996 No 99, Sch 2.9 [11].
s 89B: Ins 1989 No 196, Sch 1 (4). Subst 1994 No 30, Sch 1 (3). Rep 1996 No 99, Sch 2.9 [11].
s 89C: Ins 1989 No 196, Sch 1 (4). Subst 1994 No 30, Sch 1 (3). Rep 1996 No 99, Sch 2.9 [11].
ss 89D–89F: Ins 1994 No 30, Sch 1 (3). Rep 1996 No 99, Sch 2.9 [11].
s 89G (formerly s 89D): Ins 1989 No 196, Sch 1 (4). Am 1994 No 30, Sch 1 (4) (a) (b). Renumbered 1994 No 30, Sch 1 (4) (c). Am 1995 No 27, Sch 1.15. Rep 1996 No 99, Sch 2.9 [11].
s 90: Am 1909 No 24, sec 16; 1940 No 6, sec 2 (1) (g); 1967 No 28, sec 6; 1979 No 178, Sch 2 (7). Subst 1985 No 207, Sch 1 (10). Am 1989 No 196, Sch 1 (5); 1993 No 46, Sch 1; 1994 No 30, Sch 1 (5). Rep 1996 No 99, Sch 2.9 [11].
s 90A: Ins 1985 No 207, Sch 1 (10). Am 1987 No 266, Sch 1. Subst 1994 No 30, Sch 1 (6). Rep 1996 No 99, Sch 2.9 [11].
s 91: Am 1967 No 77, sec 7 (1); 1985 No 207, Sch 1 (11). Rep 1996 No 99, Sch 2.9 [11].
s 91A: Ins 1987 No 266, Sch 1. Am 1989 No 196, Sch 1 (6); 1994 No 30, Sch 1 (7). Rep 1996 No 99, Sch 2.9 [11].
s 92: Am 1982 No 165, Sch 4 (6). Rep 1996 No 99, Sch 2.9 [11].
s 93: Rep 1996 No 99, Sch 2.9 [11].
s 94: Am 1940 No 6, sec 2 (1) (r); 1978 No 63, Sch 1 (7); 1982 No 165, Sch 4 (6); 1985 No 207, Sch 1 (12). Rep 1996 No 99, Sch 2.9 [11].
s 95: Rep 1996 No 99, Sch 2.9 [11].
pt 4, div 2, sdiv 9: Rep 1998 No 107, Sch 2 [7].
s 96: Am 1954 No 25, sec 18 (1) (b); 1971 No 70, sec 3 (i); 1978 No 162, Sch 1 (21); 1996 No 99, Sch 2.9 [12]. Rep 1998 No 107, Sch 2 [7].
s 96A: Ins 1971 No 70, sec 3 (j). Am 1978 No 162, Sch 1 (22); 1999 No 94, Sch 4.35 [19]. Rep 1998 No 107, Sch 2 [7].
s 97: Am 1978 No 162, Sch 1 (23); 1986 No 212, Sch 1. Rep 1998 No 107, Sch 2 [7].
Subdivision 10 Miscellaneous
98 One Justice may receive information etc and issue summonses and warrants
(1) One Justice, who is not for the time being constituting a Local Court, may receive an information or complaint and grant a summons or warrant thereon, and may issue his or her subpoena or warrant to compel the attendance of any witness, and do all other necessary acts and matters preliminary to the hearing, notwithstanding that by this Act or by the statute dealing with the matter, the information or complaint must be heard and determined by two or more Justices.(2) One Justice may after any such case has been heard and determined issue a warrant of commitment thereon or any other process to enforce an adjudication.(3) The Justice who so acts as in the two preceding subsections mentioned need not be one of the Justices by and before whom the case is heard and determined.s 98: Am 1909 No 24, sec 17; 1982 No 165, Sch 4 (7); 1998 No 172, Sch 5 [16].
99 (Repealed)
s 99: Rep 1970 No 85, sec 4 (1) (b).
100 Aiders and abettors punishable as principals
(1) Every person who aids, abets, counsels, or procures the commission of any offence, now or hereafter made punishable on summary conviction, may be proceeded against and convicted, together with or before or after the conviction of the principal offender.(2) On conviction such person shall be liable to the penalty and punishment to which the principal offender is liable.
Division 3 Attendance notices for indictable or summary offences
pt 4, div 3: Ins 1985 No 207, Sch 2 (6).
Subdivision 1
100AA (Repealed)
pt 4, div 3, sdiv 1: Ins 1985 No 207, Sch 2 (6). Rep 1993 No 45, Sch 1 (1).
s 100AA: Ins 1985 No 207, Sch 2 (6). Rep 1993 No 45, Sch 1 (1).
Subdivision 2 Issue and service of attendance notices
100AB Issue of attendance notice
Where an information may be laid before a Justice against any person:(a) under section 21, for an indictable offence, ora member of the police force may issue a notice for the attendance of the person.(b) under section 52, for an offence for which the person is liable to be punished upon summary conviction,s 100AB: Ins 1985 No 207, Sch 2 (6). Am 1993 No 45, Sch 1 (2).
100AC Form of attendance notice
An attendance notice shall:(a) be directed to the person to whom it relates,(b) name the person who is to be the informant for the purposes of the notice,(c) describe the offence to which it relates and state shortly particulars of the offence,(d) require the person to whom it is directed to appear at a certain time and place before a Local Court to be dealt with according to law,(e) state that failure to so appear may result in the arrest of the person to whom it is directed or in the matter being dealt with in the absence of that person, and(e1) set out, or be accompanied by, information about the right under section 75 to notify a plea in writing, and(f) be signed by:(i) the person to whom it is directed, and(ii) the member of the police force who issued it.s 100AC: Ins 1985 No 207, Sch 2 (6). Am 1993 No 45, Sch 1 (3); 1997 No 107, Sch 1 [5]; 1998 No 49, Sch 16 [6].
100AD Service of attendance notice
(1) A copy of an attendance notice shall be served personally by a member of the police force upon the person to whom it is directed.(2) A member of the police force, when serving a copy of an attendance notice on a person, shall explain to the person that failure to appear as required by the notice may result in the arrest of the person or in the matter to which the notice relates being dealt with in the absence of the person.(3) A failure to comply with subsection (2) shall not invalidate service of a copy of an attendance notice if the notice complies with section 100AC (a)–(e).(4) The issue of an attendance notice or the service of a copy of an attendance notice does not render unlawful the arrest, before or after the issue of the notice, of the person to whom the notice is directed for the offence to which the notice relates or for any other offence or the detention of the person pursuant to any such arrest.s 100AD: Ins 1985 No 207, Sch 2 (6).
100AE Presumptions
In any proceedings it shall be presumed, in the absence of evidence to the contrary:(a) that the person to whom an attendance notice is directed has signed the notice, if the notice purports to have been signed by that person,(b) that a member of the police force issued and signed an attendance notice, if the notice purports to have been issued and signed by a member of the police force, and(c) that a copy of an attendance notice has been served by a member of the police force on the person to whom the notice is directed, if the notice bears a certificate to that effect purporting:(i) to specify the time and place at which the copy was so served, and(ii) to be signed by the member of the police force who served the notice.s 100AE: Ins 1985 No 207, Sch 2 (6). Am 1993 No 45, Sch 1 (4).
Subdivision 3 Effect of attendance notice
100AF Attendance notice deemed to be an information
(1) Where an attendance notice, a copy of which has been served in accordance with section 100AD, is tendered to a Justice or Justices constituting a Local Court, the notice shall be deemed to be an information laid under section 21 or 52, as the case may require, being an information which is not substantiated by the oath of the informant or a witness.(2) Where an attendance notice is, under subsection (1), deemed to be an information:(a) the person to whom the notice was directed shall be deemed to be the defendant to whom the information relates, and(b) the person who is named in the notice as the informant for the purposes of the notice shall be deemed to be the informant for the purposes of the information.s 100AF: Ins 1985 No 207, Sch 2 (6).
100AG Arrest warrant
(1) Whenever any person for whose appearance an attendance notice has been issued does not appear at the time and place appointed by the notice, a Justice or Justices constituting a Local Court may, upon proof of the due service of a copy of the notice upon the person at a reasonable time before the time so appointed, issue or make an order authorising the issue of a warrant for the apprehension of the person.(2) A warrant authorised to be issued under subsection (1) may be signed by any Justice.(3) Whenever any person is apprehended under any such warrant, the Justice or Justices before whom the person is brought shall:(a) subject to the Bail Act 1978, commit the person:(i) by warrant to a correctional centre, police station or court cell complex, orand order the person to be brought up at a time and place to be appointed by the Justice or Justices, and(ii) verbally to such safe custody as the Justice or Justices may think fit,(b) give due notice of the time and place so appointed to the person named in the attendance notice as the informant.(4) Sections 64 and 65 apply to and in respect of a warrant issued under this section in the same way as they apply to and in respect of a warrant issued under Division 2.s 100AG: Ins 1985 No 207, Sch 2 (6). Am 1999 No 94, Sch 4.35 [20].
Division 4 Attendance of witnesses and production of evidence
pt 4, div 4 (ss 100AH–100AQ): Ins 1998 No 172, Sch 5 [17].
100AH Definitions
In this Division:person named in relation to a subpoena means the person to whom the subpoena is addressed.subpoena means any of the following issued under section 100AJ:(a) a subpoena to give evidence,(b) a subpoena for production,(c) a subpoena both to give evidence and for production.subpoena both to give evidence and for production means a written order requiring the person named to attend as directed by the order as a witness to give evidence and to produce a document or thing.subpoena for production means a written order requiring the person named to attend as directed by the order and produce a document or thing.subpoena to give evidence means a written order requiring the person named to attend as directed by the order as a witness to give evidence.pt 4, div 4 (ss 100AH–100AQ): Ins 1998 No 172, Sch 5 [17].
100AI Application of Division
(1) This Division applies to proceedings before a Local Court except proceedings before a Local Court that are commenced under the Local Courts (Civil Claims) Act 1970 or any other Act that provides for a procedure to compel the attendance of persons to give evidence, or produce documents or things, or both, at those proceedings.(2) This Division does not permit a subpoena to be issued to a person who:(a) has made a written statement for the purposes of Subdivision 7A (Written statements in committal proceedings) of Division 1, and(b) is not the subject of a direction under section 48E (Direction to witness to attend).pt 4, div 4 (ss 100AH–100AQ): Ins 1998 No 172, Sch 5 [17].
100AJ Issue of subpoenas
(1) On request by a party to any proceedings to which this Division applies, and subject to and in accordance with the rules, a Justice, other than a Justice sitting as a Local Court, is to issue to the person named:(a) a subpoena to give evidence, or(b) a subpoena for production, or(c) a subpoena both to give evidence and for production.(2) Subsection (1) does not prevent the issue of a subpoena to give evidence and a subpoena for production to the same person in the same proceedings.(3) A party may require a subpoena for production to be returnable:(a) on any day on which the proceedings are listed before a Local Court, or any day not more than 21 days before any such day, or(b) with the leave of the Local Court or a Justice, other than a Justice sitting as a Local Court, on any other day.(4) Unless a Local Court otherwise orders, a subpoena issued at the request of a party who is not the prosecuting authority in the proceedings is not to require the person named to attend or produce any document or thing on any day on which his or her attendance is required unless an amount prescribed by the rules for the expenses of complying with the subpoena in relation to that day is paid or tendered to the person at the time of service of the subpoena or not later than a reasonable time before that day.(5) The person named is not required to produce any document or thing if:(a) it is not specified or sufficiently described in the subpoena, or(b) the person named would not be required to produce the document or thing on a subpoena for production in the Supreme Court.pt 4, div 4 (ss 100AH–100AQ): Ins 1998 No 172, Sch 5 [17].
100AK Production by non-party
(1) If the person named in a subpoena for production is not a party in the proceedings, the subpoena is, unless a Local Court otherwise orders, to permit the person to produce the document or thing to the Local Court specified in the subpoena not later than the day before the first day on which the person’s attendance is required, instead of attending and producing the document or thing as required by the subpoena.(2) If a document or thing is produced under subsection (1), a Justice, other than a Justice sitting as a Local Court, is:(a) to give a receipt to the person producing the document or thing, and(b) to produce the document or thing as the nature of the case requires or as the Local Court may direct.(3) If a document or thing is produced under subsection (1), a Justice, other than a Justice sitting as a Local Court, may, if the Justice thinks fit, order that the subpoena is no longer to be of any force or effect and return the document or thing to the person who produced it in the following circumstances:(a) the hearing of the proceedings is adjourned before the document or thing is tendered to the Local Court,(b) the document or thing is produced in compliance with a subpoena that is returnable under subsection 100AJ (3) on a day other than a day on which the proceedings are heard.(4) Subsection (3) does not operate to prevent the issue of a further subpoena requiring the production of a document or thing returned under that subsection.(5) This section and section 100AJ do not affect the operation of Division 1 of Part 4.6 of the Evidence Act 1995 (Requests to produce documents or call witnesses).pt 4, div 4 (ss 100AH–100AQ): Ins 1998 No 172, Sch 5 [17].
100AL Subpoena may be set aside
(1) A Local Court may, on application by the person named in a subpoena, set aside the subpoena wholly or in part.(2) Notice of an application under subsection (1) is to be filed and served as prescribed by the rules on the party on whose request the subpoena was issued.pt 4, div 4 (ss 100AH–100AQ): Ins 1998 No 172, Sch 5 [17].
100AM Inspection of subpoenaed documents or things
(1) A party or a party’s solicitor or barrister may, if a Local Court so orders:(a) inspect documents or things produced in compliance with a subpoena, and(b) take copies of any documents so inspected.(2) Any such order may be made on such terms and conditions as the Local Court thinks fit.(3) The function of a Local Court to make an order under subsection (1) may by exercised by a Justice, other than a Justice sitting as a Local Court, unless:(a) the Local Court otherwise orders, or(b) a party, the person named in the subpoena or a person claiming privilege in respect of the document has notified the Local Court in the manner prescribed by the rules that the party or person objects to the making of an order under subsection (1).pt 4, div 4 (ss 100AH–100AQ): Ins 1998 No 172, Sch 5 [17].
100AN Warrant may issue for failure to comply with subpoena
(1) A Local Court may, on the application of a party who requested the issue of a subpoena, or on the Local Court’s own motion, order that a warrant be issued directing that the person named in the subpoena be apprehended and brought before a Local Court as soon as practicable if:(a) the person named has not complied with the subpoena, and(b) the Local Court is satisfied that the requirements of this Division for subpoenas were complied with and that no just cause or reasonable excuse has been offered for the failure to comply.(2) The Local Court before whom a person is brought after having been apprehended under a warrant referred to in subsection (1):(a) subject to the Bail Act 1978, must order that a warrant be issued for the committal of the person to a correctional centre or other place of security, and(b) must order the person to be brought before a Local Court at such time and place as is specified in the order, and(c) must give due notice of the time and place so specified to the person who commenced the proceedings to which the subpoena relates.(3) The Bail Act 1978 applies to a person who is brought before a Local Court after having been apprehended under a warrant referred to in subsection (1) in the same way as it applies to an accused person, and for that purpose, bail may be granted to the person with respect to the period between:(a) the person’s being brought before a Local Court under a warrant for the purpose of being examined as a witness or producing a document or thing, and(b) the person’s being examined as a witness or producing the document or thing.(4) A warrant under this section may be issued by any Justice.(5) Sections 64 (Form of warrant) and 65 (No objection for defect or variance) apply to and in respect of a warrant referred to in subsection (1), with any necessary modifications, in the same way as they apply to and in respect of a warrant issued under Division 2.pt 4, div 4 (ss 100AH–100AQ): Ins 1998 No 172, Sch 5 [17].
100AO How witness refusing to give evidence to be dealt with
(1) This section applies to a person who:(a) appears before a Local Court on a subpoena, or(b) appears before a Local Court on bail after being apprehended under a warrant referred to in section 100AN (1), orto give evidence, or produce any document or thing, or both.(c) is brought before a Local Court under a warrant referred to in section 100AN (2) (a),(2) The Local Court may order that a warrant be issued for the committal of a person to whom this section applies to a correctional centre for a period not exceeding 7 days if the person refuses, without offering any just cause or reasonable excuse:(a) to be examined on oath, or(b) to take an oath, or(c) to answer, after having taken an oath, any questions that are put to the person concerning the subject-matter of the proceedings, or(d) to produce the document or thing.(3) However, the person is to be released before the expiration of those 7 days if the person:(a) consents to be examined on oath and to answer questions concerning the subject-matter of the proceedings, or(b) produces the document or thing.(4) A warrant under this section may be issued by any Justice.(5) This section and section 100AN apply in relation to a subpoena to the exclusion of section 194 (Witnesses failing to attend proceedings) of the Evidence Act 1995.(6) In this section, a reference to a person who appears before a Local Court on bail after being apprehended under a warrant referred to in section 100AN (1) includes a reference to a person in respect of whom the requirement for bail has been dispensed with after being so apprehended.pt 4, div 4 (ss 100AH–100AQ): Ins 1998 No 172, Sch 5 [17].
100AP Service of subpoenas
(1) A subpoena is to be served within a reasonable time.(2) Without affecting subsection (1), a subpoena may not be served on the person named later than 5 days before the first day on which the person is required to attend or produce any document or thing unless a Local Court or a Justice, other than a Justice sitting as a Local Court, otherwise orders.(3) Service of a subpoena may be effected by delivering a copy of the subpoena to the person named or in such other manner as may be prescribed by the rules.(4) Without limiting subsection (3), the rules may provide for substituted service to be effected in such manner and in such circumstances as may be prescribed by the rules.pt 4, div 4 (ss 100AH–100AQ): Ins 1998 No 172, Sch 5 [17].
100AQ Defects in subpoenas
(1) No objection is to be taken or allowed to a subpoena for any alleged defect in substance or in form.(2) Nothing in this section affects the operation of section 100AL (Subpoena may be set aside).pt 4, div 4 (ss 100AH–100AQ): Ins 1998 No 172, Sch 5 [17].
