An Act relating to the prosecution of indictable offences, the listing of criminal proceedings before the Supreme Court and the District Court, committal proceedings and proceedings for summary offences and the giving of certain indemnities and undertakings; and for other purposes.
long title: Am 2001 No 119, Sch 1 [1].
Chapter 1 Preliminary
ch 1, hdg: Ins 2001 No 119, Sch 1 [2].
1 Name of Act
This Act may be cited as the Criminal Procedure Act 1986.
2 Commencement
(1) Sections 1 and 2 shall commence on the date of assent to this Act.(2) Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor and notified by proclamation published in the Gazette.
3 Definitions
(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires—accused person includes, in relation to summary offences, a defendant and, in relation to all offences (where the subject-matter or context allows or requires), an Australian legal practitioner representing an accused person.apprehended violence order has the same meaning as in the Crimes (Domestic and Personal Violence) Act 2007.apprehended violence order proceedings has the same meaning as in the Crimes (Domestic and Personal Violence) Act 2007.means—(a) a registrar of a court, or(b) an employee of the Attorney General’s Department authorised by the Attorney General as an authorised officer for the purposes of this Act.bail has the same meaning as it has in the Bail Act 2013.case conference means a conference held under Division 5 of Part 2 of Chapter 3.case conference certificate means a case conference certificate required to be completed and filed under Division 5 of Part 2 of Chapter 3.case conference material—see section 78 (5).charge certificate—see section 66 (1).Chief Magistrate means the Chief Magistrate of the Local Court appointed under the Local Court Act 2007.coincidence evidence has the same meaning as it has in the Evidence Act 1995.committal proceedings means proceedings before a Magistrate for the purpose of committing a person charged with an indictable offence for trial or sentence.court means—(a) the Supreme Court, the Court of Criminal Appeal, the Land and Environment Court, the District Court or the Local Court, orbut, subject to the Children (Criminal Proceedings) Act 1987, does not include the Children’s Court or any other court that, or person who, exercises the functions of the Children’s Court.(b) any other court that, or person who, exercises criminal jurisdiction,Court of Coal Mines Regulation means the Court of Coal Mines Regulation established under the Coal Mines Regulation Act 1982.domestic violence complainant, in proceedings for a domestic violence offence, means the person against whom the domestic violence offence is alleged to have been committed, but does not include a person who is a vulnerable person.domestic violence offence means a domestic violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007.exercise a function includes perform a duty.function includes a power, authority or duty.indictable offence means an offence (including a common law offence) that may be prosecuted on indictment.Industrial Magistrate means an Industrial Magistrate appointed under the Industrial Relations Act 1996.intervention plan—see section 346.intervention program—see section 346.offence means an offence against the laws of the State (including a common law offence).plea offer—see section 77 (1).prescribed sexual offence means—(a) an offence under section 43B, 45, 45A, 61B, 61C, 61D, 61E, 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF, 61L, 61M, 61N, 61O, 63, 65, 65A, 66, 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66EA, 66EB, 66EC, 66F, 67, 68, 71, 72, 72A, 73, 73A, 74, 76, 76A, 78A, 78B, 78H, 78I, 78K, 78L, 78M, 78N, 78O, 78Q, 79, 80, 80A, 80D, 80E, 81, 81A, 81B, 87, 89, 90, 90A, 91, 91A, 91B, 91D, 91E, 91F, 91G, 91P, 91Q, 91R, 316 (if the concealed serious indictable offence is a prescribed sexual offence) or 316A of the Crimes Act 1900, or(b) an offence that, at the time it was committed, was a prescribed sexual offence for the purposes of this Act or the Crimes Act 1900, or(c) an offence (including an offence under section 86 of the Crimes Act 1900) that includes the commission of, or an intention to commit, an offence referred to in paragraph (a) or (b), or(d) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a), (b) or (c).prescribed summary offence has the same meaning as in the Director of Public Prosecutions Act 1986.prosecutor means the Director of Public Prosecutions or other person who institutes or is responsible for the conduct of a prosecution and includes (where the subject-matter or context allows or requires) an Australian legal practitioner representing the prosecutor.public officer means any of the following persons, if acting in an official capacity—(a) an employee in the Public Service or the NSW Police Force,(b) an officer or employee of a statutory body representing the Crown,(c) an employee of a council within the meaning of the Local Government Act 1993,(d) a member of staff of Local Land Services,(e) the Director of Public Prosecutions, Deputy Director of Public Prosecutions or Solicitor for Public Prosecutions,(f) an officer or employee of a body declared by the regulations to be a public body for the purposes of this definition.recorded statement—see section 289D.regulations means regulations under this Act.Rule Committee for a court means a person or body having power to make rules for the court.rules means rules made for the purposes of a court to which the relevant provision applies.sexual offence witness has the same meaning as in section 294D.summary offence means an offence that is not an indictable offence.tendency evidence has the same meaning as it has in the Evidence Act 1995.trial Judge means the Judge before whom trial proceedings, following empanelment of a jury in proceedings on indictment, are heard.vulnerable person has the same meaning as it has in Part 6 of Chapter 6.Note—The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.(2) Notes included in this Act are explanatory notes and do not form part of this Act.(3) In the absence of evidence to the contrary, a person specified in paragraphs (a)–(f) of the definition of public officer who purports to exercise a function as a public officer under this Act is presumed to be acting in an official capacity.(4) In this Act, a reference to the empanelment of a jury is, in the case of a trial by a Judge alone, taken to be a reference to the point in time when the Judge first assumes the role of the tribunal of fact.s 3: Am 2001 No 119, Sch 1 [3]–[6]; 2002 No 100, Sch 1 [3]; 2003 No 9, Sch 2.1 [1]; 2003 No 27, Sch 8 [1]; 2005 No 25, Sch 1 [1]; 2006 No 107, Sch 1.11 [1]; 2006 No 120, Sch 3.7 [1]; 2007 No 74, Sch 2 [1]; 2007 No 80, Sch 2.9 [1]; 2007 No 92, Sch 4.5 [1]; 2007 No 94, Schs 1.28 [1] [2], 2; 2008 No 107, Sch 29.4 [1]; 2008 No 112, Sch 6.3; 2009 No 112, Sch 1 [1] [2]; 2011 No 62, Sch 3.7; 2013 No 51, Sch 7.8; 2014 No 5, Sch 2.15 [1]; 2014 No 83, Sch 1 [1]; 2015 No 67, Sch 1.8 [1]; 2016 No 48, Sch 2.13 [1] [2]; 2017 No 44, Sch 1.9 [1] [2]; 2017 No 55, Sch 1 [1] [2]; 2018 No 25, Sch 5.10; 2018 No 33, Sch 4 [1]–[6]; 2018 No 88, Sch 5 [1]; 2019 No 20, Sch 1.10[1]–[3]; 2020 No 31, Sch 1.8[1] [2]; 2020 No 36, Sch 2[1].