Part 4A Review of decisions by Local Courts
pt 4A: Ins 1967 No 28, sec 4 (b). Subst 1997 No 107, Sch 1 [6].
pt 4A, hdg: Ins 1967 No 28, sec 4 (b). Am 1986 No 113, Sch 1 (1); 1988 No 96, sec 4. Subst 1997 No 107, Sch 1 [6].
Division 1 Applications and referrals for review
pt 4A, div 1, hdg: Ins 1997 No 107, Sch 1 [6].
100A Outline of Part
(1) This Part applies to review procedures for convictions, penalties and orders by Magistrates in summary proceedings.(2) The steps for review are listed below:(a) Application to CourtAn application is made for an annulment of a conviction, a penalty or an order to a Local Court. An application may also be made to the Minister to have any such matter and any other conviction referred to a Local Court (see this Division).(b) HearingsApplications are to be dealt with by Magistrates. Specific grounds are set out for granting applications (see this Division).(c) Grant of applicationAfter a decision to annul a conviction, a penalty or an order, the matter is to be reheard by a Local Court (see Division 2).(3) This section does not affect the provisions of this Part that it summarises.s 100A: Ins 1967 No 28, sec 4 (b); 1970 No 85, sec 3; 1971 No 70, sec 3 (k); 1973 No 11, sec 6 (b); 1974 No 94, sec 6 (a); 1978 No 63, Sch 1 (8); 1982 No 165, Sch 5 (1); 1985 No 207, Schs 2 (7), 3 (6). Subst 1997 No 107, Sch 1 [6].
100B Application of Part to sentences
(1) A provision of this Part, or a right to make an application under this Part, about a sentence applies to any order made by a Magistrate on the conviction (or instead of a conviction) of a person, including (but not limited to) the following orders and decisions:(a) an order for compensation or forfeiture or relating to property,(b) an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 with respect to a person dealt with for an offence,(c) an order or a decision under section 9 of the Crimes (Sentencing Procedure) Act 1999 with respect to a person dealt with for an offence,(d) any other order or decision of any kind whatever made by a Magistrate with respect to a person dealt with for an offence (whether or not the person has been convicted) deferring passing sentence on the person and releasing the person subject to conditions or without conditions,(e) a decision within the meaning of section 42 (3) of the Children (Criminal Proceedings) Act 1987 made by the Children’s Court in respect of an offence committed by a person.(2) In this Part, imposing a sentence is taken to include making an order or a decision referred to in subsection (1).(3) Subsection (1) (e) does not affect the application of section 27 of the Children (Criminal Proceedings) Act 1987.s 100B: Ins 1967 No 28, sec 4 (b). Am 1973 No 11, sec 6 (c); 1974 No 94, sec 6 (b); 1982 No 165, Sch 5 (2). Subst 1997 No 107, Sch 1 [6]. Am 1999 No 94, Sch 4.35 [21] [22].
100C Part does not apply to fines and forfeiture orders
(1) This Part does not apply to a penalty notice enforcement order to which the Fines Act 1996 applies but does apply to a conviction or an order made against a person, or a sentence imposed on a person, in proceedings determined by a Local Court after the annulment of such an order.(2) This Part does not apply to a forfeiture order within the meaning of Part 7A of the Bail Act 1978.s 100C: Ins 1967 No 28, sec 4 (b). Am 1982 No 165, Sch 5 (3). Subst 1997 No 107, Sch 1 [6]. Am 1998 No 107, Sch 2 [8].
100D Applications for annulment
(1) An application may be made by or on behalf of a person for the annulment of any of the following:(a) a conviction or an order (other than an interlocutory order) made in respect of the person by a Magistrate that was made in the absence of the person,(b) a sentence imposed on the person by a Magistrate in the absence of the person.(2) An application for an annulment of a conviction or an order made by a Magistrate or a sentence imposed by a Magistrate may also be made by or on behalf of any person who is an informant in the proceedings concerned.s 100D: Ins 1967 No 28, sec 4 (b). Am 1982 No 165, Sch 5 (4). Subst 1997 No 107, Sch 1 [6].
100E Form of application
(1) An application under section 100D must be in writing to a Local Court.(2) The application must be lodged with a clerk of a Local Court.(3) If the application is lodged with a clerk of a Local Court other than the clerk of the Local Court in which the relevant conviction or order was made or sentence imposed, the clerk with whom the application is lodged must forward the application to the clerk of the other Local Court.(4) The regulations may prescribe the form for applications.ss 100E–100G: Ins 1967 No 28, sec 4 (b). Subst 1997 No 107, Sch 1 [6].
100F Time limit for application
(1) An application for an annulment under section 100D must be made within 2 years of the conviction or order being made or the sentence being imposed.(2) For the purposes of subsection (1) and section 100Q, time does not run during any period commencing when an application is made under this Part and ending when the relevant application is determined.ss 100E–100G: Ins 1967 No 28, sec 4 (b). Subst 1997 No 107, Sch 1 [6].
100G Decisions that may be referred for review
(1) The Minister may refer any of the following matters to the Local Court, if an application is made by any person to the Minister:(a) a conviction or an order (other than an interlocutory order) made against the person by a Magistrate,(b) a sentence imposed on a person by a Magistrate in the absence of the person.(2) The Minister must not refer a matter unless the Minister is satisfied that a question or doubt has arisen as to the guilt of the person or the person’s liability for a penalty.(3) The Local Court to which a matter involving a conviction, an order or a sentence is to be referred is the Local Court in which the conviction or order was made or in which the sentence was imposed.(4) A matter referred to a Local Court by the Minister is to be treated as an application for the purposes of this Part.(5) The Minister may refer a matter under this section at any time after the conviction or order is made or the sentence imposed.ss 100E–100G: Ins 1967 No 28, sec 4 (b). Subst 1997 No 107, Sch 1 [6].
100H Applicant
For the purposes of this Part, an applicant is a person who has made an application to a Local Court or the Minister under this Part.s 100H: Ins 1967 No 28, sec 4 (b). Am 1973 No 11, sec 6 (d). Subst 1997 No 107, Sch 1 [6].s 100HA: Ins 1986 No 113, Sch 1 (2). Rep 1988 No 96, sec 4.
100I Who may deal with applications
A Magistrate sitting alone is to exercise the jurisdiction of a Local Court under this Part.s 100I: Ins 1983 No 32, Sch 1 (2). Am 1985 No 106, Sch 1; 1985 No 136, Sch 1; 1986 No 27, sec 3; 1987 No 23, sec 7; 1987 No 26, sec 135; 1987 No 29, sec 27 (1); 1987 No 51, Sch 1; 1987 No 68, sec 93; 1987 No 132, sec 6; 1987 No 142, sec 4; 1987 No 143, Sch 2; 1988 No 25, sec 36; 1988 No 62, sec 4; 1988 No 67, sec 4; 1988 No 98, Sch 3 (1); 1988 No 114, Sch 4; 1988 No 119, sec 68; 1989 No 9, Sch 1; 1989 No 47, Sch 3; 1989 No 53, sec 4; 1989 No 208, sec 36; 1989 No 234, sec 30; 1990 No 31, sec 32; 1990 No 39, Sch 4; 1990 No 84, Sch 2; 1990 No 105, sec 4; 1990 No 121, Sch 5; 1991 No 34, Sch 3; 1991 No 53, Sch 1; 1992 No 49, Sch 2; 1992 No 67, sec 5; 1992 No 109, sec 4; 1993 No 11, Sch 3; 1993 No 31, sec 54; 1993 No 32, Sch 2; 1993 No 33, Sch 1; 1993 No 50, Sch 3; 1993 No 108, Sch 1; 1994 No 38, Sch 8; 1994 No 42, sec 4; 1994 No 43, sec 4; 1994 No 44, Sch 19; 1994 No 88, Sch 7; 1995 No 13, Sch 4.12; 1995 No 44, sec 4; 1995 No 89, Sch 8.2; 1995 No 99, Sch 1.11; 1996 No 4, Sch 3.1; 1996 No 13, Sch 1.2; 1996 No 17, Sch 5.8 [1]; 1996 No 20, sec 4; 1996 No 121, Sch 4.31; 1997 No 62, Sch 1.3; 1997 No 93, Sch 2. Rep 1996 No 99, Sch 2.9 [13]. Ins 1997 No 107, Sch 1 [6].
100J Notice of applications
A clerk of a Local Court to which an application is made or referred must, as soon as possible, refer the matter to the Local Court and give notice to the applicant and the parties interested of the date, time and place on or at which the application is to be determined.s 100J: Ins 1983 No 32, Sch 1 (2). Am 1993 No 75, Sch 1 (1). Rep 1996 No 99, Sch 2.9 [13]. Ins 1997 No 107, Sch 1 [6].s 100JA: Ins 1993 No 75, Sch 1 (2). Rep 1996 No 99, Sch 2.9 [13].
100K Grounds for granting applications
(1) A Local Court must grant an application if the applicant is the informant and if it is satisfied that there is just cause why the application should be granted.(2) A Local Court must grant an application if the applicant is a person other than the informant and if it is satisfied that:(a) the defendant was not aware of the relevant proceedings until the proceedings were completed or the sentence was imposed or the other action was taken, or(b) the defendant was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the relevant proceedings, or(c) having regard to the circumstances of the case, there is other just cause why the application should be granted.s 100K: Ins 1983 No 32, Sch 1 (2). Am GG No 73 of 2.5.1986, p 1928; 1989 No 226, Sch 1; 1990 No 46, Sch 1. Rep 1996 No 99, Sch 2.9 [13]. Ins 1997 No 107, Sch 1 [6].
100L Procedure for Local Courts dealing with applications
(1) A Local Court may, at its discretion, deal with an application with or without the parties being present and in open court or in chambers.(2) The regulations may make provision for or with respect to procedure and evidence for the purposes of the hearing of applications by Local Courts.s 100L: Ins 1983 No 32, Sch 1 (2). Am GG No 73 of 2.5.1986, p 1928; 1987 No 273, Sch 1; 1993 No 46, Sch 1; 1993 No 75, Sch 1 (3). Rep 1996 No 99, Sch 2.9 [13]. Ins 1997 No 107, Sch 1 [6].s 100LA: Ins 1988 No 98, Sch 3 (2). Rep 1996 No 99, Sch 2.9 [13].
100M Effect on application referred to Local Court if notice of referral not served
A Local Court may proceed to determine an application referred to it despite any omission or error in a notice under section 100J or the notice not being served, if:(a) the Local Court is satisfied that the applicant and the parties interested and concerned had knowledge of the date, time and place on or at which the application was to be determined and were not prejudiced by the omission, error or failure to serve the notice, or(b) the Local Court is satisfied that the applicant is avoiding service of the notice or cannot, after reasonable search and inquiry, be found.s 100M: Ins 1983 No 32, Sch 1 (2). Am 1988 No 98, Sch 3 (3). Rep 1996 No 99, Sch 2.9 [13]. Ins 1997 No 107, Sch 1 [6].
100N Stay of order or sentence
A Local Court dealing with an application may stay the execution of the conviction or the enforcement of the order or sentence concerned subject to such terms and conditions as the Court thinks fit.s 100N: Ins 1983 No 32, Sch 1 (2). Am 1987 No 266, Sch 1; 1987 No 273, Sch 1. Rep 1996 No 99, Sch 2.9 [13]. Ins 1997 No 107, Sch 1 [6].
100O Procedure after decision
(1) A Local Court must give notice of the Local Court’s decision as to an application to all parties interested or concerned.(2) If the matter is to be heard by a Local Court the notice must also notify the date, time and place on or at which the matter will be heard.(3) If a Local Court grants an application to annul a conviction, an order or a sentence, the procedures in Division 2 must be followed.s 100O: Ins 1983 No 32, Sch 1 (2). Am 1993 No 75, Sch 1 (4). Rep 1996 No 99, Sch 2.9 [13]. Ins 1997 No 107, Sch 1 [6].
100P (Repealed)
s 100P: Ins 1983 No 32, Sch 1 (2). Rep 1996 No 99, Sch 2.9 [13]. Ins 1997 No 107, Sch 1 [6]. Am 1999 No 39, Sch 4 [4]; 2001 No 85, Sch 5 [6].
100Q Limit on applications
(1) A person may not, except with the leave of the Local Court, make more than one application in relation to the same matter.(2) A Local Court may grant leave under this section if it is of the opinion that there are sufficient grounds for the application.(3) This section does not prevent a person from making an application under section 100D and an application to the Minister under section 100G in relation to the same matter.s 100Q: Ins 1983 No 32, Sch 1 (2). Am GG No 73 of 2.5.1986, p 1928. Subst 1986 No 218, Sch 21 (1). Rep 1996 No 99, Sch 2.9 [13]. Ins 1997 No 107, Sch 1 [6].
100R Notices
(1) Notices of hearing and all other notices authorised or required to be given under this Part by a Local Court or a clerk of a Local Court may be served on a person:(a) personally, or(b) by post, or(c) by means of a document exchange, or(d) by facsimile transmission or other electronic transmission, or(e) by any other manner prescribed by the regulations.(2) The address for service of any such notice includes:(a) in the case of an applicant, the address of the applicant as shown in the application or some other address notified to the clerk of the Local Court for the purpose of service or, if no such address is shown or notified, the address given by the applicant at the hearing of the information, or(b) in the case of any other person, the address notified to the clerk of the Local Court for the purpose of service or, if no such address is notified, the address given by that person at the hearing of the information.s 100R: Ins 1983 No 32, Sch 1 (2). Am GG No 73 of 2.5.1986, p 1928. Subst 1986 No 218, Sch 21 (1). Rep 1996 No 99, Sch 2.9 [13]. Ins 1997 No 107, Sch 1 [6].
Division 2 Procedure if conviction, order or sentence annulled
pt 4A, div 2, hdg: Ins 1997 No 107, Sch 1 [6].
100S Procedure if Local Court decides to annul conviction, order or sentence
(1) If a Local Court grants an application to annul a conviction, an order or a sentence, the Local Court must order that the conviction, order or sentence be annulled and proceed (either immediately or at a later date) to hear the matter of the information.(2) The Local Court is to hear and determine the matter of the relevant information in accordance with this Act as if no conviction or order had previously been made or no sentence had been previously imposed.(3) A Magistrate, other than the Magistrate who ordered the annulment of the conviction, order or sentence, may hear and determine the matter of the information in respect of which the conviction, order or sentence has been annulled.s 100S: Ins 1983 No 32, Sch 1 (2). Am GG No 73 of 2.5.1986, p 1928. Subst 1986 No 218, Sch 21 (1). Rep 1996 No 99, Sch 2.9 [13]. Ins 1997 No 107, Sch 1 [6].
100T Effect of annulment of conviction, order or sentence
(1) A conviction or an order made or a sentence imposed in proceedings before a Local Court and annulled under this Division ceases to have any force or effect as from the making of the order of annulment and any enforcement action already taken is to be reversed.(2) A conviction for an offence heard together with other offences may be annulled but the annulment is without prejudice to a conviction for any of the other offences heard at the same time.(3) If an order or a sentence imposing a fine is annulled, any amount that has been paid under the order or sentence is repayable to the person by whom it was paid.s 100T: Ins 1983 No 32, Sch 1 (2). Am GG No 73 of 2.5.1986, p 1928. Subst 1986 No 218, Sch 21 (1). Am 1987 No 48, Sch 12 (5). Rep 1996 No 99, Sch 2.9 [13]. Ins 1997 No 107, Sch 1 [6].s 100TA (previously s 100T (5)): Am 1987 No 48, Sch 12 (5); 1988 No 114, Sch 4. Rep 1996 No 99, Sch 2.9 [13].
100U Conviction on rehearing
A conviction, an order or a sentence, made or imposed on the hearing of an information after a previous conviction, order or sentence has been annulled, may be enforced in the same manner in all respects as if the previous conviction or order had not been made or the previous sentence had not been imposed.s 100U: Ins 1983 No 32, Sch 1 (2). Am 1987 No 178, Sch 1 (3); 1987 No 273, Sch 1. Rep 1996 No 99, Sch 2.9 [13]. Ins 1997 No 107, Sch 1 [6].
100V One or more offences
Any order, notification or process that may be made, given or issued under this Division may be validly made, given or issued in relation to one offence or more than one offence.s 100V: Ins 1983 No 32, Sch 1 (2). Subst 1986 No 218, Sch 21 (2). Rep 1996 No 99, Sch 2.9 [13]. Ins 1997 No 107, Sch 1 [6].
Part 4B
100W–100ZG (Repealed)
pt 4B: Ins 1983 No 32, Sch 1 (2). Rep 1996 No 99, Sch 2.9 [13].
pt 4B, div 3, hdg: Ins 1983 No 32, Sch 1 (2). Am 1988 No 98, Sch 3 (4). Rep 1996 No 99, Sch 2.9 [13].
s 100W: Ins 1983 No 32, Sch 1 (2). Rep 1996 No 99, Sch 2.9 [13].
s 100X: Ins 1983 No 32, Sch 1 (2). Rep 1996 No 99, Sch 2.9 [13].
s 100XA: Ins 1988 No 98, Sch 3 (5). Am 1996 No 111, Sch 1.5 [9]. Rep 1996 No 99, Sch 2.9 [13].
pt 4B, div 4: Ins 1987 No 253, Sch 1 (4). Rep 1996 No 99, Sch 2.9 [13].
pt 4B, div 4, hdg: Am 1988 No 114, Sch 4. Rep 1996 No 99, Sch 2.9 [13].
s 100Y: Ins 1987 No 253, Sch 1 (4). Am 1988 No 114, Sch 4. Rep 1996 No 99, Sch 2.9 [13].
s 100Z: Ins 1987 No 253, Sch 1 (4). Am 1988 No 114, Sch 4. Rep 1996 No 99, Sch 2.9 [13].
s 100ZA: Ins 1987 No 253, Sch 1 (4). Am 1988 No 20, Sch 8 (2). Rep 1996 No 99, Sch 2.9 [13].
ss 100ZB–100ZD: Ins 1987 No 253, Sch 1 (4). Rep 1996 No 99, Sch 2.9 [13].
s 100ZE: Ins 1987 No 253, Sch 1 (4). Am 1988 No 114, Sch 4. Rep 1996 No 99, Sch 2.9 [13].
s 100ZF: Ins 1987 No 253, Sch 1 (4). Rep 1996 No 99, Sch 2.9 [13].
s 100ZG: Ins 1987 No 253, Sch 1 (4). Rep 1996 No 99, Sch 2.9 [13].
Part 5 Appeals to Supreme Court
pt 5: Ins 1998 No 137, Sch 1 [2]. For information concerning this Part before the commencement of 1998 No 137, Sch 1 [2], see the historical table of amendments in the Legislative history.
Division 1 Preliminary
pt 5, div 1: Ins 1998 No 137, Sch 1 [2].
101 Definitions
In this Part:appeal means an appeal under this Part.appellant means a person who appeals or applies for leave to appeal under this Part.environmental offence means an offence against the environment protection legislation as defined in the Protection of the Environment Administration Act 1991.informant includes a complainant, the Director of Public Prosecutions and any other person responsible for the conduct of a prosecution.rules means rules of the Supreme Court.s 101: Ins 1998 No 137, Sch 1 [2]. Am 1999 No 39, Sch 4 [5].
102 Application of Part generally
(1) In this Part, a reference to a sentence includes a reference to:(a) a fine or sentence imposed by a Magistrate, and(b) any order made by a Magistrate:(i) on the conviction or instead of a conviction of a person, or(ii) as punishment for any act or omission.(2) Subsection (1) (b) includes but is not limited to the following orders and decisions:(a) an order for compensation or forfeiture,(b) an order to pay any sum of money (whether for payment by any person of costs of a party or witness or for any other purpose),(c) an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 with respect to a person dealt with for an offence,(d) an order or a decision under section 9 of the Crimes (Sentencing Procedure) Act 1999 with respect to a person dealt with for an offence,(e) a decision by a Magistrate exercising the jurisdiction of a Local Court under the Fines Act 1996 not to annul a fine enforcement order,(f) any other order or decision of any kind whatever made by a Magistrate with respect to a person dealt with for an offence (whether or not the person has been convicted) deferring passing sentence on the person and releasing the person subject to conditions or without conditions,(g) a decision within the meaning of section 42 (3) of the Children (Criminal Proceedings) Act 1987 made by a Magistrate exercising the jurisdiction of the Children’s Court in respect of an offence committed by a person.(3) This Part, to the extent to which it is not inconsistent with any other Act, applies to any order of a Magistrate made under another Act against which:(a) an appeal is provided for under the other Act to the Supreme Court, or(b) an appeal is provided for under the other Act but no court is specified for the appeal.(4) The provisions of this Part do not affect the provisions of the Home Detention Act 1996.(5) This Part does not apply to the exercise of ministerial functions by a Magistrate, except in relation to committal proceedings (as provided for by section 104 (3)).s 102: Ins 1998 No 137, Sch 1 [2]. Am 1999 No 39, Sch 4 [6]; 1999 No 94, Sch 4.35 [23] [24].
103 Application of Part to Justices
In this Part, a reference to a Magistrate includes a reference to any person (not being a Magistrate) who exercises the functions, powers or jurisdiction of a Justice or Justices conferred by this Act.s 103: Ins 1998 No 137, Sch 1 [2].
Division 2 Appeals to Supreme Court
pt 5, div 2: Ins 1998 No 137, Sch 1 [2].
104 When an appeal can be made by a defendant or other person
(1) Appeals by defendants A person against whom any conviction or order was made, or sentence was imposed, by a Magistrate in summary proceedings may appeal under this Division to the Supreme Court on any of the following grounds:(a) a ground that involves a question of law alone,(b) a ground that involves a question of mixed law and fact, but only with the leave of the Supreme Court,(c) the ground that the conviction, order or sentence cannot be supported having regard to the evidence.This subsection does not apply in respect of an order that is made in relation to committal proceedings or an interlocutory order.(2) Appeals by informants An informant may appeal under this Division to the Supreme Court against the following, on a ground that involves a question of law alone:(a) an order made by a Magistrate that stays summary proceedings for the prosecution of an offence,(b) an order made by a Magistrate in summary proceedings dismissing an information or complaint,(c) an order for costs made by a Magistrate in summary proceedings,(d) a sentence imposed by a Magistrate in summary proceedings.(3) Appeals in relation to committal proceedings A defendant or an informant may appeal under this Division to the Supreme Court against any order that is made in relation to committal proceedings, on a ground that involves a question of law alone, but only with the leave of the Supreme Court.(4) Appeals in relation to interlocutory orders A defendant or an informant may appeal under this Division to the Supreme Court against any interlocutory order that is made by a Magistrate in summary proceedings, on a ground that involves a question of law alone, but only with the leave of the Supreme Court.(5) Appeals by parties to civil proceedings A party to any proceedings under the Local Courts (Civil Claims) Act 1970 may appeal under this Division to the Supreme Court as provided for by section 69 of that Act.(6) Appeals concerning orders under the Crimes (Forensic Procedures) Act 2000 An appeal under this Division on a ground that involves a question of law alone may be made to the Supreme Court:(a) against an order (other than an interim order) made by a Magistrate under the Crimes (Forensic Procedures) Act 2000 authorising the carrying out of a forensic procedure on a person, or(b) against the refusal of a Magistrate to make such an order.s 104: Ins 1998 No 137, Sch 1 [2]. Am 1999 No 39, Sch 4 [7]–[9]; 2000 No 59, Sch 1.2 (am 2000 No 107, Sch 4 [18]).
104A Appeals in relation to environmental offences to be heard only with leave
(1) Despite section 104, a person may not appeal to the Supreme Court against a conviction or order made, or sentence imposed, by a Magistrate in proceedings relating to an environmental offence, except with the leave of the Supreme Court.(2) The Supreme Court is to give such leave only if it is of the opinion that the appeal is likely to require the resolution of a matter relating to constitutional law or a matter of general application.Note—Appeals in relation to environmental offences may be made to the Land and Environment Court (see Division 3A of Part 5B). Section 72 of the Land and Environment Court Act 1979 allows the Supreme Court to transfer proceedings to the Land and Environment Court.s 104A: Ins 1999 No 39, Sch 4 [10].
105 (Repealed)
s 105: Ins 1998 No 137, Sch 1 [2]. Rep 1999 No 39, Sch 4 [11].
106 How appeal to be made and conducted
(1) An appeal is to be made and conducted in accordance with the rules.(2) An appeal is to be made within such period after the date that the relevant conviction or order is made, or the sentence imposed, as may be prescribed by the rules.s 106: Ins 1998 No 137, Sch 1 [2].
107 Stay of execution of conviction, order or sentence pending appeal
(1) The execution of a sentence imposed as a consequence of a conviction, or of any other order, is stayed when a notice of appeal is given in accordance with this Division.(2) Subsection (1) does not apply to an appellant who is in custody when the appeal is made unless and until the appellant enters into a bail undertaking in accordance with the Bail Act 1978, or bail is dispensed with.(3) The stay of execution continues until the appeal is finally determined, subject to any order or direction of the Supreme Court and section 111 (3).(4) Despite subsection (1), any period during which the stay is in force is not to be taken into account when calculating the length of a period of disqualification from holding a driver licence resulting from a conviction under the road transport legislation within the meaning of the Road Transport (General) Act 1999.(5) An application for leave to appeal does not result in a stay of execution under this section.(6) In this section, a reference to an appellant who is in custody includes a reference to person who is the subject of an order for periodic detention under the Periodic Detention of Prisoners Act 1981 or a home detention order within the meaning of the Home Detention Act 1996.s 107: Ins 1998 No 137, Sch 1 [2]. Am 1999 No 19, Sch 2.17 [1]; 1999 No 39, Sch 4 [12].
108 Powers of Supreme Court to review stays of execution of sentences
(1) An informant may apply to the Supreme Court for a review of a stay of execution under section 107.(2) The Supreme Court may, on application being made under this section by an informant, order that a stay of execution under section 107 is to cease to have effect in relation to a sentence, but only if the informant satisfies the Court that the appellant has unduly delayed the appeal proceedings.ss 108–110: Ins 1998 No 137, Sch 1 [2].
109 Powers of Supreme Court in determining appeals
The Supreme Court may, after hearing an appeal, determine the appeal by dismissing the appeal or by doing any one or more of the following:(a) confirming, quashing, setting aside or varying the conviction, order or sentence appealed against or any part of it,(b) increasing or reducing the sentence appealed against,(c) making such other orders as it thinks just,(d) remitting the matter to the Magistrate who made the conviction or order, or imposed the sentence, to hear and determine the matter of the appeal.ss 108–110: Ins 1998 No 137, Sch 1 [2].
110 Errors in form or law not of themselves to enable appeal success
(1) The Supreme Court is not to quash or set aside a conviction, order or sentence on an appeal merely because of:(a) an omission or mistake in the form of the conviction or order, orif it appears to the Supreme Court that there were sufficient grounds before the Magistrate to have authorised a conviction, order or sentence free from the omission, mistake or error.(b) any error in law in the order or sentence,(2) In any such case, the Supreme Court may:(a) amend the conviction, order or sentence and determine the appeal as if the omission, mistake or error did not exist, or(b) remit the case to the Magistrate to make the conviction or order, or impose the sentence, authorised by law and to amend the conviction, order or sentence accordingly.ss 108–110: Ins 1998 No 137, Sch 1 [2].
111 Supreme Court may confirm conviction, order or sentence with effect from an earlier day
(1) The Supreme Court may order that a conviction, order or sentence confirmed or varied by it on appeal, or any part of it:(a) is to take effect on and from a day specified in the order, orbeing the day the order is made or an earlier day.(b) in the case of a sentence that has been served in part, is to recommence on and from a day specified in the order,(2) The order has effect even though a stay of execution may have been in force in respect of the sentence appealed against.(3) Any time spent in custody by an appellant pending the determination of an appeal counts as part of any sentence imposed on the appellant in relation to the matter on appeal.(4) Despite subsections (1) and (2), any period during which a stay of execution was in force in respect of a conviction under the road transport legislation within the meaning of the Road Transport (General) Act 1999 is not to be taken into account when calculating the length of a period of disqualification from holding a driver licence resulting from the conviction.s 111: Ins 1998 No 137, Sch 1 [2]. Am 1999 No 19, Sch 2.17 [2].
112 Appeals relating to certain traffic offences committed by children
(1) An appeal may be made in respect of a traffic offence committed by a child:(a) by the child concerned, or(b) if the child is under 18 years, on the child’s behalf and in the child’s name, by a person responsible for the child or the child’s counsel, or(c) if the child is in the care or custody of the Minister administering the Children (Care and Protection) Act 1987 or the Director-General of the Department of Community Services, by that Minister or the Director-General on behalf of the child.(2) In this section:child means a person who was under 18 years when the traffic offence was committed and under 21 years when summary proceedings for the offence were commenced.person responsible for a child has the same meaning as in the Children (Care and Protection) Act 1987.traffic offence means an offence arising under a provision of:(a) the road transport legislation within the meaning of the Road Transport (General) Act 1999, or(b) the Roads Act 1993, or(c) the Motor Vehicles (Third Party Insurance) Act 1942, or(d) the Recreation Vehicles Act 1983, orin respect of the use, standing or parking of a motor vehicle within the meaning of that provision.(e) any other Act prescribed for the purposes of this definition,s 112: Ins 1998 No 137, Sch 1 [2]. Am 1999 No 19, Sch 2.17 [3].
113 Limits on appeals
(1) A person may not appeal to the District Court or the Land and Environment Court against a conviction or order made, or a sentence imposed, by a Magistrate in summary proceedings if the person has instituted an appeal to the Supreme Court against the conviction, order or sentence.(2) A person’s right of appeal to the District Court or Land and Environment Court under this Act is not affected by subsection (1) if:(a) the person instituted an appeal to the Supreme Court against a conviction or order made, or a sentence imposed, by a Magistrate in summary proceedings, and(b) the Supreme Court:(i) remitted the matter on appeal to the Magistrate to hear and determine and the Magistrate has heard and determined the matter, or(ii) refused leave to appeal on a question of mixed law and fact, or(iii) refused leave to appeal in proceedings relating to an environmental offence.(3) A person may not appeal to the Supreme Court under this Division against any interlocutory judgment or order that may be appealed to the Court of Criminal Appeal under section 5F of the Criminal Appeal Act 1912, if the person has instituted an appeal to the Court of Criminal Appeal under that section.s 113: Ins 1998 No 137, Sch 1 [2]. Am 1999 No 39, Sch 4 [13] [14].
114 Circumstances where Magistrate unable to hear matter
If the Supreme Court remits a matter to a Magistrate under this Part and the Magistrate who made the original conviction or order, or imposed the original sentence, has ceased to hold office as a Magistrate or is for any other reason unable to continue to hear and determine the remitted matter, the matter is to be dealt with by another Magistrate nominated by the Chief Magistrate.s 114: Ins 1998 No 137, Sch 1 [2].
115 (Repealed)
s 115: Ins 1998 No 137, Sch 1 [2]. Rep 1999 No 39, Sch 4 [15].
Part 5A Appeals to District Court
pt 5A: Ins 1998 No 137, Sch 1 [2].
Division 1 Preliminary
pt 5A, div 1: Ins 1998 No 137, Sch 1 [2].
116 Definitions
In this Part:appellant means a person who appeals or applies for leave to appeal under this Part.informant includes a complainant, the Director of Public Prosecutions and any other person responsible for the conduct of a prosecution.Judge means a Judge of the District Court.registrar means a registrar of the District Court.s 116: Ins 1998 No 137, Sch 1 [2].
117 Application of Part generally
(1) In this Part, a reference to a sentence includes a reference to:(a) a fine or sentence imposed by a Magistrate, and(b) any order made by a Magistrate:(i) on the conviction or instead of a conviction of a person, or(ii) as punishment for any act or omission.(2) Subsection (1) (b) includes but is not limited to the following orders and decisions:(a) an order for compensation or forfeiture,(b) an order to pay any sum of money (whether for payment by any person of costs of a party or witness or for any other purpose),(c) an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 with respect to a person dealt with for an offence,(d) an order or a decision under section 9 of the Crimes (Sentencing Procedure) Act 1999 with respect to a person dealt with for an offence,(e) a decision by a Magistrate exercising the jurisdiction of a Local Court under the Fines Act 1996 not to annul a fine enforcement order,(f) any other order or decision of any kind whatever made by a Magistrate with respect to a person dealt with for an offence (whether or not the person has been convicted) deferring passing sentence on the person and releasing the person subject to conditions or without conditions,(g) a decision within the meaning of section 42 (3) of the Children (Criminal Proceedings) Act 1987 made by a Magistrate exercising the jurisdiction of the Children’s Court in respect of an offence committed by a person.(3) This Part, to the extent to which it is not inconsistent with any other Act, applies to any order of a Magistrate made under another Act against which:(a) an appeal is provided for under the other Act to the District Court, or(b) an appeal is provided for under the other Act but no court is specified for the appeal.(4) The provisions of this Part do not affect the provisions of the Home Detention Act 1996.(5) This Part does not apply to the exercise of ministerial functions by a Magistrate.s 117: Ins 1998 No 137, Sch 1 [2]. Am 1999 No 94, Sch 4.35 [25] [26].
118 Application of Part to Justices
In this Part, a reference to a Magistrate includes a reference to any person (not being a Magistrate) who exercises the functions, powers or jurisdiction of a Justice or Justices conferred by this Act.s 118: Ins 1998 No 137, Sch 1 [2].
Division 2 Appeals by defendants and other persons
pt 5A, div 2: Ins 1998 No 137, Sch 1 [2].
119 Definitions
In this Division:appeal means an appeal under this Division.application for leave to appeal means an application for leave to appeal under this Division.s 119: Ins 1998 No 137, Sch 1 [2].
120 When an appeal can be made by a defendant or other person
(1) Appeals against convictions, sentences or orders An appeal against any conviction or order made, or sentence imposed, by a Magistrate in summary proceedings may be made under this Division to the District Court by the person against whom the conviction or order was made or on whom the sentence was imposed.(2) Appeals under other Acts An appeal may be made under this Division to the District Court against an order of a Magistrate exercising the powers of a Justice or Justices under another Act, for which an appeal could be made under section 122, as in force before the commencement of this section.(3) Appeals against costs orders after committal proceedings An appeal may be made under this Division to the District Court by an informant against an order by a Magistrate at the conclusion of committal proceedings to pay any costs of a defendant in the proceedings.(4) Appeal may be made only after sentencing An appeal by a person under subsection (1) to the District Court may be made only after a Magistrate has sentenced the person (whether the person is appealing the sentence or the conviction or any other order of the Magistrate).Note—See section 117 for the expanded meaning of sentence in this Part.s 120: Ins 1998 No 137, Sch 1 [2]. Am 2001 No 85, Sch 5 [7].
121 Matters in which no appeal may be made
(1) Interlocutory orders An appeal may not be made against any interlocutory order made by a Magistrate.(2) Dismissal An appeal may not be made against the dismissal of an information by a Magistrate.(3) Costs awarded against informants An appeal may not be made against a decision of a Magistrate not to make an order for costs against an informant.s 121: Ins 1998 No 137, Sch 1 [2].
122 How appeal to be made
(1) An appeal is to be made by lodging a written notice of appeal not later than 28 days after the conviction or order is made, or the sentence is imposed, by the Magistrate.(2) A notice of appeal must state the intention to appeal and the general grounds of appeal.(3) If an application is made to a Local Court under Part 4A, the time for making an appeal does not start to run until that application is finally disposed of.Note—Section 126 sets out the manner in which an appeal is to be lodged.s 122: Ins 1998 No 137, Sch 1 [2].