4 Regulations and rules
(1) 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.(2) The Rule Committee for a court may make rules, not inconsistent with this or any other Act, for or with respect to the following matters—(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 Act,(b) any matter incidental to, or relating to, any such practice or procedure.(3) The rules are to be made in accordance with the Act under which the court is constituted.s 4 (previously s 5): Renumbered 2001 No 119, Sch 1 [8]. Am 2001 No 119, Sch 1 [9].
4A Fees
(1) The regulations may make provision for or with respect to the following matters—(a) the fees payable to a court in relation to the conduct of criminal proceedings in the court, including fees for the following—(i) the filing or registration of any document in the court,(ii) the sealing or other authentication of any document that has been filed in the court,(iii) the issue of any document out of the court,(b) the fees payable in relation to the functions exercised by the Sheriff in relation to criminal proceedings,(c) the fees payable for administrative services provided by a registrar or other officer of the court, whether in connection with the administration of this Act or otherwise,(d) the waiver, postponement and remittal of fees.(2) Fees of the kind referred to in subsection (1) (a) or (b) are not payable by the Crown, or by any person acting on behalf of the Crown, with respect to any criminal proceedings prosecuted by—(a) the Crown,(b) any Minister of the Crown,(c) any person or body prescribed by the regulations or belonging to a class of persons or bodies so prescribed.(2A) Despite subsection (2), such fees are payable by any NSW Government agency or statutory body representing the Crown prescribed by the regulations for the purposes of this subsection.(3) Subsection (2) does not prevent the recovery by the Crown or any such person or body of any fees that would, had they been paid by the Crown or any such person or body, have been so recoverable.(4) Unpaid fees may be recovered by the person to whom they are payable, as a debt, in any court of competent jurisdiction.(5) In this section, criminal proceedings means proceedings for an offence (whether summary or indictable), and includes the following—(a) committal proceedings,(b) proceedings relating to bail,(c) proceedings relating to sentence,(d) proceedings on an appeal against conviction or sentence.s 4A: Ins 2005 No 28, Sch 5.11 [1]. Am 2012 No 60, Sch 5.
Chapter 2 General provisions
ch 2, hdg: Ins 2001 No 119, Sch 1 [11].
Part 1 Offences
ch 2, pt 1, hdg: Ins 2001 No 119, Sch 1 [11].
5 Certain offences to be dealt with on indictment
(1) An offence must be dealt with on indictment unless it is an offence that under this or any other Act is permitted or required to be dealt with summarily.(2) An offence may be dealt with on indictment if it is an offence that under this or any other Act is permitted to be dealt with summarily or on indictment.s 5 (previously s 7): Renumbered 2001 No 119, Sch 1 [12].
6 Certain offences to be dealt with summarily
(1) The following offences must be dealt with summarily—(a) an offence that under this or any other Act is required to be dealt with summarily,(b) an offence that under this or any other Act is described as a summary offence,(c) an offence for which the maximum penalty that may be imposed is not, and does not include, imprisonment for more than 2 years, excluding the following offences—(i) an offence that under any other Act is required or permitted to be dealt with on indictment,(ii) an offence listed in Table 1 or 2 to Schedule 1.(2) An offence may be dealt with summarily if it is an offence that under this or any other Act is permitted to be dealt with summarily or on indictment.s 6 (previously s 8): Renumbered 2001 No 119, Sch 1 [12]. Am 2007 No 57, Sch 1 [1].
7 Certain summary offences may be dealt with by Local Court
(1) An offence that is permitted or required to be dealt with summarily is to be dealt with by the Local Court.(2) This section does not apply to an offence that, under this or any other Act, is required to be dealt with summarily otherwise than by the Local Court.s 7 (previously s 9): Renumbered 2001 No 119, Sch 1 [12]. Am 2001 No 119, Sch 1 [13]; 2007 No 94, Sch 2.
8 Prosecution of indictable offences
(1) All offences shall be punishable by information (to be called an indictment) in the Supreme Court or the District Court, on behalf of the Crown, in the name of the Attorney General or the Director of Public Prosecutions.(2) Such an indictment may be presented or filed whether or not the person to whom the indictment relates has been committed for trial in respect of an offence specified in the indictment.(3) This section does not apply to offences that are required to be dealt with summarily.(4) This section does not affect any law or practice that provides for an indictable offence to be dealt with summarily.s 8 (previously s 10): Renumbered 2001 No 119, Sch 1 [12]. Am 2015 No 15, Sch 2.14 [1].
9 Name in which prosecutions may be instituted
Any prosecution or proceedings instituted by the Attorney General or the Director of Public Prosecutions in respect of any offence (whether an indictable offence or a summary offence) may be instituted in either the official name or the personal name of the Attorney General or the Director of Public Prosecutions.s 9 (previously s 51): Renumbered 2001 No 119, Sch 1 [14].
10 Indictment of bodies corporate
(1) Unless a contrary intention appears, a provision of an Act relating to an offence applies to bodies corporate as well as to individuals.(2) On arraignment, a body corporate may enter a plea of “guilty” or “not guilty” by means of writing signed by its representative.(3) If no such plea is entered the court is to enter a plea of “not guilty”, and the trial is to proceed as though the body corporate had pleaded “not guilty”.(4) A representative of a body corporate need not be appointed under the body’s seal.(5) A written statement that—(a) purports to be signed by one of the persons having the management of the affairs of the body corporate, andis admissible as evidence that the named person has been so appointed.(b) contains a statement to the effect that a named person is the body’s representative,s 10 (previously s 59): Renumbered 2001 No 119, Sch 1 [15].
11 Description of offences
The description of any offence in the words of an Act or statutory rule or other document creating the offence, or in similar words, is sufficient in law.s 11: Ins 2001 No 119, Sch 1 [17].
12 Short description of certain offences
(1) For the purposes of this or any other Act, a summary offence, or an indictable offence that may be dealt with summarily, is taken to be sufficiently stated or described if it is stated or described by the use of a short expression that describes the offence in general terms.(2) This section applies to a statement or description of an offence in any court attendance notice, warrant, subpoena, notice, order or other document.(3) Nothing in this section affects any other method of stating or describing an offence.(4) Nothing in this section affects any requirement made by or under this Act in relation to the form of a court attendance notice or any other document.s 12: Ins 2001 No 119, Sch 1 [17].
13 Venue in indictment
(1) New South Wales is a sufficient venue for all places, whether the indictment is in the Supreme Court or any other court having criminal jurisdiction.(2) However, some district or place within, at or near which the offence is charged to have been committed must be mentioned in the body of the indictment.(3) Any such district or place is to be taken to be in New South Wales, and within the jurisdiction of the court, unless the contrary is shown.s 13 (previously s 60): Renumbered 2001 No 119, Sch 1 [19].
A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons.s 14 (previously s 55): Renumbered 2001 No 119, Sch 1 [20].