123 Matters in which an appeal can be made only with leave of District Court
(1) An appeal may be made against a conviction entered after a guilty plea or in the absence of the defendant only with the leave of the District Court.(1A) An appeal may be made against an apprehended violence order under Part 15A of the Crimes Act 1900 that was made with the consent of the person against whom the order was made only with the leave of the District Court.(2) An appeal may be made by a person who has not exhausted all rights of appeal under Part 4A (other than an application under section 100G) only with the leave of the District Court.(3) An application for leave to appeal is to be made by lodging a written application and a notice of appeal complying with section 122 not later than 28 days after the conviction or order is made, or the sentence is imposed, by the Magistrate.Note—Section 126 sets out the manner in which an application is to be lodged.(4) If an application is made to a Local Court under Part 4A (other than an application under section 100G), the time for lodging an application for leave to appeal under this section does not start to run until the application under Part 4A is finally disposed of.(5) This section does not apply to an appeal against the severity of a sentence.s 123: Ins 1998 No 137, Sch 1 [2]. Am 1999 No 39, Sch 4 [16]; 2001 No 85, Sch 5 [8]–[10].
124 Appeal may be made with leave, outside time for giving notice of appeal
(1) A person who is entitled to appeal but who does not give notice of appeal or apply for leave to appeal within the time required by section 122 or 123 may apply, not later than 3 months after the conviction or order is made, or the sentence is imposed, by the Magistrate, to the District Court for leave to appeal against the conviction, order or sentence.(2) An application for leave to appeal is to be made by lodging a written application, stating the reasons why the notice or application was not made within the time required, and a notice of appeal complying with section 122.ss 124–126: Ins 1998 No 137, Sch 1 [2].
125 Time for notices of appeal when more than one conviction or order involved
An appeal, or an application for leave to appeal, against a conviction or order made, or a sentence imposed, on the same day as another conviction, sentence or order involving the same person against which an appeal, or an application for leave to appeal, is made as required by this Division may be heard and determined by the District Court even though the firstmentioned appeal or application was not made as required by this Division.ss 124–126: Ins 1998 No 137, Sch 1 [2].
126 Lodging of notices of appeal and applications for leave to appeal
(1) A notice of appeal or an application for leave to appeal may be lodged with the clerk of any Local Court or the person in charge of the place at which the appellant is then held in custody.(2) A person with whom a notice of appeal or an application is lodged under this section must immediately forward a copy of it to:(a) the informant or any other party to the proceedings concerned, and(b) the clerk of the Local Court where the conviction or order was made or the sentence imposed, if the person is not that clerk.(3) Nothing in this section prevents a person with whom a notice of appeal or application for leave to appeal is lodged under this section from giving a copy of the notice of appeal or application to any other interested person.(4) The clerk of the Local Court must, as soon as practicable after receiving a notice of appeal or an application for leave to appeal under this Division, transmit the relevant papers, including a copy of any relevant order or conviction made by the Magistrate, to a registrar for keeping in the records of the District Court.ss 124–126: Ins 1998 No 137, Sch 1 [2].
127 Stay of execution of conviction, order or sentence pending appeal
(1) The execution of a sentence imposed as a consequence of a conviction, or of any other order, is stayed when a notice of appeal is given in accordance with this Division.(2) Subsection (1) does not apply to an appellant who is in custody when the appeal is made unless and until the appellant enters into a bail undertaking in accordance with the Bail Act 1978, or bail is dispensed with.(3) The stay of execution continues until the appeal is finally determined, subject to any order or direction of the District Court and section 133P (3).(4) Despite subsection (1), any period during which the stay is in force is not to be taken into account when calculating the length of a period of disqualification from holding a driver licence resulting from a conviction under the road transport legislation within the meaning of the Road Transport (General) Act 1999.(5) An application for leave to appeal does not result in a stay of execution under this section.(6) In this section, a reference to an appellant who is in custody includes a reference to person who is the subject of an order for periodic detention under the Periodic Detention of Prisoners Act 1981 or a home detention order within the meaning of the Home Detention Act 1996.s 127: Ins 1998 No 137, Sch 1 [2]. Am 1999 No 19, Sch 2.17 [4]; 1999 No 39, Sch 4 [17].
128 Effect on appeal or application for leave to appeal of defect in notice or statement of grounds of appeal
(1) An appeal or an application for leave to appeal is not defeated merely because of a defect, whether of substance or form, in the notice of appeal or statement of grounds of appeal or application.(2) The District Court hearing the appeal or application may amend any such notice or statement or application if it is of the opinion that the notice or statement or application is capable of amendment and ought to be amended.(3) The amendment may be made subject to such conditions as to adjournment as the District Court thinks just.ss 128–131: Ins 1998 No 137, Sch 1 [2].
129 Powers of District Court in determining applications for leave to appeal
(1) The District Court may, after hearing an application for leave to appeal, dismiss the application or grant the application.(2) The District Court must not grant an application for leave to appeal under section 124 (relating to matters where notice of appeal or an application for leave to appeal was not given in time) unless it is of the opinion that it is in the interests of justice to grant the application.(3) The District Court may make such order as to costs to be paid by the appellant as it thinks just if it dismisses an application for leave to appeal.ss 128–131: Ins 1998 No 137, Sch 1 [2].
130 Hearing of appeal after leave to appeal granted
After granting an application for leave to appeal, the District Court may immediately proceed to hear and determine the appeal or may adjourn the appeal.ss 128–131: Ins 1998 No 137, Sch 1 [2].
131 When order dismissing application for leave to appeal may be vacated
The District Court may by order vacate an order dismissing an application for leave to appeal because the applicant failed to appear, and any other order made as a consequence, if an application for vacation of the order is made within 12 months of the dismissal and the District Court is of the opinion that it is in the interests of justice to grant the application.ss 128–131: Ins 1998 No 137, Sch 1 [2].
131A Appeals against sentence to be by way of rehearing of evidence
An appeal against the severity of a sentence is to be by way of a rehearing of the evidence heard before the Magistrate who imposed the sentence, and new evidence or evidence in addition to, or in substitution for, the evidence given in relation to the sentence appealed against may be given on appeal.s 131A: Ins 1999 No 39, Sch 4 [18].
132 Appeals against conviction or order to be by way of rehearing on the transcripts of evidence
(1) An appeal against any conviction or order made by a Magistrate is to be by way of rehearing on the transcripts of evidence heard before the Magistrate, except as provided by section 133.(2) For the purposes of subsection (1), a transcript is taken to be a correct transcript of a true record of evidence if the transcript is certified in the manner prescribed by the regulations.(3) On such an appeal, new evidence may be given only with the leave of the District Court, if the Court is of the opinion that it is in the interests of justice that the evidence be given.(4) A clerk of a Local Court must, at the request of an appellant or respondent, provide one copy of the transcript of evidence of any witness free of charge to the appellant or respondent.(5) A registrar is also required, at the request of an appellant or respondent, to provide one copy of the transcript of evidence of any witness free of charge to the appellant or respondent, if the registrar has been provided with a copy of the transcript by a clerk of the Local Court.Note—On receiving notice of an appeal the clerk of a Local Court is required to transmit the relevant papers to a registrar for keeping in the records of the District Court (see section 126 (4)).s 132: Ins 1998 No 137, Sch 1 [2]. Am 1999 No 39, Sch 4 [19]–[21].
133 Circumstances when evidence to be given in person
(1) The District Court may direct that a person attend to give evidence in person in appeal proceedings referred to in section 132 if:(a) in the case of a witness in proceedings that relate to an offence involving violence who is the alleged victim of the offence—the Court is of the opinion that there are special reasons why, in the interests of justice, the witness should attend to give evidence, or(b) in any other case—the Court is of the opinion that there are substantial reasons why, in the interests of justice, the witness should attend to give evidence.(2) An appellant or a respondent may apply for a direction under this section only if he or she has served on the other party, within such period as the District Court may direct, a notice that the applicant wishes a specified witness to attend at the appeal proceedings.(3) A direction may be withdrawn only on the application, or with the consent, of the applicant.(4) If the District Court refuses to give a direction, the Court must give reasons for the refusal.(5) The regulations may make provision for or with respect to the determination of special reasons under subsection (1) (a) and the determination of substantial reasons under subsection (1) (b).(6) In particular and without otherwise limiting subsection (5), the District Court is, in determining whether special or substantial reasons exist, to have regard to whether or not the appellant was legally represented for the whole or part of the proceedings heard before the Magistrate.s 133: Ins 1998 No 137, Sch 1 [2]. Am 1999 No 39, Sch 4 [22].
133A Powers of District Court in determining appeals
(1) The District Court may, after hearing an appeal, determine the appeal by dismissing the appeal or by doing any one or more of the following:(a) confirming, quashing, setting aside or varying the conviction, order or sentence appealed against,(b) increasing or reducing the sentence appealed against,(c) making such other orders as it thinks just.(2) In determining an appeal, the District Court may exercise any function that the Magistrate who made the conviction or order might have exercised.(3) The District Court may make such order as to costs to be paid by either party (including the Crown) as it thinks just, except as provided by section 133R.ss 133A–133C: Ins 1998 No 137, Sch 1 [2].
133B When order dismissing appeal may be vacated
(1) The District Court may by order vacate an order dismissing an appeal because the appellant failed to appear, and any other order made as a consequence, if:(a) within 12 months after the dismissal the appellant shows to the District Court sufficient cause for the failure to appear, and(b) the District Court is of the opinion that it is in the interests of justice to do so.(2) The order may be made subject to conditions specified in the order.(3) If an order is made, section 127 applies to any sentence subject to the appeal.(4) No action lies against any person for anything done by the person in good faith, and without notice of the order, to enforce the conviction, order or sentence the subject of the dismissed appeal.ss 133A–133C: Ins 1998 No 137, Sch 1 [2].
133C Notice of dismissal of application for leave to appeal or appeal
When an application for leave to appeal, or an appeal, is dismissed, because the appellant fails to appear, the registrar for the proclaimed place at which the application or appeal is dismissed must notify the appellant of:(a) the order of the District Court dismissing the application or appeal, and(b) the appellant’s right under this Division to seek to have the order vacated within 12 months from the dismissal.ss 133A–133C: Ins 1998 No 137, Sch 1 [2].
133D Appeals relating to certain traffic offences committed by children
(1) An appeal may be made in respect of a traffic offence committed by a child:(a) by the child concerned, or(b) if the child is under 18 years, on the child’s behalf and in the child’s name, by a person responsible for the child or the child’s counsel, or(c) if the child is in the care or custody of the Minister administering the Children (Care and Protection) Act 1987 or the Director-General of the Department of Community Services, by that Minister or the Director-General on behalf of the child.(2) In this section:child means a person who was under 18 years when the traffic offence was committed and under 21 years when summary proceedings for the offence were commenced.person responsible for a child has the same meaning as in the Children (Care and Protection) Act 1987.traffic offence means an offence arising under a provision of:(a) the road transport legislation within the meaning of the Road Transport (General) Act 1999, or(b) the Roads Act 1993, or(c) the Motor Vehicles (Third Party Insurance) Act 1942, or(d) the Recreation Vehicles Act 1983,in respect of the use, standing or parking of a motor vehicle within the meaning of that provision.(e) any other Act prescribed for the purposes of this definition,s 133D: Ins 1998 No 137, Sch 1 [2]. Am 1999 No 19, Sch 2.17 [5].
Division 3 Appeals by Crown
pt 5A, div 3 (ss 133E–133I): Ins 1998 No 137, Sch 1 [2].
133E Meaning of “appeal”
In this Division:appeal means an appeal under this Division.pt 5A, div 3 (ss 133E–133I): Ins 1998 No 137, Sch 1 [2].
133F When the Crown may appeal against a sentence
(1) The Director of Public Prosecutions may appeal under this Division to the District Court against any sentence imposed by a Magistrate in proceedings of a kind set out in subsection (2).(2) An appeal may be made in any of the following proceedings:(a) proceedings for an indictable offence dealt with summarily by a Magistrate,(b) proceedings for a prescribed summary offence (as defined in the Director of Public Prosecutions Act 1986),(c) proceedings for any other summary offence if instituted or carried on by the Director of Public Prosecutions.pt 5A, div 3 (ss 133E–133I): Ins 1998 No 137, Sch 1 [2].
133G How appeal to be made
(1) An appeal is to be made by lodging a written notice of appeal not later than 28 days after the sentence is imposed by the Magistrate.(2) Despite subsection (1), an appeal against a sentence may be lodged later than the required time if the sentence was reduced because the defendant undertook to assist law enforcement agencies (within the meaning of the Criminal Records Act 1991) and the defendant failed wholly or partly to fulfil the undertaking.(3) A notice of appeal may be lodged with the clerk of any Local Court.(4) A clerk of a Local Court with whom a notice of appeal or an application is lodged under this section must immediately forward a copy of it to:(a) any other party to the proceedings concerned, and(b) the clerk of the Local Court where the sentence was imposed, if the person is not that clerk.(5) Nothing in this section prevents a clerk of a Local Court with whom a notice of appeal is lodged under this section from giving a copy of the notice of appeal to any other interested person.(6) The clerk of the Local Court must, as soon as practicable after receiving a notice of appeal under this Division, transmit the relevant papers, including a copy of any relevant order or conviction made by the Magistrate, to a registrar for keeping in the records of the District Court.pt 5A, div 3 (ss 133E–133I): Ins 1998 No 137, Sch 1 [2].
133H Evidence in appeals
On an appeal, new evidence may be given with the leave of the District Court, but may be given by the prosecution only in exceptional circumstances.pt 5A, div 3 (ss 133E–133I): Ins 1998 No 137, Sch 1 [2].
133I Powers of District Court in determining appeals
(1) The District Court may, after hearing an appeal, determine the appeal by dismissing the appeal or by doing any one or more of the following:(a) confirming, quashing, setting aside, varying, increasing or reducing the sentence appealed against,(b) imposing such sentence as may seem proper to the District Court.(2) In determining an appeal, the District Court may exercise any function that the Magistrate who imposed the sentence might have exercised.(3) The District Court may make such order as to costs to be paid by either party (including the Crown) as it thinks just, except as provided by section 133R.pt 5A, div 3 (ss 133E–133I): Ins 1998 No 137, Sch 1 [2].
Division 4 General provisions relating to appeals and applications for leave to appeal
pt 5A, div 4: Ins 1998 No 137, Sch 1 [2].
133J Definitions
In this Division:appeal means an appeal under this Part.application for leave to appeal means an application for leave to appeal under this Part.ss 133J–133O: Ins 1998 No 137, Sch 1 [2].
133K General powers of District Court
Without limiting any powers of the District Court under the District Court Act 1973, the District Court may do any one or more of the following:(a) specify the proclaimed place at which the hearing of an appeal or application for leave to appeal is to be heard or continued,(b) specify the sitting at which the hearing of an appeal or application for leave to appeal is to be heard or continued,(c) adjourn the hearing of an appeal or application for leave to appeal.ss 133J–133O: Ins 1998 No 137, Sch 1 [2].
133L Rules for procedure for appeals and applications
(1) The criminal procedure rules of the District Court under the District Court Act 1973 may make provision for or with respect to the procedure to be followed as regards appeals or applications for leave to appeal.(2) Without limiting subsection (1), the rules may make provision for or with respect to the following:(a) the place at which an appeal or application is to be heard,(b) when an appeal or application must be heard,(c) notice of appeals, applications and hearings,(d) notice of dismissal of appeals or applications,(e) service of process and other documents.ss 133J–133O: Ins 1998 No 137, Sch 1 [2].
133M Appeal or application may be heard when notice not given as required
The District Court may proceed to hear and determine or otherwise dispose of an appeal or application for leave to appeal despite any error in, or non-service of, a notice of appeal or other notice if it is satisfied that each party had knowledge of the time and place fixed for the hearing and was not prejudiced by the error or non-service.ss 133J–133O: Ins 1998 No 137, Sch 1 [2].
133N Errors in form or law not of themselves to enable appeal success
(1) The District Court is not to quash or set aside a conviction, order or sentence on an appeal merely because of:(a) an omission or mistake in the form of the conviction or order, orif it appears to the District Court that there were sufficient grounds before the Magistrate to have authorised a conviction, order or sentence free from the omission, mistake or error.(b) any error in law in the order or sentence,(2) In any such case, the District Court may:(a) amend the conviction or order and determine the appeal as if the omission, mistake or error did not exist, or(b) remit the case to the Magistrate to make the conviction or order, or impose the sentence, authorised by law and to amend the conviction, order or sentence accordingly.(3) If the District Court remits a matter to a Magistrate under this section and the Magistrate who made the original conviction or order or imposed the original sentence has ceased to hold office as a Magistrate or is for any other reason unable to continue to hear and determine the remitted matter, the matter is to be dealt with by another Magistrate nominated by the Chief Magistrate.ss 133J–133O: Ins 1998 No 137, Sch 1 [2].
133O Withdrawal of appeals and applications
(1) An appeal or application for leave to appeal may at any stage be withdrawn by the appellant with the leave of the District Court.(2) In giving leave for an appeal or application for leave to appeal by an appellant to be withdrawn, the District Court may make such orders as are necessary to place the appellant as nearly as possible in the same position as if the appeal or application had not been made.(3) Any order made by the District Court in respect of an appeal or application that is withdrawn is taken to be an order made by the Magistrate that made the conviction or order or imposed the sentence that gave rise to the appeal.ss 133J–133O: Ins 1998 No 137, Sch 1 [2].
133P Court may confirm conviction, order or sentence with effect from an earlier day
(1) The District Court may order that a conviction, order or sentence, confirmed or varied by it on appeal, or any part of it:(a) is to take effect on and from a day specified in the order, orbeing the day the order is made or an earlier day.(b) in the case of a sentence that has been served in part, is to recommence on and from a day specified in the order,(2) The order has effect even though a stay of execution may have been in force in respect of the sentence appealed against.(3) Any time spent in custody by an appellant pending the determination of an appeal counts as part of any sentence imposed on the appellant in relation to the matter on appeal.(4) Despite subsections (1) and (2), any period during which a stay of execution was in force in respect of a conviction under the road transport legislation within the meaning of the Road Transport (General) Act 1999 is not to be taken into account when calculating the length of a period of disqualification from holding a driver licence resulting from the conviction.s 133P: Ins 1998 No 137, Sch 1 [2]. Am 1999 No 19, Sch 2.17 [6].