14A Proceedings for offences commenced by officers of ICAC or LECC
(1) An officer of ICAC does not have the power to commence proceedings for an offence unless the Director of Public Prosecutions has advised the Independent Commission Against Corruption in writing that the proceedings may be commenced by an officer of ICAC.(2) An officer of LECC does not have the power to commence proceedings for an offence unless the Director of Public Prosecutions has advised the Law Enforcement Conduct Commission in writing that the proceedings may be commenced by an officer of LECC.(3) For the purposes of subsections (1) and (2), the Director of Public Prosecutions may liaise with the Independent Commission Against Corruption or Law Enforcement Conduct Commission, but is to act independently in deciding to advise that proceedings for the offence may be commenced.(4) In this section—officer of ICAC means a person acting in the capacity of a Commissioner, an Assistant Commissioner or officer of the Independent Commission Against Corruption.officer of LECC means an officer of the Law Enforcement Conduct Commission (within the meaning of the Law Enforcement Conduct Commission Act 2016).s 14A: Ins 2015 No 67, Sch 1.8 [2]. Am 2016 No 61, Sch 6.11 [1] [2]; 2016 No 65, Sch 3.2.
Part 2 Indictments and other matters
ch 2, pt 2, hdg: Ins 2001 No 119, Sch 1 [21].
15 Application of Part
(1) This Part applies, to the extent that it is capable of being applied, to all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with.(2) In this Part—indictment includes a court attendance notice or any other process or document by which criminal proceedings are commenced.s 15 (previously s 57): Renumbered 2001 No 119, Sch 1 [22]. Am 2001 No 119, Sch 1 [23]; 2003 No 82, Sch 2.9 [1].
16 Certain defects do not affect indictment
(1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds—(a) for the improper insertion or omission of the words “as appears by the record”, “with force and arms”, “against the peace”, “against the form of the statute” or “feloniously”,(b) for want of an averment of any matter unnecessary to be proved or necessarily implied,(c) for want of a proper or perfect venue or a proper or formal conclusion,(d) for want of any additional accused person or for any imperfection relating to any additional accused person,(e) for want of any statement of the value or price of any matter or thing, or the amount of damage or injury, if such value, price or amount is not of the essence of the offence,(f) for designating any person by the name of his or her office, or other descriptive appellation, instead of by his or her proper name,(g) except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly,(h) for stating an offence to have been committed on a day subsequent to the finding of the indictment, on an impossible day or on a day that never happened,(i) if the indictment was signed by an Australian legal practitioner who has been instructed to prosecute the proceedings to which the indictment relates on behalf of the Director of Public Prosecutions—for failure by the Director to authorise the Australian legal practitioner by order in writing under section 126 (2) to sign indictments for and on behalf of the Director.(2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of—(a) any alleged defect in it in substance or in form, or(b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant.Note—An adjournment may be obtained under section 40 where there is a variance between the evidence adduced and the offence charged in the application or order.s 16 (previously s 58): Renumbered 2001 No 119, Sch 1 [24]. Am 2001 No 119, Sch 1 [25]; 2003 No 40, Sch 1.10 [1]; 2005 No 75, Sch 1 [1]; 2006 No 120, Sch 3.7 [2] [3]; 2007 No 94, Sch 2.
17 When formal objections to be taken
(1) An objection to an indictment for a formal defect apparent on its face must be taken, by demurrer or motion to quash the indictment, before the jury is sworn.(2) The court before which the objection is taken may cause the indictment to be amended and, in that case, the trial is to proceed as if there had been no defect.ss 17–19 (previously ss 61–63): Renumbered 2001 No 119, Sch 1 [26].
18 Judgment on demurrer to indictment
The judgment against the accused person on demurrer is to be that the person “answer over” to the charge.ss 17–19 (previously ss 61–63): Renumbered 2001 No 119, Sch 1 [26].
19 Traversing indictment
(1) No traverse is to be allowed, or trial postponed, or time to plead to the indictment given, unless the court so orders.(2) However, if the court is of the opinion that the accused person ought to be allowed time, either to prepare for his or her defence or for any other reason, the court is to postpone the trial on such terms as it considers fit.ss 17–19 (previously ss 61–63): Renumbered 2001 No 119, Sch 1 [26].
20 Amendment of indictment
(1) An indictment may not be amended after it is presented, except by the prosecutor—(a) with the leave of the court, or(b) with the consent of the accused.(2) This section does not affect the powers of the court under section 21.(3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.s 20 (previously s 63A): Renumbered 2001 No 119, Sch 1 [26]. Am 2003 No 40, Sch 1.10 [2]; 2003 No 82, Sch 2.9 [2].
21 Orders for amendment of indictment, separate trial and postponement of trial
(1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case.(2) If of the opinion—(a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, orthe court may order a separate trial of any count or counts of the indictment.(b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment,(3) If of the opinion that the postponement of an accused person’s trial is expedient as a consequence of it having amended an indictment or ordered a separate trial of a count, the court may make such order as appears necessary.(4) An order under this section may be made either before trial or at any stage during the trial.(5) The following provisions apply if an order is made under this section for a separate trial or for the postponement of a trial—(a) if the order is made during the trial, the court may order that the jury be discharged from giving a verdict—(i) on the count or counts in respect of which the trial is postponed, oras the case may be,(ii) on the indictment,(b) the procedure on the separate trial of a count, and the procedure on the postponed trial, are to be the same in all respects (if the jury has been discharged) as if the trial had not commenced,(c) subject to the Bail Act 2013, the court may commit the accused person to a correctional centre.(6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes.s 21 (previously s 64): Renumbered 2001 No 119, Sch 1 [26]. Am 2014 No 5, Sch 2.15 [1].
22 Amended indictment
(1) If any indictment is amended, a note of the order for amendment is to be endorsed on the indictment, and the indictment in its amended form is to be treated as the indictment for the purposes of the trial and all proceedings in connection with or consequent on the trial.(2) Any verdict or judgment given after the amendment of an indictment is to have the same force and effect as if the indictment had originally been in its amended form.(3) If it is necessary at any time to draw up a formal record of an indictment, the record may be drawn up in the words and form of the amended indictment, without notice of the fact of the amendment.ss 22–26 (previously ss 65–69): Renumbered 2001 No 119, Sch 1 [26].
23 Indictment may contain up to 3 similar counts
(1) Up to 3 counts may be inserted in the same indictment, against the same person, for distinct offences of the same kind committed against the same person.(2) This section does not apply if more than 6 months have elapsed between the first and last of the offences.(3) Nothing in this section affects the right of the Crown to insert alternative counts in any indictment.ss 22–26 (previously ss 65–69): Renumbered 2001 No 119, Sch 1 [26].
24 Accessories may be charged together in one indictment
Any number of accessories (whether before or after the fact) may be charged with substantive serious indictable offences in the same indictment, and may be tried together, even though the principal offender is not included in the indictment, not in custody or not amenable to justice.ss 22–26 (previously ss 65–69): Renumbered 2001 No 119, Sch 1 [26].
25 Indictment charging previous offence also
In an indictment against a person for an offence committed after the person was convicted of some previous offence (whether indictable or otherwise) it is sufficient, after charging the subsequent offence, to state that the accused person was (at a specified time and place) convicted of the previous offence, without particularly describing the previous offence.ss 22–26 (previously ss 65–69): Renumbered 2001 No 119, Sch 1 [26].