133Q Effect on recognizances of confirmation of conviction, order or sentence
(1) If the District Court confirms a conviction, order or sentence on an appeal, any recognizance that the appellant was required to enter into by the original conviction or order, and any sureties, have effect according to the terms of the recognizances, except to the extent to which the District Court otherwise directs.(2) The recognizance has effect even though a stay of execution may have been in force in respect of the conviction, order or sentence appealed against.ss 133Q–133V: Ins 1998 No 137, Sch 1 [2].
133R Limit on circumstances when costs may be awarded against a public informant
(1) Costs are not to be awarded in favour of an appellant whose conviction is quashed or set aside unless the District Court is satisfied as to any of the following:(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the informant in an improper manner,(c) that the prosecution unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought,(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the informant, it is just and reasonable to award costs.(2) This section does not apply to the awarding of costs against a respondent acting in a private capacity.(3) For the purposes of subsection (2), an officer of the Royal Society for the Prevention of Cruelty to Animals, or of any other charitable organisation under the Prevention of Cruelty to Animals Act 1979, is taken not to be acting in a private capacity if the officer acts as the respondent in any appeal arising from proceedings under that Act.ss 133Q–133V: Ins 1998 No 137, Sch 1 [2].
133S District Court’s powers on appeals relating to sentences and orders
(1) The District Court may not vary, increase or reduce a sentence so that the sentence as so varied, increased or reduced could not have been imposed by the Magistrate concerned.(2) The District Court may not make an order or impose a sentence that could not have been made or imposed by the Magistrate concerned.(3) Any sentence varied, increased or reduced or imposed by the District Court, or any order made by the District Court under this Part, has the same effect and may be enforced in the same manner as if it were made by a Magistrate.ss 133Q–133V: Ins 1998 No 137, Sch 1 [2].
133T Payment of money
If the District Court orders an appellant or a respondent to pay costs under this Part, or makes any other order for the payment of money under this Part, the District Court must:(a) direct that the costs or other amount be paid to the clerk of the Local Court where the matter the subject of the appeal or application for leave to appeal concerned was originally heard, and(b) state a time within which the costs or other amount must be paid.ss 133Q–133V: Ins 1998 No 137, Sch 1 [2].
133U Evidence of quashing of conviction or order
(1) If a conviction or order is quashed or set aside on an appeal, a memorandum to that effect must be endorsed forthwith on the conviction or order by the Registrar of the District Court for the nearest proclaimed place or by another proper officer.(2) If a certificate of the conviction or order is given at any time, a copy of the memorandum is sufficient evidence that the conviction or order has been quashed or set aside.ss 133Q–133V: Ins 1998 No 137, Sch 1 [2].
133V Limits on appeals
(1) No application to quash or vary any conviction, order or sentence of a Magistrate that could be the subject of an appeal under this Part may be made to the District Court (whether in its civil or criminal jurisdiction) except by way of appeal as provided by this Part.(2) No appeal may be made to the District Court under this Part from a decision of the District Court under this Part.(3) There is no appeal to the District Court under this Part in relation to proceedings for an environmental offence in respect of which an appeal may be made under Part 5B.(4) There is no appeal to the District Court under this Part if there is an appeal to the Supreme Court as referred to in section 113.ss 133Q–133V: Ins 1998 No 137, Sch 1 [2].
Part 5B Appeals to Land and Environment Court
Division 1 Preliminary
pt 5B, div 1: Ins 1998 No 137, Sch 1 [2].
133W Definitions
In this Part:appellant means a person who appeals or applies for leave to appeal under this Part.environmental offence means an offence against the environment protection legislation as defined in the Protection of the Environment Administration Act 1991.informant includes a complainant, the Director of Public Prosecutions and any other person responsible for the conduct of a prosecution.Judge means a Judge of the Land and Environment Court.registrar means the registrar of the Land and Environment Court.s 133W: Ins 1998 No 137, Sch 1 [2].
133X Application of Part generally
(1) In this Part, a reference to a sentence includes a reference to:(a) a fine or sentence imposed by a Magistrate, and(b) any order made by a Magistrate:(i) on the conviction or instead of a conviction of a person, or(ii) as punishment for any act or omission.(2) Subsection (1) (b) includes but is not limited to the following orders and decisions:(a) an order for compensation or forfeiture,(b) an order to pay any sum of money (whether for payment by any person of costs of a party or witness or for any other purpose),(c) an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 with respect to a person dealt with for an offence,(d) an order or a decision under section 9 of the Crimes (Sentencing Procedure) Act 1999 with respect to a person dealt with for an offence,(e) a decision by a Magistrate exercising the jurisdiction of a Local Court under the Fines Act 1996 not to annul a fine enforcement order,(f) any other order or decision of any kind whatever made by a Magistrate with respect to a person dealt with for an offence (whether or not the person has been convicted) deferring passing sentence on the person and releasing the person subject to conditions or without conditions,(g) a decision within the meaning of section 42 (3) of the Children (Criminal Proceedings) Act 1987 made by a Magistrate exercising the jurisdiction of the Children’s Court in respect of an offence committed by a person.(3) This Part, to the extent to which it is not inconsistent with any other Act, applies to any order of a Magistrate made under another Act against which an appeal is provided under the other Act to the Land and Environment Court.(4) The provisions of this Part do not affect the provisions of the Home Detention Act 1996.(5) This Part does not apply to the exercise of ministerial functions by a Magistrate, except in relation to committal proceedings (as provided for by Division 3A).s 133X: Ins 1998 No 137, Sch 1 [2]. Am 1999 No 39, Sch 4 [23]; 1999 No 94, Sch 4.35 [27] [28].
133Y Application of Part to Justices
In this Part, a reference to a Magistrate includes a reference to any person (not being a Magistrate) who exercises the functions, powers or jurisdiction of a Justice or Justices conferred by this Act.s 133Y: Ins 1998 No 137, Sch 1 [2].
Division 2 Appeals by defendants and other persons
pt 5B, div 2: Ins 1998 No 137, Sch 1 [2].
133Z Definitions
In this Division:appeal means an appeal under this Division.application for leave to appeal means an application for leave to appeal under this Division.s 133Z: Ins 1998 No 137, Sch 1 [2].
133AA When an appeal can be made by a defendant or other person
An appeal against any conviction or order made, or sentence imposed, by a Magistrate in proceedings for an environmental offence may be made under this Division to the Land and Environment Court by the person against whom the conviction or order was made or on whom the sentence was imposed.s 133AA: Ins 1998 No 137, Sch 1 [2].
133AB Matters in which no appeal can be made
(1) Interlocutory orders An appeal may not be made against any interlocutory order made by a Magistrate.(2) Dismissal An appeal may not be made against the dismissal of an information by a Magistrate.(3) Costs awarded against informants An appeal may not be made against a decision of a Magistrate not to make an order for costs against an informant.(4) Appeals under Division 3A This section does not limit the making of an appeal under Division 3A.s 133AB: Ins 1998 No 137, Sch 1 [2]. Am 1999 No 39, Sch 4 [24].
133AC How appeal to be made
(1) An appeal is to be made by lodging a written notice of appeal not later than 28 days after the conviction or order is made, or the sentence is imposed, by the Magistrate.(2) A notice of appeal must state the intention to appeal and the general grounds of appeal.(3) If an application is made to a Local Court under Part 4A, the time for lodging an appeal does not start to run until that application is finally disposed of.Note—Section 133AG sets out the manner in which an appeal is to be lodged.ss 133AC–133AG: Ins 1998 No 137, Sch 1 [2].
133AD Matters in which an appeal can be made only with the leave of the Land and Environment Court
(1) An appeal may be made against a conviction entered after a guilty plea or in the absence of the defendant only with the leave of the Land and Environment Court.(2) An appeal may be made by a person who has not exhausted all rights of appeal under Part 4A only with the leave of the Land and Environment Court.(3) An application for leave to appeal is to be made by lodging a written application and a notice of appeal complying with section 133AC not later than 28 days after the conviction or order is made, or the sentence is imposed, by the Magistrate.Note—Section 133AG sets out the manner in which an appeal is to be lodged.(4) If an application is made to a Local Court under Part 4A, the time for lodging an application for leave to appeal does not start to run until the application under Part 4A is finally disposed of.(5) This section does not apply to an appeal against the severity of a sentence.ss 133AC–133AG: Ins 1998 No 137, Sch 1 [2].
133AE Appeal may be made with leave outside time for giving notice of appeal
(1) A person who is entitled to appeal but who does not give notice of appeal or apply for leave to appeal within the time required by section 133AC or 133AD may apply, not later than 3 months after the conviction or order is made, or the sentence is imposed, by the Magistrate, to the Land and Environment Court for leave to appeal against the conviction, order or sentence.(2) An application for leave to appeal is to be made by lodging a written application, stating the reasons why the notice or application was not made within the time required, and a notice of appeal complying with section 133AC.ss 133AC–133AG: Ins 1998 No 137, Sch 1 [2].
133AF Time for notices of appeal when more than one conviction or order involved
An appeal, or an application for leave to appeal, against a conviction or order made, or a sentence imposed, on the same day as another conviction, sentence or order involving the same person against which an appeal, or an application for leave to appeal, is made as required by this Division may be heard and determined by the Land and Environment Court even though the firstmentioned appeal or application was not made as required by this Division.ss 133AC–133AG: Ins 1998 No 137, Sch 1 [2].
133AG Lodging notices of appeal and applications for leave to appeal
(1) A notice of appeal or an application for leave to appeal may be lodged with the clerk of any Local Court or the person in charge of the place at which the appellant is then held in custody.(2) A person with whom a notice of appeal or an application is lodged under this section must immediately forward a copy of it to:(a) the informant or any other party to the proceedings concerned, and(b) the clerk of the Local Court where the conviction or order was made or the sentence imposed, if the person is not that clerk.(3) Nothing in this section prevents a person with whom a notice of appeal is lodged under this section from giving a copy of the notice of appeal or application to any other interested person.(4) The clerk of a Local Court must, as soon as practicable after receiving a notice of appeal or an application for leave to appeal under this Division, transmit the papers, including a copy of any relevant order or conviction made by the Magistrate, to the registrar for keeping in the records of the Land and Environment Court.ss 133AC–133AG: Ins 1998 No 137, Sch 1 [2].
133AH Stay of execution of conviction, order or sentence pending appeal
(1) The execution of a sentence imposed as a consequence of a conviction, or of any other order, is stayed when a notice of appeal is given in accordance with this Division.(2) Subsection (1) does not apply to an appellant who is in custody when the appeal is made unless and until the appellant enters into a bail undertaking in accordance with the Bail Act 1978, or bail is dispensed with.(3) The stay of execution continues until the appeal is finally determined, subject to any order or direction of the District Court and section 133BC (3).(4) Despite subsection (1), any period during which the stay is in force is not to be taken into account when calculating the length of a period of disqualification from holding a driver licence resulting from a conviction under the road transport legislation within the meaning of the Road Transport (General) Act 1999.(5) An application for leave to appeal does not result in a stay of execution under this section.(6) In this section, a reference to an appellant who is in custody includes a reference to person who is the subject of an order for periodic detention under the Periodic Detention of Prisoners Act 1981 or a home detention order within the meaning of the Home Detention Act 1996.s 133AH: Ins 1998 No 137, Sch 1 [2]. Am 1999 No 19, Sch 2.17 [7]; 1999 No 39, Sch 4 [25].
133AI Effect on appeal or application for leave to appeal of defect in notice or statement of grounds of appeal
(1) An appeal or an application for leave to appeal is not defeated merely because of a defect, whether of substance or form, in the notice of appeal or statement of grounds of appeal or application.(2) The Land and Environment Court may amend any such notice or statement or application if it is of the opinion that the notice or statement or application is capable of amendment and ought to be amended.(3) The amendment may be made subject to such conditions as to adjournment as the Land and Environment Court thinks just.ss 133AI–133AL: Ins 1998 No 137, Sch 1 [2].
133AJ Powers of Land and Environment Court in determining applications for leave to appeal
(1) The Land and Environment Court may, after hearing an application for leave to appeal, dismiss the application or grant the application.(2) The Land and Environment Court must not grant an application for leave to appeal under section 133AE (relating to matters where notice of appeal or an application for leave to appeal was not given in time) unless it is of the opinion that it is in the interests of justice to grant the application.(3) The Land and Environment Court may make such order as to costs to be paid by the appellant as it thinks just if it dismisses an application for leave to appeal.ss 133AI–133AL: Ins 1998 No 137, Sch 1 [2].
133AK Hearing of appeal after leave to appeal granted
After granting an application for leave to appeal, the Land and Environment Court may immediately proceed to hear and determine the appeal or may adjourn the appeal.ss 133AI–133AL: Ins 1998 No 137, Sch 1 [2].
133AL When order dismissing application for leave to appeal may be vacated
The Land and Environment Court may by order vacate an order dismissing an application for leave to appeal because the applicant failed to appear, and any other order made as a consequence, if an application for vacation of the order is made within 12 months of the dismissal and the Land and Environment Court is of the opinion that it is in the interests of justice to grant the application.ss 133AI–133AL: Ins 1998 No 137, Sch 1 [2].
133AM Appeal to be by way of rehearing
(1) An appeal is to be by way of rehearing on the transcripts of evidence heard before the Magistrate who made the conviction or order or imposed the sentence appealed against, except as provided by section 133AN.(2) For the purposes of subsection (1), a transcript is taken to be a correct transcript of a true record of evidence if the transcript is certified in the manner prescribed by the regulations.(3) On an appeal, new evidence may be given only with the leave of the Land and Environment Court, if the Court is of the opinion that it is in the interests of justice that the evidence be given.(4) A clerk of a Local Court must, at the request of an appellant or respondent, provide one copy of the transcript of evidence of any witness free of charge to the appellant or respondent.(5) The registrar is also required, at the request of an appellant or respondent, to provide one copy of the transcript of evidence of any witness free of charge to the appellant or respondent, if the registrar has been provided with a copy of the transcript by a clerk of the Local Court.Note—On receiving notice of an appeal the clerk of a Local Court is required to transmit the relevant papers to a registrar for keeping in the records of the Land and Environment Court (see section 133AG (4)).s 133AM: Ins 1998 No 137, Sch 1 [2]. Am 1999 No 39, Sch 4 [26].
133AN Circumstances when evidence to be given in person
(1) The Land and Environment Court may direct that a person attend to give evidence in person in appeal proceedings if the Court is of the opinion that there are reasonable grounds for deciding that, in the interests of justice, the witness should attend to give evidence.(2) An appellant or a respondent may apply for a direction under this section only if he or she has served on the other party, within such period as the Land and Environment Court may direct, a notice that the applicant wishes a specified witness to attend at the appeal proceedings.(3) A direction may be withdrawn only on the application, or with the consent, of the applicant.(4) If the Land and Environment Court refuses to give a direction, the Court must give reasons for the refusal.(5) The regulations may make provision for or with respect to the determination of reasonable grounds under subsection (1).(6) In particular and without otherwise limiting subsection (5), the Land and Environment Court is, in determining whether reasonable grounds exist, to have regard to whether or not the appellant was legally represented for the whole or part of the proceedings heard before the Magistrate.ss 133AN–133AQ: Ins 1998 No 137, Sch 1 [2].
133AO Powers of Land and Environment Court in determining appeals
(1) The Land and Environment Court may, after hearing an appeal, determine the appeal by dismissing the appeal or by doing any one or more of the following:(a) confirming, quashing, setting aside or varying the conviction, order or sentence appealed against,(b) increasing or reducing the sentence appealed against,(c) making such other orders as it thinks just.(2) In determining an appeal, the Land and Environment Court may exercise any function that the Magistrate who made the conviction or order might have exercised.(3) The Land and Environment Court may make such order as to costs to be paid by either party (including the Crown) as it thinks just, except as provided by section 133BE.ss 133AN–133AQ: Ins 1998 No 137, Sch 1 [2].
133AP When order dismissing appeal may be vacated
(1) The Land and Environment Court may by order vacate an order dismissing an appeal because the appellant failed to appear, and any other order made as a consequence, if:(a) within 12 months after the dismissal the appellant shows to the Land and Environment Court sufficient cause for the failure to appear, and(b) the Land and Environment Court is of the opinion that it is in the interests of justice to do so.(2) The order may be made subject to conditions specified in the order.(3) If an order is made, section 133AH applies to any order or sentence subject to the appeal.(4) No action lies against any person for anything done by the person in good faith, and without notice of the order, to enforce the conviction, order or sentence the subject of the dismissed appeal.ss 133AN–133AQ: Ins 1998 No 137, Sch 1 [2].
133AQ Notice of dismissal of application for leave to appeal or appeal
When an application for leave to appeal, or an appeal, is dismissed because the appellant fails to appear, the registrar must notify the appellant of:(a) the order of the Land and Environment Court dismissing the application or appeal, and(b) the appellant’s right under this Division to seek to have the order vacated within 12 months from the dismissal.ss 133AN–133AQ: Ins 1998 No 137, Sch 1 [2].
Division 3 Appeals by Crown against sentence
pt 5B, div 3, hdg: Ins 1998 No 137, Sch 1 [2]. Subst 1999 No 39, Sch 4 [27].
pt 5B, div 3: Ins 1998 No 137, Sch 1 [2].
133AR Meaning of “appeal”
In this Division:appeal means an appeal under this Division.s 133AR: Ins 1998 No 137, Sch 1 [2].
133AS When the Crown may appeal against a sentence
(1) The Director of Public Prosecutions may appeal under this Division to the Land and Environment Court against any sentence imposed by a Magistrate in proceedings for an environmental offence if those proceedings have been instituted or carried on by the Director of Public Prosecutions.(2) The Environment Protection Authority may appeal under this Division to the Land and Environment Court against any sentence imposed by a Magistrate in proceedings for an environmental offence if those proceedings have been instituted or carried on by the Environment Protection Authority.s 133AS: Ins 1998 No 137, Sch 1 [2].
133AT How appeal is made
(1) An appeal is to be made by lodging a written notice of appeal not later than 28 days after the sentence is imposed by the Magistrate.(2) Despite subsection (1), an appeal against a sentence may be lodged later than the required time if the sentence was reduced because the defendant undertook to assist law enforcement agencies (within the meaning of the Criminal Records Act 1991) and the defendant failed wholly or partly to fulfil the undertaking.(3) A notice of appeal may be lodged with the clerk of any Local Court.(4) A clerk of a Local Court with whom a notice of appeal is lodged under this section must immediately forward a copy of it to:(a) any other party to the proceedings concerned, and(b) the clerk of the Local Court where the sentence was imposed, if the person is not that clerk.(5) Nothing in this section prevents a clerk of a Local Court with whom a notice of appeal is lodged under this section from giving a copy of the notice of appeal to any other interested person.(6) The clerk of the Local Court must, as soon as practicable after receiving a notice of appeal under this Division, transmit the relevant papers, including a copy of any relevant order or conviction made by the Magistrate, to a registrar for keeping in the records of the Land and Environment Court.s 133AT: Ins 1998 No 137, Sch 1 [2]. Am 1999 No 39, Sch 4 [28].
133AU Evidence in appeals
On an appeal, new evidence may be given with the leave of the Land and Environment Court, but may be given by the prosecution only in exceptional circumstances.s 133AU: Ins 1998 No 137, Sch 1 [2].
133AV Powers of Land and Environment Court in determining appeals
(1) The Land and Environment Court may, after hearing an appeal, determine the appeal by dismissing the appeal or by doing any one or more of the following:(a) confirming, quashing, setting aside, varying, increasing or reducing the sentence appealed against,(b) imposing such sentence as may seem proper to the Court.(2) In determining an appeal, the Land and Environment Court may exercise any function that the Magistrate who imposed the sentence might have exercised.(3) The Land and Environment Court may make such order as to costs to be paid by either party (including the Crown) as to it seems just, except as provided by section 133BE.s 133AV: Ins 1998 No 137, Sch 1 [2].
Division 3A Other appeals to Land and Environment Court
pt 5B, div 3A (ss 133AVA–133AVC): Ins 1999 No 39, Sch 4 [29].
133AVA Other appeals
A person may appeal under this Division to the Land and Environment Court as provided for by section 133AVB.pt 5B, div 3A (ss 133AVA–133AVC): Ins 1999 No 39, Sch 4 [29].
133AVB Land and Environment Court to have same jurisdiction as Supreme Court in relation to appeals on environmental offences
(1) The Land and Environment Court has the same jurisdiction and powers as the Supreme Court has under Part 5 to hear and dispose of proceedings on appeal against any conviction or order made, or sentence imposed, by a Magistrate in summary proceedings for an environmental offence.(2) Accordingly, an appeal may be made by a person to the Land and Environment Court against any conviction or order made, or sentence imposed, by a Magistrate in summary proceedings for an environmental offence on any ground that the person would be able to appeal the conviction, order or sentence under section 104.Note—Section 104 allows appeals to be made on a question of law against interlocutory orders and orders in relation to committal proceedings (among other things).(3) The provisions of Division 2 of Part 5 (section 104A excepted) apply in respect of appeals made to the Land and Environment Court under this Division, in the same way as they apply to appeals made to the Supreme Court under that Division, with any necessary modifications.(4) For the purpose of applying those provisions, references to the Supreme Court are to be read as references to the Land and Environment Court.pt 5B, div 3A (ss 133AVA–133AVC): Ins 1999 No 39, Sch 4 [29].
133AVC How appeal to be made and conducted
(1) An appeal under this Division is to be made and conducted in accordance with the rules of the Land and Environment Court.(2) An appeal is to be made within such period after the date that the relevant conviction or order is made, or the sentence is imposed, as may be prescribed by the rules of the Land and Environment Court.pt 5B, div 3A (ss 133AVA–133AVC): Ins 1999 No 39, Sch 4 [29].
Division 4 General provisions relating to appeals and applications for leave to appeal
pt 5B, div 4: Ins 1998 No 137, Sch 1 [2].
133AW Definitions
In this Division:appeal means an appeal under this Part.application for leave to appeal means an application for leave to appeal under this Part.ss 133AW–133BH: Ins 1998 No 137, Sch 1 [2].
133AX General powers of Land and Environment Court
Without limiting any powers of the Land and Environment Court under the Land and Environment Court Act 1979, the Land and Environment Court may do any one or more of the following:(a) specify the sitting at which the hearing of an appeal or application for leave to appeal is to be heard or continued,(b) adjourn the hearing of an appeal or application for leave to appeal.ss 133AW–133BH: Ins 1998 No 137, Sch 1 [2].
133AY Rules for procedures for appeals and applications
(1) The rules of the Land and Environment Court under the Land and Environment Court Act 1979 may make provision for or with respect to the procedure to be followed as regards appeals or applications for leave to appeal.(2) Without limiting subsection (1), the rules may make provision for or with respect to the following:(a) when an appeal or application must be heard,(b) notice of appeals, applications and hearings,(c) notice of dismissal of appeals or applications,(d) service of process and other documents.ss 133AW–133BH: Ins 1998 No 137, Sch 1 [2].
133AZ Appeal or application may be heard when notice not given as required
The Land and Environment Court may proceed to hear and determine or otherwise dispose of an appeal or application for leave to appeal despite any error in, or non-service of, a notice of appeal or other notice if it is satisfied that each party had knowledge of the time and place fixed for the hearing and was not prejudiced by the error or non-service.ss 133AW–133BH: Ins 1998 No 137, Sch 1 [2].
133BA Errors in form or law not of themselves to enable appeal success
(1) The Land and Environment Court is not to quash or set aside a conviction, order or sentence on an appeal merely because of:(a) an omission or mistake in the form of the conviction or order, orif it appears to the Land and Environment Court that there were sufficient grounds before the Magistrate to have authorised a conviction, order or sentence free from the omission, mistake or error.(b) any error in law in the order or sentence,(2) In any such case, the Land and Environment Court may:(a) amend the conviction or order and determine the appeal as if the omission, mistake or error did not exist, or(b) remit the case to the Magistrate to make the conviction or order, or impose the sentence, authorised by law and to amend the conviction, order or sentence accordingly.(3) If the Land and Environment Court remits a matter to a Magistrate under this section and the Magistrate who made the original conviction or order or imposed the original sentence has ceased to hold office as a Magistrate or is for any other reason unable to continue to hear and determine the remitted matter, the matter is to be dealt with by another Magistrate nominated by the Chief Magistrate.ss 133AW–133BH: Ins 1998 No 137, Sch 1 [2].
133BB Withdrawal of appeals and applications
(1) An appeal or application for leave to appeal may at any stage be withdrawn by the appellant with the leave of the Land and Environment Court.(2) In giving leave for an appeal or application for leave to appeal by an appellant to be withdrawn, the Land and Environment Court may make such orders as are necessary to place the appellant as nearly as possible in the same position as if the appeal or application had not been made.(3) Any order made by the Land and Environment Court in respect of an appeal or application that is withdrawn is taken to be an order made by the Magistrate who made the conviction or order or imposed the sentence that gave rise to the appeal.ss 133AW–133BH: Ins 1998 No 137, Sch 1 [2].
133BC Court may confirm conviction, order or sentence with effect from an earlier day
(1) The Land and Environment Court may order that a conviction, order or sentence, confirmed or varied by it on appeal, or any part of it:(a) is to take effect on and from a day specified in the order, orbeing the day the order is made or an earlier day.(b) in the case of a sentence that has been served in part, is to recommence on and from a day specified in the order,(2) The order has effect even though a stay of execution may have been in force in respect of the sentence appealed against.(3) Any time spent in custody by an appellant pending the determination of an appeal counts as part of any sentence imposed on the appellant in relation to the matter on appeal.ss 133AW–133BH: Ins 1998 No 137, Sch 1 [2].
133BD Effect on recognizances of confirmation of conviction, order or sentence
(1) If the Land and Environment Court confirms a conviction, order or sentence on an appeal, any recognizance that the appellant was required to enter into by the original conviction, order or sentence and any sureties, have effect according to the terms of the recognizances, except to the extent to which the Land and Environment Court otherwise directs.(2) The recognizance has effect even though a stay of execution may have been in force in respect of the sentence appealed against.ss 133AW–133BH: Ins 1998 No 137, Sch 1 [2].
133BE Limit on circumstances when costs may be awarded against a public informant
(1) Costs are not to be awarded in favour of an appellant whose conviction is quashed or set aside unless the Land and Environment Court is satisfied as to any of the following:(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the informant in an improper manner,(c) that the prosecution unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought,(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the informant, it is just and reasonable to award costs.(2) This section does not apply to the awarding of costs against a respondent acting in a private capacity.ss 133AW–133BH: Ins 1998 No 137, Sch 1 [2].
133BF Land and Environment Court’s powers on appeals relating to sentences and orders
(1) The Land and Environment Court may not vary, increase or reduce a sentence so that the sentence as varied, increased or reduced could not have been imposed by the Magistrate concerned.(2) The Land and Environment Court may not make an order or impose a sentence that could not have been made or imposed by the Magistrate concerned.(3) Any sentence varied, increased or reduced or imposed by the Land and Environment Court, or any order made by the Land and Environment Court under this Part, has the same effect and may be enforced in the same manner as if it were made by a Magistrate.ss 133AW–133BH: Ins 1998 No 137, Sch 1 [2].
133BG Payment of money
If the Land and Environment Court orders an appellant or a respondent to pay costs under this Part, or makes any other order for the payment of money under this Part, the Land and Environment Court must:(a) direct that the costs or other amount be paid to the clerk of the Local Court where the matter the subject of the appeal or application for leave to appeal concerned was originally heard, and(b) state a time within which the costs or other amount must be paid.ss 133AW–133BH: Ins 1998 No 137, Sch 1 [2].
133BH Evidence of quashing of conviction or order
(1) If a conviction or order is quashed or set aside on an appeal, a memorandum to that effect must be endorsed forthwith on the conviction or order by the Registrar of the Land and Environment Court or by another proper officer.(2) If a certificate of the conviction or order is given at any time, a copy of the memorandum is sufficient evidence that the conviction or order has been quashed or set aside.ss 133AW–133BH: Ins 1998 No 137, Sch 1 [2].
133BI Limits on appeals
(1) No application to quash or vary any conviction, order or sentence of a Magistrate that could be the subject of an appeal under this Part may be made to the Land and Environment Court except by way of appeal as provided by this Part.(2) No appeal may be made to the Land and Environment Court under this Part from a decision of the Land and Environment Court under this Part.(3) There is no appeal to the Land and Environment Court under this Part if there is an appeal to the Supreme Court as referred to in section 113.s 133BI: Ins 1998 No 137, Sch 1 [2]. Am 1999 No 39, Sch 4 [30].
Part 6 Proceedings against Justices
134 (Repealed)
s 134: Subst 1970 No 52, Second Sch. Rep 1998 No 137, Sch 1 [3].
135 Action for act done within jurisdiction
(1) Every action brought against a Justice for an act done by the Justice in the execution of his or her duty as a Justice with respect to a matter within his or her jurisdiction as a Justice shall be an action as for a tort.(2) An action shall not lie against a Justice for any such act referred to in subsection (1) unless the act was done maliciously and without reasonable and probable cause.s 135: Subst 1970 No 52, Second Sch.
136 Action for act done without or in excess of jurisdiction
(1) An action against a Justice for an act done by the Justice in a matter of which by law he or she has not jurisdiction, or in which he or she has exceeded his or her jurisdiction, may be maintained by any person injured by such act or by any act done under any conviction or order made, or any warrant issued by such Justice in such matter, in the same case as such an action might have been maintained before the passing of this Act.(2) In such an action it shall not be necessary to allege that the act was done maliciously and without reasonable and probable cause.(3) No such action shall be brought:(a) for anything done under such conviction or order until after such conviction or order has been quashed upon appeal or upon application to the Supreme Court,(b) for anything done under any warrant issued by the Justice to procure the appearance of such person if such warrant has been followed by a conviction or order in the same matter until after such conviction or order has been quashed on appeal or on application to the Supreme Court,(c) for anything done under any warrant issued by the Justice to procure the appearance of such person if:(i) such warrant has not been followed by a conviction or order in the same matter, or(ii) such warrant was upon an information for an alleged indictable offence and a summons had been issued previously to such warrant and duly served, and such person had not appeared according to the exigency thereof.s 136: Am 1970 No 52, Second Sch.
137 No action maintainable
No action shall be brought against a Justice:(a) for or by reason of the manner in which he or she has exercised his or her discretion in the execution of a discretionary power conferred on the Justice by statute,(b) for anything done under any warrant of commitment on the ground of any defect in the conviction or order on which it was founded if, either before or after the granting of such warrant, such conviction or order has been confirmed upon appeal,(c) by reason of any defect in a conviction or order made by some other Justice or Justices on which he or she has bona fide and without collusion granted a warrant of commitment,(d) by reason of any want of jurisdiction in any other Justice or Justices by whom a conviction or order has been made on which he or she has bona fide and without collusion granted a warrant of commitment.(e) (Repealed)s 137: Am 1970 No 52, Second Sch.
138 When prohibited action brought, proceedings may be set aside
(1) Where an action is brought against a Justice in respect of any matter in respect of which it is by this Act enacted that no action shall be brought, the Court in which such action is brought may, upon the application of the defendant, set aside the proceedings in such action, with or without costs.(2) Where proceedings in the Supreme Court have been commenced under section 112 in respect of any conviction or order of any Justice or Justices and, before or after the commencement of those proceedings, an action is brought in any Court against that Justice or those Justices or any of them, as the case may be, in respect of any proceedings taken under, or matter arising out of, that conviction or order, the Supreme Court may by order stay proceedings in the action pending determination of the proceedings under section 112.(3) Subsection (2) does not restrict the exercise by any Court of any other power of that Court to stay any action brought in that Court.s 138: Subst 1970 No 52, Second Sch.
139 (Repealed)
s 139: Rep 1977 No 19, Sch 1.
140 Where action may be brought
An action against a Justice for anything done by the Justice in the execution of his or her office may be brought in the Supreme Court or in the District Court in its civil jurisdiction, but not in a Local Court:Provided that:(1) no such action shall be brought in the District Court if the Justice objects thereto,(2) if the Justice or his or her attorney or agent within six days after being served with a summons in any such action gives notice in writing to the plaintiff in such action that he or she objects to being sued in the District Court for such cause of action all proceedings afterwards had in the District Court in such action shall be null and void.s 140: Am 1970 No 52, Second Sch; 1982 No 165, Sch 7; 1988 No 99, Sch 2 (9).
141 Tender of amends and payment into Court
(1) (Repealed)(2) After an action against a Justice has been commenced at any time before issue joined, the Justice may pay into Court such sum as he or she thinks fit.(3) If the plaintiff, where money has been so paid into Court, elects to accept the same in satisfaction of his or her damages in the action, the plaintiff may obtain from the Court in which the action is brought an order that such money be paid out of Court to him or her, and that the defendant pay his or her costs when taxed, and thereupon the action shall be determined, and such order shall be a bar to any other action for the same cause.s 141: Am 1970 No 52, Second Sch; 1977 No 19, Sch 1.
142 (Repealed)
s 142: Am 1970 No 52, Second Sch. Rep 1973 No 9, Sch 2.
143 In what cases there shall be a nonsuit or verdict for the defendant
(1) If at the trial of any such action the plaintiff does not prove:(a) that notice of action was given as hereinbefore provided, or(b) that the action was brought within the time hereinbefore limited in that behalf, or(c) the cause of action stated in his or her notice of action, orthe plaintiff shall be nonsuit, or the jury shall return a verdict for the defendant.(d) that the cause of action arose within the jurisdiction of the Court,(2) If at the trial of any such action the jury find that the plaintiff is not entitled to damages beyond the amount (if any) tendered or paid into Court:(a) they shall return a verdict for the defendant, and(b) the plaintiff shall not be at liberty to elect to be nonsuit, and(c) so much of the amount (if any) paid into Court as is sufficient to pay the defendant’s costs, shall be paid out of Court to the defendant, and the residue (if any) to the plaintiff.
144 What damages may be recovered where plaintiff proved guilty of the offence of which he or she was convicted etc
If the plaintiff in any such action is entitled to recover and:(a) proves the payment of any penalty or sum of money under the conviction or order as part of the damages he or she seeks to recover, orand it is further proved:(b) proves that he or she was imprisoned under the conviction or order and seeks to recover damages for such imprisonment,(c) that he or she was actually guilty of the offence of which he or she was convicted, or(d) that he or she was liable by law to pay the sum he or she was ordered to pay, andhe or she shall not be entitled to recover the amount of the penalty or sum so paid by him or her, or any sum beyond the sum of two cents as damages for such imprisonment or any costs of suit.(e) that he or she had undergone no greater punishment in the way of imprisonment than that assigned by law for the offence of which he or she was convicted, or for non-payment of the sum he or she was ordered to pay,s 144: Am 1965 No 33, First Sch.
145 (Repealed)
s 145: Am 1970 No 52, Second Sch. Rep 1973 No 9, Sch 2.
Part 7 Miscellaneous
145A Sufficient description of an offence
(1) The description of any offence in the words of the Act, or any order, by-law, regulation, or other document creating the offence, or in similar words, shall be sufficient in law, and(2) Any exception, exemption, proviso, excuse, or qualification, whether it does or does not accompany in the same section the description of the offence in the Act, order, by-law, regulation, or other document creating the offence, may be proved by the defendant, but need not be specified or negatived in the information or complaint, and if so specified or negatived, no proof in relation to the matter so specified or negatived shall be required on the part of the informant or complainant.s 145A: Ins 1909 No 24, sec 25.