26 Description of written instruments
If—(a) an indictment relates to an instrument that is written or printed, or partly written and partly printed, orit is sufficient to describe the instrument by any name or designation by which it is usually known, or by its purport, without setting out a copy of the instrument, or otherwise describing the instrument, and without stating the value of the instrument.(b) it is necessary to make an averment in an indictment with respect to an instrument that is written or printed, or partly written and partly printed,ss 22–26 (previously ss 65–69): Renumbered 2001 No 119, Sch 1 [26].
27 Supreme Court rules may prescribe forms of indictments
(1) Without limiting the rule-making powers conferred by the Supreme Court Act 1970, rules may from time to time be made under that Act prescribing forms of indictments, records, informations, depositions, convictions, warrants and processes in all courts for any offence.(2) Any form prescribed by those rules is taken to be sufficient for the purpose, and to sufficiently state the offence, for which it is prescribed.s 27 (previously s 85): Renumbered 2001 No 119, Sch 1 [27].
Part 3 Criminal proceedings generally
ch 2, pt 3, hdg: Ins 2001 No 119, Sch 1 [28].
28 Application of Part and definition
(1) This Part applies, to the extent that it is capable of being applied, to all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with.(2) In this Part—Judge includes a Magistrate, a Children’s Court Magistrate, an Industrial Magistrate and any other person of a class prescribed by the regulations for the purposes of this definition.s 28: Ins 2001 No 119, Sch 1 [29]. Am 2007 No 92, Sch 4.5 [2]; 2008 No 107, Sch 29.4 [2]; 2016 No 48, Sch 2.13 [3].
29 When more than one offence may be heard at the same time
(1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances—(a) the accused person and the prosecutor consent,(b) the offences arise out of the same set of circumstances,(c) the offences form or are part of a series of offences of the same or a similar character.(2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances—(a) the accused persons and the prosecutor consent,(b) the offences arise out of the same set of circumstances,(c) the offences form or are part of a series of offences of the same or a similar character.(3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.s 29: Ins 2001 No 119, Sch 1 [29].
29A Tendency or coincidence—offences to be heard together
(1) A court must hear and determine together proceedings for 2 or more offences if—(a) the offences are alleged to have been committed by the same person, and(b) the offences are—(i) charged in the same indictment, or(ii) listed for hearing on the same day and at the same place, and(c) the prosecution has given notice that it intends to rely on tendency evidence or coincidence evidence that relates to more than 1 of the offences.(2) This section is subject to section 21(2).s 29A: Ins 2020 No 31, Sch 1.8[3].
30 Change of venue
In any criminal proceedings, if it appears to the court—(a) that a fair or unprejudiced trial cannot otherwise be had, orthe court may change the venue, and direct the trial to be held in such other district, or at such other place, as the court thinks fit, and may for that purpose make all such orders as justice appears to require.(b) that for any other reason it is expedient to do so,s 30 (previously s 13): Renumbered 2001 No 119, Sch 1 [30]. Am 2001 No 119, Sch 1 [31] [32].
31 Abolition of accused person’s right to make unsworn statement or to give unsworn evidence
Any rule of law, procedure or practice that permits a person who is charged with the commission of a criminal offence to make an unsworn statement or to give unsworn evidence in answer to the charge is abolished.s 31 (previously s 95): Renumbered 2001 No 119, Sch 1 [33].
32 Indemnities
(1) The Attorney General may, if of the opinion that it is appropriate to do so, grant a person an indemnity from prosecution (whether on indictment or summarily)—(a) for a specified offence, or(b) in respect of specified acts or omissions.(2) If the Attorney General grants such an indemnity, no proceedings may thereafter be instituted or continued against the person in respect of the offence or the acts or omissions.(3) Such an indemnity may be granted conditionally or unconditionally.(4) Such an indemnity may not be granted in respect of a summary offence that is not a prescribed summary offence, unless the Attorney General has consulted the Minister administering the enactment or instrument under which the offence is created.s 32: Renumbered 2001 No 119, Sch 1 [34].
33 Undertakings
(1) The Attorney General may, if of the opinion that it is appropriate to do so, give to a person an undertaking that—(a) an answer that is given, or a statement or disclosure that is made, by the person in the course of giving evidence in specified proceedings, orbeing proceedings for an offence against a law of the State (whether an indictable offence or a summary offence), will not be used in evidence against the person.(b) the fact that the person discloses or produces a document or other thing in specified proceedings,(2) If the Attorney General gives such an undertaking—(a) an answer that is given, or a statement or disclosure that is made, by the person in the course of giving evidence in the specified proceedings, oris not admissible in evidence against the person in any civil or criminal proceedings, other than proceedings in respect of the falsity of evidence given by the person.(b) the fact that the person discloses or produces a document or other thing in the specified proceedings,(3) Such an undertaking may be given conditionally or unconditionally.(4) Such an undertaking may not be given in respect of a summary offence that is not a prescribed summary offence, unless the Attorney General has consulted the Minister administering the enactment or instrument under which the offence is created.ss 33 (previously ss 46, 47): Renumbered 2001 No 119, Sch 1 [34].
34 Practice as to entering the dock
The Judge may order the accused person to enter the dock or other place of arraignment or may allow him or her to remain on the floor of the court, and in either case to sit down, as the Judge considers appropriate.s 34: Renumbered 2001 No 119, Sch 1 [35].
35 Right to inspect depositions on trial
An accused person is entitled on his or her trial to inspect, without fee, all depositions taken against the person and returned to, or held by, the court before which he or she is on trial.ss 35 (previously ss 93, 94): Renumbered 2001 No 119, Sch 1 [35].
36 Representation and appearance
(1) A prosecutor or accused person may appear personally or by an Australian legal practitioner or other person empowered by an Act or other law to appear for the prosecutor or accused person.(2) A prosecutor who is a police officer may appear personally or by a person permitted by subsection (1) or by a police prosecutor.s 36: Ins 2001 No 119, Sch 1 [37]. Am 2006 No 120, Sch 3.7 [1].
36A Representation and appearance in penalty notice matters
(1) In any criminal proceedings relating to an offence for which a penalty notice was issued under this or any other Act, the prosecutor of the offence may be represented and appear by a police prosecutor.(2) Nothing in this section—(a) requires a police prosecutor to represent or appear for any person, or(b) prevents any person from appearing personally, or being represented and appearing by an Australian legal practitioner or other person empowered by an Act or other law to appear for the person, in any proceedings.s 36A: Ins 2008 No 40, Sch 2.1.
37 Conduct of case
(1) The prosecutor’s case may be conducted by the prosecutor or by the prosecutor’s Australian legal practitioner or any other person permitted to appear for the prosecutor (whether under this or any other Act).(2) The accused person’s case may be conducted by the accused person or by the accused person’s Australian legal practitioner or any other person permitted to appear for the accused person (whether under this or any other Act).s 37: Ins 2001 No 119, Sch 1 [37]. Am 2006 No 120, Sch 3.7 [4].
38 Hearing procedures to be as for Supreme Court
In any proceedings for an offence (other than in the Supreme Court for an indictable offence), the procedures and practice for the examination and cross-examination of witnesses, and the right to address the court on the case in reply or otherwise, are, as far as practicable, to be conducted in accordance with Supreme Court procedure for the trial of an indictable offence.ss 38–41: Ins 2001 No 119, Sch 1 [37].
39 Recording of evidence
(1) The evidence of each witness in criminal proceedings must be recorded.(2) Rules may be made for or with respect to the manner in which the evidence may be recorded and the authentication of evidence or of transcripts of evidence given in proceedings.ss 38–41: Ins 2001 No 119, Sch 1 [37].
40 Adjournments generally
(1) A court may at any stage of criminal proceedings adjourn the proceedings generally, or to a specified day, if it appears to the court necessary or advisable to do so.(2) An adjournment may be in such terms as the court thinks fit.(3) A matter that is adjourned generally must be listed before the court or a registrar not later than 2 years after the adjournment.(4) Without limiting subsection (1), a court may, at the request of an accused person, adjourn criminal proceedings if it appears to the court that a variance between any process or document by which the proceedings were commenced and the evidence adduced in respect of the offence charged in that process or document is such that the accused person has been misled by the variance.ss 38–41: Ins 2001 No 119, Sch 1 [37].
41 How accused person to be dealt with during adjournment
(1) A court may, if bail is not dispensed with or granted to an accused person for the period of an adjournment, remand the accused person to a correctional centre or other place of security during the adjournment.(2) The warrant of commitment may be signed by any Judge or authorised officer.(3) A Judge may at any time, by written notice to the parties, shorten or end an adjournment if the accused person is not in custody.ss 38–41: Ins 2001 No 119, Sch 1 [37].
42 Witnesses in mitigation
(1) After convicting an accused person of an offence, and before passing sentence, the court may summon witnesses and examine them on oath in respect of any matter in mitigation of the offence.(2) The court may do so on application made by or on behalf of the Crown or by or on behalf of the accused person.s 42 (previously s 100): Renumbered 2001 No 119, Sch 1 [38].
43 Restitution of property
(1) In any criminal proceedings in which it is alleged that the accused person has unlawfully acquired or disposed of property, the court may order that the property be restored to such person as appears to the court to be lawfully entitled to its possession.(2) Such an order may be made whether or not the court finds the person guilty of any offence with respect to the acquisition or disposal of the property.(3) Such an order may not be made in respect of—(a) any valuable security given by the accused person in payment of a liability to which the person was subject when the payment was made, or(b) any negotiable instrument accepted by the accused person as valuable consideration in circumstances in which the person had no notice, or cause to suspect, that the instrument had been dishonestly come by.s 43: Renumbered 2001 No 119, Sch 1 [39].
44 When case not to be proceeded with: accused person to be released from custody
(1) On deciding that no further proceedings are to be taken with respect to a person who is in custody on remand, whether or not the person has been committed for trial, the Attorney General or Director of Public Prosecutions may cause a certificate to that effect, in the form prescribed by the regulations, to be delivered to the Supreme Court.(2) On receipt of such a certificate, the Supreme Court may, by order, direct that the person to whom the certificate relates be released from custody.ss 44 (previously ss 126, 127): Renumbered 2001 No 119, Sch 1 [39].
Chapter 3 Indictable procedure
ch 3, hdg: Ins 2001 No 119, Sch 1 [40].
Part 1 Preliminary
ch 3, pt 1, hdg: Ins 2001 No 119, Sch 1 [40].
45 Application of Chapter and definitions
(1) This Chapter applies to or in respect of proceedings for indictable offences (other than indictable offences being dealt with summarily).(2) In this Chapter—Judge includes a Magistrate.Magistrate includes a Children’s Court Magistrate and any other person of a class prescribed for the purposes of this definition.registrar means, for the purposes of Part 2—(a) in the case of committal proceedings before a Local Court Magistrate, a registrar of the Local Court, or(b) in the case of committal proceedings before a Children’s Court Magistrate, the Children’s Registrar appointed under the Children’s Court Act 1987.s 45: Ins 2001 No 119, Sch 1 [41]. Am 2007 No 94, Sch 1.28 [3]; 2008 No 107, Sch 29.4 [3].
46 Jurisdiction of courts
(1) The Supreme Court has jurisdiction in respect of all indictable offences.(2) The District Court has jurisdiction in respect of all indictable offences, other than such offences as may be prescribed by the regulations for the purposes of this section.s 46 (previously s 11): Renumbered 2001 No 119, Sch 1 [42].
Part 2 Committal proceedings
ch 3, pt 2: Ins 2001 No 119, Sch 1 [43].
Division 1 Commencement of proceedings
ch 3, pt 2, div 1: Ins 2001 No 119, Sch 1 [43].
47 Commencement of committal proceedings by court attendance notice
(1) Committal proceedings for an offence are to be commenced by the issue and filing of a court attendance notice in accordance with this Division.(2) A court attendance notice may be issued in respect of a person if the person has committed or is suspected of having committed an offence.(3) A court attendance notice may be issued in respect of any offence for which proceedings may be taken in this State, including an offence committed elsewhere than in this State.(4) Nothing in this Part affects any law or practice relating to indictments presented or filed in the Supreme Court or the District Court by the Attorney General or the Director of Public Prosecutions.(5) If an Act or a statutory rule provides for committal proceedings to be commenced otherwise than by issuing and filing a court attendance notice, the proceedings may be commenced in accordance with this Act.s 47: Ins 2001 No 119, Sch 1 [43].
48 Commencement of proceedings by police officer or public officer
If a police officer or public officer is authorised under section 14 of this Act or under any other law to commence committal proceedings, the officer may commence committal proceedings for an offence against a person by issuing a court attendance notice and filing the notice in accordance with this Division.s 48: Ins 2001 No 119, Sch 1 [43]. Am 2006 No 107, Sch 1.11 [2].
49 Commencement of private prosecutions
(1) If a person other than a police officer or public officer is authorised under section 14 of this Act or under any other law to commence committal proceedings against a person for an offence, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division.(2) A registrar must not sign a court attendance notice if—(a) the registrar is of the opinion that the notice does not disclose grounds for the proceedings, or(b) the registrar is of the opinion that the notice is not in the form required by or under this Act, or(c) the registrar is of the opinion that a ground for refusal set out in the rules applies to the notice.(3) If a registrar refuses to sign a court attendance notice proposed to be issued by any such person, the question of whether the court attendance notice is to be signed and issued is to be determined by a Magistrate on application by the person.s 49: Ins 2001 No 119, Sch 1 [43]. Am 2006 No 107, Sch 1.11 [3].
50 Form of court attendance notice
(1) A court attendance notice must be in writing and be in the form prescribed by the rules.(2) The rules may prescribe one or more forms of court attendance notice.(3) A court attendance notice must do the following—(a) describe the offence,(b) briefly state the particulars of the alleged offence,(c) contain the name of the prosecutor,(d) require the accused person to appear before the Magistrate at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail,(e) state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person.(4) The rules may prescribe additional matters to be included in court attendance notices.(5) A court attendance notice may describe an offence, act or other thing in any way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment.s 50: Ins 2001 No 119, Sch 1 [43]. Am 2002 No 99, Sch 1.2 [1].