145B Short description of certain offences
(1) (Repealed)(2) For the purposes of this or any other Act, a summary offence or an indictable offence that may be dealt with summarily shall, in any information, complaint, summons, warrant, notice, order or other document, be deemed to be sufficiently stated or described if it is stated or described by the use of:(a) an expression prescribed in relation to the offence, orbut nothing in this section affects any other method of stating or describing an offence.(b) an expression that is substantially the same as the prescribed expression,(3) An expression referred to in subsection (2) (a) may be prescribed by a regulation made under this Act or under the Act creating the offence concerned, or under any Act authorising the issue of a penalty notice for the offence concerned. The regulation-making powers conferred by Acts other than this Act are extended accordingly.s 145B: Ins 1983 No 32, Sch 1 (3). Am 1993 No 108, Sch 1; 1995 No 16, Sch 2.13; 1997 No 51, Sch 3.4.
146 No proceedings in the nature of certiorari
No adjudication on appeal of the District Court is to be removed by any order into the Supreme Court.s 146: Am 1970 No 52, Second Sch; 1974 No 94, Sch 1; 1988 No 99, Sch 2 (10). Rep 1998 No 137, Sch 1 [4]. Ins 1999 No 39, Sch 4 [31].
147 Sufficiency of photocopy or facsimile of warrant
A copy of a warrant issued under this Act (being a copy produced by means of a photographic process or facsimile transmission) is as valid and effectual as the original warrant and confers the same powers, authorities, duties and functions as the original warrant.s 147: Rep 1985 No 207, Sch 3 (11). Ins 1994 No 30, Sch 1 (8).
147A Sufficiency of seal printed on summons, warrant or subpoena
Where a summons, warrant or subpoena signed before or after the commencement of section 2 of the Justices (Amendment) Act 1971 by a Magistrate or by a Justice or by Justices bears a printed representation of a seal, a seal so represented shall, for the purposes of this or any other Act requiring a summons, warrant or subpoena to be sealed, be deemed to have been affixed to the summons, warrant or subpoena:(a) where it is signed by two Justices, by each of them, or(b) in any other case, by the Magistrate or Justice who signed it.s 147A: Ins 1971 No 3, sec 2. Am 1982 No 165, Sch 8 (1); 1998 No 172, Sch 5 [18] [19].
148–151 (Repealed)
ss 148–151: Rep 1916 No 68, sec 16 (d).
152 Contempt of Court
If any person shall, during any proceeding before a Local Court presided over by a Magistrate, or during any proceeding under this Act, or any Act amending the same, before a Magistrate, or before Justices (one of whom is a Magistrate), be guilty of contempt, such person may be punished in a summary way by such Magistrate by fine not exceeding 10 penalty units or by imprisonment for a period not exceeding 14 days.s 152: Ins 1909 No 24, sec 26. Am 1947 No 3, sec 2 (1) (k); 1982 No 165, Sch 8 (2); 1991 No 71, Sch 1.
152A Power to refer allegation of contempt to Supreme Court
(1) Without prejudice to the powers of a Magistrate under section 152, if it is alleged, or appears to a court on its own view, that a person is guilty of contempt of the court, whether during a proceeding before the court or otherwise, the court may refer the matter to the Supreme Court for determination.(2) On any matter being referred to the Supreme Court under this section, the Supreme Court is to dispose of the matter in such manner as it considers appropriate.s 152A: Ins 1993 No 46, Sch 1.
153 (Repealed)
s 153: Ins 1918 No 32, sec 2. Am 1940 No 6, sec 2 (1) (t); 1970 No 96, Sch 1; 1971 No 70, sec 3 (m); 1978 No 162, Sch 1 (31). Rep 1998 No 107, Sch 2 [22].
153A Persons arrested under bench warrants
(1) The Justice or Justices before whom a person is brought after having been apprehended under a bench warrant issued by a Judge of any court in any criminal proceedings:(a) subject to the Bail Act 1978, must order that a warrant be issued for the committal of the person to a correctional centre or other place of security, and(b) must order the person to be brought before the court out of which the bench warrant was issued in accordance with the terms of the warrant.(2) A warrant under this section may be issued by any Justice.(3) The Bail Act 1978 applies to the person (not being an accused person) in the same way as it applies to an accused person and, for that purpose, bail may be granted to the person with respect to the period between:(a) the person’s being committed under this section, and(b) the person’s being brought before the court out of which the bench warrant was issued.s 153A: Ins 1955 No 16, sec 7 (1) (b). Am 1974 No 94, Sch 1; 1978 No 162, Sch 1 (32); 1985 No 1, Sch 1 (6). Subst 1998 No 107, Sch 2 [23].
153B Bail Act 1978 to prevail
Except where expressly provided, the Bail Act 1978 shall prevail to the extent of any inconsistency between that Act and this Act.s 153B: Ins 1978 No 162, Sch 1 (33).
154 Regulations
(1) It shall be lawful for the Governor to make regulations:(a) fixing the fees to be demanded and taken in respect of proceedings before any Justice or Justices and prescribing what fees may be taken and what fees may be retained for their own use by bailiffs of Local Courts,(b) prescribing in what manner lists of such fees shall be published for general information,(c) prescribing the persons by whom such fees may be demanded and taken,(d) prescribing under what circumstances and by whom such fees may be remitted,(e) prescribing the practice and procedure to be observed in collecting such fees.(f) (Repealed)And such fees and no other may be so demanded, taken and retained.(1A) The Governor may make regulations not inconsistent with this Act:(a) with respect to:(i) the manner of, and the practice to be observed in relation to, the taking and recording of depositions, evidence and statements in proceedings under this Act before a Justice or Justices,(ii) where any such depositions, evidence or statements are recorded otherwise than in writing, the making of transcripts of the recordings and the manner of certifying such transcripts,(b) prescribing any matter permitted to be prescribed by sections 36, 40 and 70.(1B) The Governor may make regulations not inconsistent with this Act for or with respect to prescribing the manner of and the practice to be observed in relation to stating and signing a case under section 104A or 104B and the making of nominations under that section and such other matters as may be necessary or convenient for carrying out or giving effect to the provisions of that section.(1C) (Repealed)(1CA) The Governor may make regulations not inconsistent with the Driving Instructors Act 1992 or this Act for or with respect to prescribing the manner of and the procedure and practice to be observed in relation to:(a) appeals to a Local Court under Part 3 of the Driving Instructors Act 1992, and(b) applications to a Local Court in respect of prohibition orders under Part 4 of that Act.(1D) The Governor may make regulations not inconsistent with this Act prescribing any forms (not being forms for the purposes of section 107) to be used under this Act.(1E) (Repealed)(2) Without affecting the generality of the foregoing provisions of this section, the Governor may make regulations not inconsistent with this Act for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.(2A) A provision of a regulation may:(a) apply generally or be limited in its application by reference to specified exceptions or factors,(b) apply differently according to different factors of a specified kind, oror may do any combination of those things.(c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body,(2B) (Repealed)(3) Provided that no fees shall be demanded:(a) from any naval or military pensioner for administering any oath necessary to be made for the receipt of his or her pension, or(b) in respect of proceedings before any Justice or Justices from any prosecutor or accused person in any prosecution for an offence which cannot by law be disposed of summarily.s 154: Ins 1940 No 6, sec 2 (1) (u). Am 1954 No 25, sec 18 (1) (d); 1954 No 32, sec 2 (h); 1966 No 24, sec 2 (b); 1970 No 85, sec 4 (1) (d) (am 1974 No 94, Sch 2); 1973 No 11, sec 3 (b); 1973 No 21, sec 5; 1979 No 178, Schs 1 (3), 2 (10); 1982 No 165, Sch 8 (3); 1983 No 32, Sch 1 (4); 1987 No 48, Sch 32; 1988 No 114, Sch 4; 1992 No 3, Sch 2; 1993 No 46, Sch 1; 1996 No 99, Sch 2.9 [15] [16]; 1998 No 107, Sch 2 [24] [25]; 1999 No 19, Sch 2.17 [8].
154A Rules
(1) Subject to the Local Courts (Civil Claims) Act 1970, the Rule Committee may make rules, not inconsistent with this or any other Act, for or with respect to:(a) any matter that is required or permitted to be prescribed by rules, or that is necessary or convenient to be prescribed by rules, in relation to the practice or procedure to be followed to give effect to this or any other Act or law conferring jurisdiction or functions on a Local Court, and(b) any matter incidental to, or relating to, any such practice or procedure.(1A) In particular, rules may be made for or with respect to the form of subpoenas issued under Division 4 of Part 4.(2) A rule does not take effect until it has been approved in writing by the Attorney General.(3) The general rules in force under section 15 immediately before the commencement of this section are taken to be rules made by the Rule Committee.s 154A: Ins 1998 No 49, Sch 1 [7]. Am 1998 No 172, Sch 5 [20].
155 Savings, transitional and other provisions
The Second Schedule has effect.s 155: Ins 1985 No 207, Sch 1 (14).
First Schedule Repeal of Acts
Reference to Act | Title or short title | Extent of repeal |
7 Vic No 25 | An Act to indemnify and render valid the acts of certain Justices of the Peace for the territory of New South Wales, and to enable territorial Justices of the Peace to act as such within the boundaries of the City of Sydney and Town of Melbourne respectively. | The whole. |
10 Vic No 6 | An Act to extend the provisions of an Act of Parliament, passed in the seventh year of the reign of His late Majesty King George the Fourth, as to taking Bail in cases of Felony and Misdemeanour. | The whole. |
11 Vic No 41 | An Act to enable the Governor of the Colony to cancel appointments of places for holding Courts of Petty Sessions. | The whole. |
13 Vic No 1 | An Act to confer upon all Justices of the Peace for the City of Sydney certain powers heretofore vested in the Police Magistrates of the said City. | The whole. |
14 Vic No 43 | The Justices Act of 1850. | The whole. |
11 & 12 Vic c 42 | An Act to facilitate the performance of the Duties of Justices of the Peace out of Sessions within England and Wales with respect to persons charged with Indictable Offences. | The whole. |
11 & 12 Vic c 43 | An Act to facilitate the performance of the Duties of Justices of the Peace out of Sessions within England and Wales with respect to summary Convictions and Orders. | The whole. |
11 & 12 Vic c 44 | An Act to protect Justices of the Peace from Vexatious Actions for acts done by them in execution of their office. | The whole. |
17 Vic No 39 | The whole. | |
20 Vic No 32 | An Act to provide for the discharge of the duties of Clerks of Petty Sessions in districts for which no such officer shall be appointed, and to withdraw certain special powers now possessed by Police Magistrates. | The whole. |
22 Vic No 14 | An Act to expedite Suits and Proceedings in Equity, and to facilitate the despatch of Business in the Supreme Court in Banco. | All not hitherto repealed. |
32 Vic No 6 | An Act to amend the Act 11 and 12 Vic c 43. | The whole. |
36 Vic No 1 | An Act to remove the Disqualifications of Justices of the Peace in certain cases. | The whole. |
45 Vic No 4 | The whole, except sec 13. | |
45 Vic No 17 | The whole. | |
46 Vic No 17 | Sections 342, 346, 347, 434, 445 (last clause), 459, 471. | |
47 Vic No 14 | The whole. | |
52 Vic No 6 | Section 2. | |
55 Vic No 5 | All not hitherto repealed. | |
60 Vic No 18 | The whole. | |
No 50, 1899 | The whole. | |
No 71, 1900 | All not hitherto repealed. |
First Sch: Am 1987 No 15, Sch 2.
Second Schedule Savings, transitional and other provisions
(Section 155)
Part 1 Saving provision consequent upon the Justices (Penalties and Procedure) Amendment Act 1985
1 Securities currently lodged for payment of fine etc
This Act, as in force immediately before the commencement of Schedule 1 to the Justices (Penalties and Procedure) Amendment Act 1985, applies in respect of a security directed to be paid under section 83 before that commencement as if that Act had not been enacted.
1A Orders under section 41A
This Act, as in force immediately before the commencement of Schedule 3 (2) to the Justices (Penalties and Procedure) Amendment Act 1985, applies in respect of an order made under section 41A before that commencement as if that Act had not been enacted.
Part 2 Transitional provisions consequent upon variation of rate of default imprisonment by Justices (Penalties and Procedure) Amendment Act 1985
2 Warrant issued before Justices (Penalties and Procedure) Amendment Act 1985
(1) Where, by warrant issued under section 87 or 88 (2) before the commencement of Schedule 1 to the Justices (Penalties and Procedure) Amendment Act 1985 in respect of the non-payment by a person of an amount of money, a Justice committed a person to prison, the person may be so detained after that commencement only for a period not exceeding:(a) a period calculated at the rate of one day for every $50, or part thereof, of the balance owing after that commencement, orwhichever is the shorter period.(b) a period that, together with any period for which the person was detained in prison before that commencement pursuant to a warrant issued for that non-payment, totals 3 months,(2) In subclause (1):balance owing, in relation to a person who, at the commencement of Schedule 1 to the Justices (Penalties and Procedure) Amendment Act 1985, has been committed to prison for non-payment of an amount of money, means the balance of that amount after deduction of:(a) any payment made by way of reduction of the amount, and(b) $25 for any day during which the person was detained in prison by reason of that non-payment before that commencement.
3 Warrant to be issued after Justices (Penalties and Procedure) Amendment Act 1985
A Justice issuing a warrant after the commencement of Schedule 1 to the Justices (Penalties and Procedure) Amendment Act 1985, being a warrant under section 87 or 88 (2) committing a person to prison pursuant to a conviction or order made before that commencement shall, by the warrant, order the person to be imprisoned for a period calculated in accordance with section 82 (2) as at the time of issue, having regard to the amount adjudged by the conviction or order to be paid or such part thereof as is unsatisfied, instead of for the period fixed by the conviction or order.
Part 3 Transitional provisions consequent upon variation of rate of default imprisonment by regulation
4 Definitions
In this Part:balance owing, in relation to a person who, at a variation date, has been committed to prison for non-payment of an amount of money, means the balance of that amount after deduction of:(a) any payment made by way of reduction of the amount, and(b) the former amount for any day during which the person was detained in prison by reason of that non-payment before the variation date.former amount, in relation to a variation date, means:(a) where an amount was not prescribed by regulation for the purposes of the definition of prescribed unit in section 82 (2D) immediately before the variation date, the amount of $50, or(b) in any other case, the amount prescribed by regulation for the purposes of that definition immediately before the variation date.new amount, in relation to a variation date, means the amount prescribed by regulation for the purposes of the definition of prescribed unit in section 82 (2D) on and from the variation date.variation date means the date on and from which an amount (or other amount) is prescribed by regulation for the purposes of the definition of prescribed unit in section 82 (2D).
5 Warrant issued before regulation varying rate
Where, by warrant issued under section 87 or 88 (2) before a variation date in respect of the non-payment by a person of an amount of money, a Justice committed a person to prison, the person may be detained after that date pursuant to that warrant only for a period not exceeding:(a) a period calculated at the rate of one day for every new amount, or part thereof, of the balance owing on or after that variation date, orwhichever is the shorter period.(b) a period that, together with any period for which the person was detained in prison before that date pursuant to a warrant issued for that non-payment, totals 3 months,
6 Warrant to be issued after regulation varying rate
A Justice issuing a warrant on or after a variation date, being a warrant under section 87 or 88 (2) committing a person to prison pursuant to a conviction or order made before that variation date shall, by the warrant, order the person to be imprisoned for a period calculated in accordance with section 82 (2) as at the time of issue, having regard to the amount adjudged by the conviction or order to be paid or such part thereof as is unsatisfied, instead of for the period fixed by the conviction or order.
Part 4 Transitional and other provisions consequent on enactment of Fine Enforcement Legislation (Amendment) Act 1989
7 Definitions
In this Part:appointed day, in relation to a provision of this Part, means the day on which the provision commences.existing fine defaulter means:(a) a person by whom a fine, penalty, costs or other amount was before 18 January 1988 adjudged in proceedings before a court exercising jurisdiction under the Child Welfare Act 1939 to be payable, or(b) a person:(i) who (by virtue of an enforcement order made against the person under Division 2 of Part 4B before 18 January 1988) was required to pay a fine, penalty, costs or other amount of money, andand by or on behalf of whom the fine, penalty, costs or other amount of money has not been paid, whether or not an existing warrant has been issued in respect of the person.(ii) who was a child or young person, within the meaning of the Child Welfare Act 1939, at the time the alleged offence to which the order relates was committed,existing warrant means:(a) an order made under the Child Welfare Act 1939 purporting to commit a person to or order the detention of a person in an institution within the meaning of that Act, orbut that has not been executed.(b) a warrant of commitment that has been issued in default of payment of a fine, penalty, costs or other amount adjudged, in proceedings before a court exercising jurisdiction under the Child Welfare Act 1939, to be payable,
8 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the Fine Enforcement Legislation (Amendment) Act 1989.(2) Any such provision may, if the regulations so provide, take effect from the date of assent to that Act or a later day.(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
9 Orders made before commencement of legislation etc
(1) A community service order made under Part 3 of the Community Service Orders Act 1979 or under section 5A of the Children (Community Service Orders) Act 1987 and in force immediately before the appointed day is to continue in force, expire, be dealt with and be enforced on breach as though the Fine Enforcement Legislation (Amendment) Act 1989 had not been enacted.(2) This Act and the Children (Criminal Proceedings) Act 1987 apply to an order referred to in subclause (1) as though the Fine Enforcement Legislation (Amendment) Act 1989 had not been enacted.(3) The provisions of this Act and, where applicable, the provisions of the Community Service Orders Act 1979, the Children (Community Service Orders) Act 1987 and the Children (Criminal Proceedings) Act 1987 apply to a person subject to an order referred to in subclause (1), or who breaches such an order, as though the Fine Enforcement Legislation (Amendment) Act 1989 had not been enacted.
10 Warrants issued under section 87 but not executed before commencement of section 89B etc
The provisions of this Act, the Children (Community Service Orders) Act 1987, the Community Service Orders Act 1979 and the Children (Criminal Proceedings) Act 1987, as respectively amended by the Fine Enforcement Legislation (Amendment) Act 1989, apply to a warrant issued under section 87 before the appointed day and that is not revoked or executed before that day in the same way as they apply to a warrant issued under section 87 after the commencement of this clause.