51 (Repealed)
s 51: Ins 2001 No 119, Sch 1 [43]. Rep 2002 No 99, Sch 1.2 [2].
52 Service of court attendance notices
(1) A court attendance notice issued by a police officer must be served by a police officer or prosecutor in accordance with the rules.(2) A court attendance notice issued by a public officer must be served by a police officer, public officer or other person prescribed by the rules, in accordance with the rules.(3) A court attendance notice issued by a person other than a police officer or public officer must be served by a person prescribed by the rules in accordance with the rules.(4) A copy of a court attendance notice must be filed in the registry of a court in accordance with the rules.(5) (Repealed)s 52: Ins 2001 No 119, Sch 1 [43]. Am 2004 No 68, Sch 6 [1] [2]; 2006 No 107, Sch 1.11 [4] [5].
53 When proceedings commence
(1) All proceedings are taken to have commenced on the date on which a court attendance notice is filed in the registry of a relevant court in accordance with this Division.(2) (Repealed)(3) Nothing in this section affects any other Act or law under which proceedings are taken to have commenced on another date.s 53: Ins 2001 No 119, Sch 1 [43]. Am 2006 No 107, Sch 1.11 [6].
54 Attendance of accused person at proceedings
(1) A person who issues a court attendance notice may, at any time after the notice is issued and before the date on which the accused person is required to first attend before a Magistrate for the hearing of committal proceedings, apply for a warrant to arrest the accused person.(2) An authorised officer may, when a court attendance notice is issued by the registrar, or filed in the court, or at any time after then and before the matter is first before a Magistrate, issue a warrant to arrest the accused person if the authorised officer is satisfied there are substantial reasons to do so and that it is in the interests of justice to do so.(3) The rules may make provision for or with respect to matters that may be taken into account by an authorised officer in determining whether to issue a warrant under this section.(3A) If an accused person is not present at the day, time and place set down for the hearing of committal proceedings (including any day to which proceedings are adjourned), or absconds from the committal proceedings, the Magistrate may issue a warrant to arrest the accused person if the Magistrate is satisfied there are substantial reasons to do so and that it is in the interests of justice to do so.(4) A Magistrate or authorised officer before whom an accused person is brought on arrest on a warrant issued under this section may, if bail is not dispensed with or granted, issue a warrant—(a) committing the accused person to a correctional centre or other place of security, and(b) ordering the accused person to be brought before a Magistrate at the date, time and place specified in the order.(5) The Magistrate or authorised officer must give notice of the date, time and place to the prosecutor.s 54: Ins 2001 No 119, Sch 1 [43]. Am 2002 No 130, Sch 6 [1].
Division 2 Committal proceedings generally
ch 3, pt 2, div 2: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
55 Outline of committal proceedings steps
Subject to this Part, the steps for committal proceedings are generally as follows—(a) committal proceedings are commenced by the issuing and filing of a court attendance notice,(b) a brief of evidence is served on the accused person by the prosecutor,(c) a charge certificate setting out the offences that are to be proceeded with is filed in the Local Court and served by the prosecutor on the accused person,(d) if the accused person is represented, 1 or more case conferences are held by the prosecutor and the legal representative for the accused person,(e) if the accused person is represented, a case conference certificate is filed in the Local Court,(f) the accused person pleads guilty or not guilty to each offence being proceeded with and the Magistrate commits the accused person for trial (if the accused person pleads not guilty) or for sentence (if the accused person pleads guilty).s 55: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
56 Magistrate to conduct committal proceedings
(1) Committal proceedings are to be conducted by a Magistrate.(2) A Magistrate may fix days for the purpose of taking steps or doing other things in committal proceedings.s 56: Ins 2001 No 119, Sch 1 [43]. Am 2010 No 135, Sch 12.2 [1]. Subst 2017 No 55, Sch 1 [3].
57 Committal proceedings to be heard in open court
(1) Committal proceedings are to be heard as if in open court.(2) This section is subject to any other Act or law.(3) For the purpose only of facilitating the use of an electronic case management system established under the Electronic Transactions Act 2000 in committal proceedings, the hearing of a matter may be conducted in the absence of the public, with the consent of the parties to the proceedings concerned, if the matter—(a) arises after the first appearance of the accused person in committal proceedings, and(b) is of a procedural nature, and(c) does not require the resolution of a disputed issue, and(d) does not involve a person giving oral evidence.s 57: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
58 Application of other procedural provisions to committal proceedings
The following provisions of this Act apply, subject to any necessary modifications and to any provision of this Part, to committal proceedings conducted by a Magistrate in the same way as they apply to proceedings for offences before the Local Court—(a) sections 30, 36, 37, 38, 39, 40, 41 and 44,(b) Part 3 (Attendance of witnesses and production of evidence in lower courts) of Chapter 4,(c) Part 4 (Warrants) of Chapter 4.Note—The Chief Magistrate may issue practice notes about the practice or procedure to be followed in criminal proceedings (see sections 26 and 27 of the Local Court Act 2007).s 58: Ins 2001 No 119, Sch 1 [43]. Am 2014 No 5, Sch 2.15 [1]. Subst 2017 No 55, Sch 1 [3].
59 Explanation of committal process and discount for guilty plea
(1) The Magistrate in committal proceedings must give the accused person—(a) if the accused person is not represented by an Australian legal practitioner in the committal proceedings—an oral and written explanation of the following matters—(i) the committal process under this Part, including charge certification and committal for trial or sentence,(ii) the scheme under Part 3 of the Crimes (Sentencing Procedure) Act 1999 for the sentence discount that applies in the case of a guilty plea, or(b) if the accused person is so represented—(i) a written explanation of the committal process under this Part, including charge certification, case conferences and committal for trial or sentence, and(ii) an oral and written explanation of the scheme under Part 3 of the Crimes (Sentencing Procedure) Act 1999 for the sentence discount that applies in the case of a guilty plea.(2) The explanations must be given—(a) if a case conference is required to be held, after the charge certificate is filed and before the first day on which a case conference is held, or(b) in any other case, after the charge certificate is filed and before the day on which the accused person is committed for trial or sentence.(3) The explanations are to include the matters prescribed by the regulations for the purposes of this section.(4) The Magistrate is not required to give an explanation of the scheme for the sentence discount in a case concerning an offence under a law of the Commonwealth.(5) A failure by a Magistrate to comply with this section does not affect the validity of anything done or omitted to be done by the Magistrate or any other person in or for the purposes of the committal proceedings.s 59: Ins 2001 No 119, Sch 1 [43]. Am 2007 No 94, Sch 2. Subst 2017 No 55, Sch 1 [3]. Am 2019 No 20, Sch 1.10[4] [5].
60 Application of Drug Court proceedings
An accused person may be dealt with under the Drug Court Act 1998 at any stage of committal proceedings despite any requirement of this Part.s 60: Ins 2001 No 119, Sch 1 [43]. Am 2014 No 83, Sch 1 [2]. Subst 2017 No 55, Sch 1 [3].