11 Application of provisions to “private payees”
(1) Section 89D applies to a fine, penalty, costs or other amount payable before the appointed day by virtue of:(a) a conviction or order in proceedings before a Local Court or Children’s Court, orin the same way as it applies to any such amount that becomes payable after the commencement of that section.(b) an enforcement order under Division 2 of Part 4B,(2) A person or body to whom section 89D applies may not take action under section 89D (2) in respect of an amount for which a children’s community service order or a community service order was made before the appointed day under section 5A of the Children (Community Service Orders) Act 1987 or section 26A or 26B of the Community Service Orders Act 1979.
12 Construction of certain references in existing warrants
In an existing warrant:(a) a reference (however expressed) to an institution or a shelter, or an institution or a shelter of a particular kind, is to be read as a reference to a detention centre within the meaning of the Children (Detention Centres) Act 1987 or, if the person the subject of the warrant is of or above the age of 21 years or remanded to or imprisoned in a prison, as a reference to a prison, and(b) a reference (however expressed) to the superintendent of an institution or the keeper or other person in charge of a shelter is to be read as a reference to the superintendent of a detention centre within the meaning of the Children (Detention Centres) Act 1987 or the keeper of a prison, as the case requires.
13 Procedures in relation to existing fine defaulters
(1) Without limiting the generality of section 30 of the Interpretation Act 1987, a warrant may be issued under and subject to section 87 of this Act in respect of an existing fine defaulter.(2) The provisions of this Act, the Children (Community Service Orders) Act 1987, the Community Service Orders Act 1979 and the Children (Criminal Proceedings) Act 1987, as respectively amended by the Fine Enforcement Legislation (Amendment) Act 1989, apply to existing warrants, and warrants issued after the appointed day in respect of existing fine defaulters, in the same way as they apply to warrants issued in respect of fine defaulters under section 87 after the appointed day.
14 Other provisions relating to existing warrants
An existing warrant which is, by virtue of clause 12, to be read as committing a person to a detention centre is to be taken to be an order under section 33 (1) (g) of the Children (Criminal Proceedings) Act 1987. This has the effect of making the warrant a detention order for the purposes of the Children (Detention Centres) Act 1987.
Part 5 Transitional provisions consequent on enactment of the Justices (Amendment) Act 1993
15
A provision of Division 4 of Part 5 applies to and in respect of an appeal or application under that Division by a person against whom a conviction or order was made before the commencement of an amendment to that provision made by the Justices (Amendment) Act 1993 as if the amendment were not in force.
Part 6 Provisions consequent on enactment of Justices (Courtesy Letters) Amendment Act 1993
16 Validation
(1) A notice, apparently for the purposes of section 100J, issued before the date of commencement of the Justices (Courtesy Letters) Amendment Act 1993 and expressed to be a courtesy letter is taken to be a valid courtesy letter referred to in section 100J and to have been validly issued.(2) Action taken after the issue of such a notice is not invalid because of any invalidity cured by this clause. Without limiting the generality of this provision, such action includes the payment or recovery of an amount under a penalty notice, the payment or recovery of an amount under an enforcement order made under section 100L, the imprisonment or detention of a person, the cancellation of the registration of a motor vehicle, the cancellation of a licence issued under the Traffic Act 1909 or the incurring or recording of demerit points under the Motor Traffic Regulations 1935.
17 Application of amendments
The amendments made by the Justices (Courtesy Letters) Amendment Act 1993 do not apply to a courtesy letter that is posted before the commencement of that Act.
Part 7 Provisions consequent on Justices (Fine Default) Amendment Act 1994
18 Definition
In this Part:fine default amendments means the Justices (Fine Default) Amendment Act 1994.
19 Operation of fine default amendments generally
(1) The amendments made by the fine default amendments apply in respect of convictions or orders whether made before or after the commencement of those amendments, except as provided by this Part.(2) An amendment made by the fine default amendments extends to apply in respect of any warrant of commitment issued under section 87 and in force but not executed immediately before the commencement of the amendment.(3) Section 87 (1A) does not apply to affect the validity of a warrant issued before the commencement of that subsection.
20 Civil enforcement by private payees
(1) An amendment made to section 89D by the fine default amendments (re-numbered as section 89G by those amendments) does not apply in respect of the proceeds of a fine, penalty, costs or other amount payable by virtue of a conviction, order or enforcement order made before the commencement of the amendment, except as provided by subclause (2).(2) Section 89G (4B) extends to apply in respect of costs payable by virtue of a conviction, order or enforcement order made before the commencement of that subsection.(3) A warrant of commitment in force under section 87 immediately before the commencement of section 89G (4B) is revoked on the commencement of that subsection to the extent that the warrant relates to any costs awarded against a person as informant if the person was not acting in the capacity of a public official.
21 Applications for community service orders
An application made under section 89B (as in force immediately before the repeal of that section by the fine default amendments) for the purposes of section 26A of the Community Service Orders Act 1979 or section 5A of the Children (Community Service Orders) Act 1987 and pending immediately before the repeal of section 89B is taken to have been made under section 89C as inserted by the fine default amendments.
22 Revival of warrants
Nothing in the fine default amendments operates to revive any warrant of commitment that has been recalled, withdrawn or revoked.
23 Rate at which amounts are worked off under CSO
The amendments made by the fine default amendments to section 26C of the Community Service Orders Act 1979 and section 13 of the Children (Community Service Orders) Act 1987 apply only in respect of hours of community service work worked after the commencement of those amendments.
Part 8 Provisions consequent on enactment of Justices Amendment (Committals) Act 1996
24 Committal proceedings already started
(1) An amendment made by Schedule 1 [1], [2], [3], [4], [8], [10] or [11] of the Justices Amendment (Committals) Act 1996 applies from the commencement of the amendment to, or for the purposes of, all committal proceedings (including committal proceedings pending at that commencement).(2) The amendments made by Schedule 1 [5], [6], [7] and [9] of the Justices Amendment (Committals) Act 1996 apply to, or for the purposes of, only those committal proceedings in respect of which an information is laid after the commencement of those amendments.
Part 9 Provisions consequent on enactment of Justices Amendment (Procedure) Act 1997
25 Informations and summonses
Sections 22A and 52A, as inserted by the Justices Amendment (Procedure) Act 1997, apply to proceedings commenced before, on or after the commencement of either of those sections.
26 Written pleas
Section 75, as inserted by the Justices Amendment (Procedure) Act 1997, applies to proceedings commenced before, on or after the commencement of that section.
27 Ex parte procedures
Sections 75A–75F, as inserted by the Justices Amendment (Procedure) Act 1997, apply to proceedings commenced before, on or after the commencement of any of those provisions.
28 Review of convictions, orders and sentences
(1) Part 4A, as inserted by the Justices Amendment (Procedure) Act 1997, applies only to convictions, orders or sentences made or imposed after the commencement of that Part and so applies whether or not the proceedings concerned commenced before or after that commencement.(2) Part 4A, as in force immediately before its repeal by the Justices Amendment (Procedure) Act 1997, continues to have effect in respect of convictions, orders or sentences made or imposed before that repeal.
Part 10 Provisions consequent on enactment of Crimes Legislation Amendment Act 1998
29 Direction to witness to attend
Section 48E, as in force immediately before the amendment to that section made by the Crimes Legislation Amendment Act 1998, applies to and in respect of a person who has made a written statement for the purposes of Subdivision 7A of Division 1 of Part 4 in relation to any committal proceedings that are pending, or that have been commenced but not completed, on the commencement of that amendment.
Part 11 Provisions consequent on enactment of Criminal Procedure Legislation Amendment (Bail Agreements) Act 1998
30 Definitions
In this Part:the amended 1954 Act means the Forfeited Recognizances and Bail Act 1954, as in force immediately before its amendment by the 1998 amending Act.the 1998 amending Act means the Criminal Procedure Legislation Amendment (Bail Agreements) Act 1998.
31 Application of sections 31, 66 and 153A
The provisions of sections 31, 66 and 153A, as amended by the 1998 amending Act, apply to and in respect of any warrant issued before the commencement of those provisions in the same way as they apply to and in respect of any warrant issued after that commencement.
32 Application of section 69
The provisions of section 69, as amended by the 1998 amending Act, apply to and in respect of any hearing that began before the commencement of those provisions in the same way as they apply to and in respect of any hearing that begins after that commencement.
33 Continuation of certain recognizances
(1) The provisions of:(a) Subdivision 8 of Division 1 of Part 4 of the Justices Act 1902, andcontinue to apply to a recognizance entered into under section 49 of the Justices Act 1902 before the repeal of that section by the 1998 amending Act as if the 1998 amending Act had not been enacted.(b) the amended 1954 Act,(2) The provisions of:(a) Subdivision 9 of Division 2 of Part 4 of the Justices Act 1902, andcontinue to apply to a recognizance entered into under section 96 of the Justices Act 1902 before the repeal of that section by the 1998 amending Act as if the 1998 amending Act had not been enacted.(b) the amended 1954 Act,(3) The provisions of:(a) sections 102 and 131B of the Justices Act 1902, andcontinue to apply to a recognizance entered into under section 102 of the Justices Act 1902 before the repeal of that section by the 1998 amending Act as if the 1998 amending Act had not been enacted.(b) the amended 1954 Act,(4) The provisions of:(a) sections 123 and 131B of the Justices Act 1902, andcontinue to apply to a recognizance entered into under section 123 of the Justices Act 1902 before the substitution of that section by the 1998 amending Act as if the 1998 amending Act had not been enacted.(b) the amended 1954 Act,(5) The provisions of:(a) sections 125A and 131B of the Justices Act 1902, andcontinue to apply to a recognizance entered into under section 125A of the Justices Act 1902 before the repeal of that section by the 1998 amending Act as if the 1998 amending Act had not been enacted.(b) the amended 1954 Act,(6) The provisions of:(a) section 153A of the Justices Act 1902, andcontinue to apply to a recognizance entered into under section 153A of the Justices Act 1902 before the substitution of that section by the 1998 amending Act as if the 1998 amending Act had not been enacted.(b) the amended 1954 Act,
34 Stay of execution under section 123 or 125A
(1) Any stay of execution that was in force under section 123, immediately before its substitution by the 1998 amending Act, is unaffected by that substitution.(2) Any stay of execution that was in force under section 125A, immediately before its repeal by the 1998 amending Act, is unaffected by that repeal.
35 Application of section 40 of Coroners Act 1980
The provisions of:(a) section 40 of the Coroners Act 1980, andcontinue to apply to a recognizance entered into under section 40 of the Coroners Act 1980 before the substitution of that section by the 1998 amending Act as if the 1998 amending Act had not been enacted.(b) the amended 1954 Act,
36 Application of section 72 of Local Courts (Civil Claims) Act 1970
The provisions of:(a) section 72 of the Local Courts (Civil Claims) Act 1970, andcontinue to apply to a recognizance entered into under section 72 of the Local Courts (Civil Claims) Act 1970 before the amendment of that section by the 1998 amending Act as if the 1998 amending Act had not been enacted.(b) the amended 1954 Act,
37 Application of section 17A of Inebriates Act 1912
The provisions of section 17A of the Inebriates Act 1912, as inserted by the 1998 amending Act, apply to and in respect of any recognizance entered into before the commencement of those provisions in the same way as they apply to and in respect of any recognizance entered into after that commencement.
38 Application of section 31 (4) of Protected Estates Act 1983
The provisions of section 31 of the Protected Estates Act 1983, as amended by the 1998 amending Act, apply to and in respect of any bond or recognizance given or entered into before the commencement of those provisions in the same way as they apply to and in respect of any bond given after that commencement.
39 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the Criminal Procedure Legislation Amendment (Bail Agreements) Act 1998.(2) Such a provision may, if the regulations so provide, take effect from the date of assent to that Act or a later day.(3) To the extent to which such a provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of that publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of that publication.
Part 12 Provisions consequent on enactment of Justices Legislation Amendment (Appeals) Act 1998
40 Application of appeals provisions
(1) Parts 5, 5A and 5B, as inserted by the Justices Legislation Amendment (Appeals) Act 1998, apply only to convictions or orders made, or sentences imposed, after the commencement of those Parts and so apply whether or not the proceedings concerned commenced before or after that commencement.(2) Part 5, as in force immediately before its repeal by the Justices Legislation Amendment (Appeals) Act 1998, continues to have effect in respect of convictions or orders made or sentences imposed before that repeal.(3) This clause extends to a conviction, order, determination or sentence made or imposed under another Act before the repeal of Part 5 by the Justices Legislation Amendment (Appeals) Act 1998 in proceedings to which provisions of that Part were applied by that other Act.
41 Direction to Justice to act
(1) An application made under section 134 before its repeal but not determined before that repeal may be dealt with as if that section had not been repealed.(2) Section 134 (2) as in force before its repeal applies in relation to an order made by the Supreme Court on an application referred to in subclause (1).
42 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the Justices Legislation Amendment (Appeals) Act 1998.(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
Part 13 Provisions consequent on enactment of Courts Legislation Further Amendment Act 1998
43 Definition
In this Part, amending Act means the Courts Legislation Further Amendment Act 1998.
44 Existing proceedings
(1) Division 4 of Part 4, as inserted by the amending Act, extends to proceedings commenced before the commencement of that Division.(2) However, the provisions of Divisions 1 and 2 as in force immediately before the commencement of the amendments made to those Divisions by the amending Act continue to apply to and in respect of a summons issued under section 26 or 61 and in force immediately before the commencement of those amendments as if those amendments had not been made.
45 Validation
(1) The issue of a subpoena before the commencement of Division 4 of Part 4, as inserted by the amending Act, is validated to the extent of any invalidity if the issue of the subpoena would have been valid had the Division been in force at the time the subpoena was issued.(2) Any act, matter or thing done after the issue of such a subpoena is validated to the extent of any invalidity if the act, matter or thing would have been validly done had the Division been in force at the time it was done.
Part 14 Provisions consequent on enactment of Courts Legislation Amendment Act 1999
46 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the Courts Legislation Amendment Act 1999.(2) Any such provision may, if the regulations so provide, take effect from the date of assent to that Act or a later date.(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
47 Use of transcripts of interviews with children
(1) The amendments made to Subdivision 7A of Division 1 of Part 4 by the Courts Legislation Amendment Act 1999 apply only in respect of committal proceedings that are commenced to be heard by a Justice or Justices after the commencement of those amendments.(2) The amendments to Subdivision 6A of Division 2 of Part 4 made by the Courts Legislation Amendment Act 1999 do not apply in respect of proceedings for the prosecution of a prescribed summary offence if the hearing of the evidence for the prosecution commenced before the commencement of those amendments.
48 Review of decisions by Industrial Magistrates
The amendment made to section 100P by the Courts Legislation Amendment Act 1999 does not apply in respect of any application made by a person under section 100D or 100G before the commencement of that amendment.
49 Amendments to appeal provisions
(1) The amendments made to Part 5 by the Courts Legislation Amendment Act 1999 do not apply in respect of any conviction or order made, or sentence imposed, before the commencement of those amendments.(2) The amendment made to section 127 by the Courts Legislation Amendment Act 1999 does not apply in respect of any conviction or order made, or sentence imposed, before the commencement of that amendment.(3) The amendments made to Part 5B by the Courts Legislation Amendment Act 1999 do not apply in respect of any conviction or order made, or sentence imposed, before the commencement of those amendments.
50 Appeals to District Court against apprehended violence orders
Section 123 (1A), as inserted by the Courts Legislation Amendment Act 1999, applies only in respect of apprehended violence orders made under Part 15A of the Crimes Act 1900 after the commencement of that subsection.
51 Hearing of appeals against sentence by District Court
(1) Section 131A and the amendments made to sections 132 and 133 by the Courts Legislation Amendment Act 1999 apply to appeals against sentence made to the District Court after the commencement of section 131A, and so apply even if the sentence the subject of the appeal was imposed before the commencement of that section.(2) Sections 132 and 133, as in force immediately before the commencement of section 131A, continue to have effect in respect of appeals against sentence made to the District Court before that commencement.
52 Availability of certiorari
Section 146, as inserted by the Courts Legislation Amendment Act 1999, does not apply in respect of any application made to the Supreme Court before the commencement of that section.
Part 15 Provisions consequent on enactment of Courts Legislation Amendment Act 2001
53 Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the Courts Legislation Amendment Act 2001 (but only to the extent that it amends this Act).(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
54 Application of provisions
(1) The amendments made to this Act by the Courts Legislation Amendment Act 2001 apply to or in respect of committal proceedings for offences, whether committed before, on or after the commencement of this clause, but do not apply to or in respect of committal proceedings commenced before the commencement of this clause.(2) This Act, as in force before the commencement of this clause, continues to apply to or in respect of committal proceedings commenced before the commencement of this clause.
55 Appeals by defendants and other persons to District Court
Section 120, as amended by Schedule 5 [7] to the Courts Legislation Amendment Act 2001, applies to and in respect of all proceedings, whether finally determined before, on or after the commencement of that amendment.
Second Sch: Rep 1970 No 85, sec 4 (1) (e). Ins 1985 No 207, Sch 1 (15). Am 1985 No 207, Sch 3 (12); 1989 No 196, Sch 1 (7); 1993 No 45, Sch 1 (10); 1993 No 75, Sch 1 (5); 1994 No 30, Sch 1 (9); 1996 No 123, Sch 1 [12]; 1997 No 107, Sch 1 [7]; 1998 No 53, Sch 6 [2]; 1998 No 107, Sch 2 [26]; 1998 No 137, Sch 1 [5]; 1998 No 172, Sch 5 [21]; 1999 No 39, Sch 4 [32]; 2001 No 85, Sch 5 [11].
Third–Fifth Schedules (Repealed)
Third Sch: Rep 1970 No 85, sec 4 (1) (f).
Fourth Sch: Rep 1904 No 14, Sch.
Fifth Sch: Ins 1970 No 85, sec 5. Am 1973 No 11, sec 5. Rep 1974 No 94, sec 4 (b).