Division 3 Disclosure of evidence
ch 3, pt 2, div 3: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
61 Requirement to disclose evidence
(1) The prosecutor must, after the commencement of committal proceedings and on or before any day specified by order by the Magistrate for that purpose, serve or cause to be served on the accused person a brief of evidence relating to each offence the subject of the proceedings.(2) This Division is subject to, and does not affect the operation of, section 15A of the Director of Public Prosecutions Act 1986 or any other law or obligation relating to the provision of material to an accused person by a prosecutor.Note—Examples of such a law are laws about privilege and immunity in relation to evidence.s 61: Ins 2001 No 119, Sch 1 [43]. Am 2014 No 5, Sch 2.15 [2]. Subst 2017 No 55, Sch 1 [3].
62 Matters to be disclosed in brief of evidence
(1) The brief of evidence must contain the following—(a) copies of all material obtained by the prosecution that forms the basis of the prosecution’s case,(b) copies of any other material obtained by the prosecution that is reasonably capable of being relevant to the case for the accused person,(c) copies of any other material obtained by the prosecution that would affect the strength of the prosecution’s case.(2) The material contained in the brief of evidence may be, but is not required to be, in the form required under Part 3A of Chapter 6 or in any particular form otherwise required for the material to be admissible as evidence.(3) The regulations may specify requirements for material included in a brief of evidence.(4) The Minister is to consult with the Minister for Police before a regulation is made under subsection (3).ss 62–64: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
63 Additional material to be disclosed
(1) The prosecutor must serve or cause to be served on the accused person copies of material obtained by the prosecutor and not included in the brief of evidence, if the material is of a kind required to be included in the brief of evidence.(2) The prosecutor must serve or cause the material to be served as soon as practicable after it is obtained by the prosecutor.ss 62–64: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
64 Exceptions to requirement to provide copies of material
(1) The prosecutor is not required to include a copy of a thing required to be provided under this Division, or to serve or cause it to be served, if—(a) it is impossible or impractical to copy the thing, or(b) the accused person agrees to inspect the thing in accordance with this section.(2) However, in that case the prosecutor is—(a) to serve or caused to be served on the accused person a notice specifying a reasonable time and place at which the thing may be inspected or other reasonable means by which the thing is to be provided for inspection, and(b) to allow the accused person a reasonable opportunity to inspect each thing referred to in the notice.ss 62–64: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
Division 4 Charge certificates
ch 3, pt 2, div 4: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
65 Prosecutors who may exercise charge certificate and case conference functions
The functions of a prosecutor under this Division and Division 5 (which relates to case conferences) may be exercised only by the following persons—(a) the Director of Public Prosecutions or the Attorney General,(b) in the case of committal proceedings to which this Division applies because of section 79 of the Judiciary Act 1903 of the Commonwealth, any of the following—(i) a person holding an equivalent office under the Commonwealth,(ii) a special prosecutor appointed under an Act of the Commonwealth,(iii) a person authorised under Commonwealth legislation to exercise the functions of a person referred to in subparagraph (i) or (ii),(iv) a person authorised by an arrangement made with a person referred to in subparagraph (i) or (ii) to exercise the functions of that person,(c) a legal representative of a person referred to in paragraph (a) or (b),(d) any other person prescribed by the regulations for the purposes of this section.Note—The effect of this provision is to prevent any other person from being able to complete the steps required to be taken by a prosecutor for the committal proceedings that are set out in Divisions 4 and 5 of this Part.s 65: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
66 Charge certificates
(1) A charge certificate is a document in the form prescribed by the regulations and signed by the prosecutor that—(a) relates to the offences specified in a court attendance notice for the committal proceedings, and(b) specifies the offences that are to be the subject of the proceedings against the accused person, and(c) sets out the details of each of those offences in a way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment, and(d) specifies any back up or related offences (within the meaning of section 165) that are proposed to be the subject of a certificate under section 166 (1) relating to charges against the accused person, and(e) if applicable, confirms that proceedings against the accused person for other specified offences are no longer being proceeded with, and(f) contains any other matters prescribed by the regulations for the purposes of this section.(2) The prosecutor must certify in the certificate that—(a) the evidence available to the prosecutor is capable of establishing each element of the offences that are to be the subject of the proceedings against the accused person, and(b) in the case of an offence other than an offence under the law of the Commonwealth or an offence prosecuted by a Commonwealth prosecutor, the prosecutor has received and considered a certificate under section 15A of the Director of Public Prosecutions Act 1986 relating to that offence.(2A) In subsection (2), Commonwealth prosecutor means a person referred to in section 65(b) or a legal representative of a person referred to in that paragraph.(3) Subsections (1) and (2) do not limit the matters that may be included by the regulations in the prescribed form of charge certificate.s 66: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3]; 2019 No 10, Sch 1.9 [1] [2].
67 Charge certificate must be filed
(1) A charge certificate must be filed by the prosecutor in the registry of the Local Court, and served or caused to be served on the accused person, not later than the day set by order by the Magistrate.(2) The day must—(a) be set after the service of the brief of evidence in the committal proceedings, and(b) be not later than 6 months after the first return date for a court attendance notice in the committal proceedings.Note—The first court appearance required by the court attendance notice may be before a registrar exercising certain functions of the court pursuant to rules of the court, or the functions of an authorised justice under the Bail Act 2013.(3) However, the Magistrate may set a day for the filing of a charge certificate that is later than 6 months after the first return date for a court attendance notice in the committal proceedings—(a) with the consent of the accused person, or(b) if it is in the interests of justice to do so.(4) In determining whether or not it is in the interests of justice to set a later day, the Magistrate is to consider the complexity of the matters the subject of the proceedings. This subsection does not limit the matters that may be considered by the Magistrate.(5) If the prosecutor determines that an offence other than an offence specified in the charge certificate filed by the prosecutor is to be the subject of the proceedings against the accused person, the prosecutor must file in the registry of the Local Court, and serve or cause to be served on the accused person, an amended charge certificate before the accused person is committed for trial or sentence.s 67: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3]. Am 2019 No 20, Sch 1.10[6].
68 Failure to file charge certificate
(1) This section applies if the prosecutor fails to file and serve, or cause to be served, a charge certificate before—(a) the day that is 6 months after the first return date for a court attendance notice in the committal proceedings, or(b) any later day set by the Magistrate for doing those things.(2) The Magistrate must—(a) discharge the accused person as to any offence the subject of the committal proceedings, or(b) if the Magistrate thinks it appropriate in the circumstances of the case, adjourn the committal proceedings to a specified time and place.(3) In determining what action to take, the Magistrate is to consider the interests of justice.(4) If a warrant has been issued for the arrest of the accused person as a result of a failure to appear at the committal proceedings—(a) a Magistrate is not required to take any action under this section until the accused person is brought before the Magistrate, and(b) the period of 6 months specified in subsection (1) (a) is taken to be extended by the number of days between the issue of the warrant and the day the accused person is so brought before the Magistrate.Note—The Magistrate may extend the time for filing a charge certificate at any time under section 67.s 68: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
Division 5 Case conferences
ch 3, pt 2, div 5: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
69 Exceptions to requirements for case conference procedures
This Division does not apply to an accused person in committal proceedings if the accused person—(a) is not, or ceases to be, represented by an Australian legal practitioner, or(b) pleads guilty to each offence that is being proceeded with and the pleas are accepted by the Magistrate before a case conference is held, or(c) is committed for trial under Division 7.ss 69–71: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
70 Case conferences to be held
(1) A case conference is to be held in accordance with this Division.(2) The principal objective of the case conference is to determine whether there are any offences to which the accused person is willing to plead guilty.(3) A case conference may also be used to achieve the following objectives—(a) to facilitate the provision of additional material or other information which may be reasonably necessary to enable the accused person to determine whether or not to plead guilty to 1 or more offences,(b) to facilitate the resolution of other issues relating to the proceedings against the accused person, including identifying key issues for the trial of the accused person and any agreed or disputed facts.(4) The case conference is to be held after the filing of the charge certificate by the prosecutor.(5) More than one case conference may be held.(6) A further case conference may be, but is not required to be, held after the filing of an amended charge certificate by the prosecutor.ss 69–71: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
71 Case conference procedures
(1) A case conference is to be held between the prosecutor and the accused person’s legal representative in the committal proceedings.(2) The initial case conference for the purposes of this Division must be held in person or by audio visual link. Any subsequent case conference may also be held by telephone.(3) The Magistrate may order that an initial case conference be held by telephone if the Magistrate is satisfied that there are exceptional circumstances that make it impracticable to hold the conference in person or by audio visual link.(4) The regulations may make provision for or with respect to case conferences, including the attendance of the accused person at a case conference.(5) In this section—audio visual link means facilities (including closed-circuit television or other electronic means of communication) that enable audio and visual communication between persons at different places.ss 69–71: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
72 Obligations of legal representative of accused
(1) The accused person’s legal representative is to seek to obtain the accused person’s instructions concerning the matters to be dealt with in the case conference before participating in the case conference.(2) The accused person’s legal representative must explain the following matters to the accused person before the case conference certificate is completed—(a) the effect of the scheme for the sentencing discount applied under Part 3 of the Crimes (Sentencing Procedure) Act 1999 for a plea of guilty to an offence,(b) the penalties applicable to the offences certified in the charge certificate and to any other offences the subject of offers made by the accused or the prosecutor in the committal proceedings,(c) the effect on the applicable penalty if the accused person were to plead guilty to any offence at different stages of proceedings for the offence.(3) Subsection (2) applies only in respect of an offence to which Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 applies.s 72: Ins 2001 No 119, Sch 1 [43]. Am 2006 No 120, Sch 3.7 [1]. Subst 2017 No 55, Sch 1 [3]. Am 2019 No 10, Sch 1.9 [3].
73 Joint accused
(1) If the accused person has been charged jointly with any other person with the offence concerned, a separate case conference is to be held for each of the co-accused. However, a joint case conference may be held for 2 or more co-accused with the consent of the prosecutor and each of the co-accused.(2) A joint case conference may be held only if a charge certificate has been filed for each of the co-accused.s 73: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
74 Case conference certificate must be completed and filed
(1) The Magistrate is to make an order setting the day on or before which the case conference certificate is to be filed.(2) If more than 1 case conference is held, the case conference certificate is to be filed after all the case conferences are completed.(3) The prosecutor and the legal representative of the accused person must ensure that a case conference certificate that complies with this Division is completed and signed on or before the day set by the Magistrate for filing the certificate.(4) The prosecutor must ensure that the case conference certificate is filed on or before the day set by the Magistrate.(5) A prosecutor or legal representative of an accused person is not required to comply with this section if all the offences to which the proceedings relate—(a) are to be dealt with summarily, or(b) are, for any other reason, not proceeding for committal by the Magistrate of the accused person for trial or sentence.s 74: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3]. Am 2018 No 25, Sch 1.7; 2019 No 10, Sch 1.9 [4].
75 Contents of case conference certificate
(1) The case conference certificate is to be in the form prescribed by the regulations and is to certify as to the following matters—(a) the offence or offences with which the accused person had been charged before the case conference and which the prosecution had specified in the charge certificate as offences that will be proceeding or are the subject of a certificate under section 166,(b) any offers by the accused person to plead guilty to an offence specified in the charge certificate or to different offences,(c) any offers by the prosecution to the accused person to accept guilty pleas to an offence specified in the charge certificate or to different offences,(d) whether the accused person or prosecution has accepted or rejected any such offers,(e) the offence or offences for which the prosecution will seek committal for trial or sentence,(f) any back up or related offence or offences (within the meaning of section 165) that are proposed to be the subject of a certificate under section 166 (1) relating to charges against the accused person,(g) if an offer made to or by the accused person to plead guilty to an offence has been accepted—details of the agreed facts on the basis of which the accused person is pleading guilty and details of the facts (if any) in dispute,(h) any offences with which the accused person has been charged to which the accused person has offered to plead guilty and agreed to ask the court to take into account under section 33 of the Crimes (Sentencing Procedure) Act 1999,(i) whether or not the prosecutor has notified the accused person of an intention to make a submission to the sentencing court that the discount for a guilty plea should not apply or should be reduced in relation to a particular offence with which the accused person is charged,(j) any other matters prescribed by the regulations for the purposes of this section.(2) A case conference certificate must also contain—(a) a declaration by the legal representative of the accused person that the legal representative has explained to the accused person the matters specified in section 72 (2), and(b) if the accused person does not intend to plead guilty to an offence, a declaration by the accused person that the legal representative has explained to the accused person the matters specified in section 72 (2).(3) A failure by an accused person to make a declaration under this section does not affect the validity of anything done or omitted to be done by any other person in or for the purposes of the committal proceedings.(4) A case conference certificate must certify as to all the matters of the kind referred to in subsection (1) that occur before the certificate is filed, including any written offers of a kind referred to in subsection (1) that were made by the accused person or the prosecutor, and served on the prosecutor or accused person, before or after any case conference was held.s 75: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
76 Failure to complete case conference obligations
(1) This section applies where the Magistrate is satisfied that a case conference certificate has not been filed by the day set by the Magistrate.(2) If a Magistrate is satisfied that the case conference certificate has not been filed because of an unreasonable failure by the prosecutor to participate in a case conference or to complete or file a case conference certificate, the Magistrate may—(a) discharge the accused person as to any offence the subject of the committal proceedings, or(b) adjourn the committal proceedings to a specified time and place.(3) If a Magistrate is satisfied that the case conference certificate has not been filed because of an unreasonable failure by the legal representative of the accused person to participate in a case conference or complete a case conference certificate, the Magistrate may—(a) commit the accused person for trial or sentence as if a case conference were not required to be held, or(b) adjourn the committal proceedings to a specified time and place.(4) In determining whether to take action under this section, the Magistrate is to consider the interests of justice.(5) This section does not apply if the case conference certificate has not been filed in the circumstances set out in section 74(5).s 76: Ins 2001 No 119, Sch 1 [43]. Am 2006 No 107, Sch 1.11 [7]. Subst 2007 No 6, Sch 1 [1]. Am 2008 No 74, Sch 2 [1]; 2009 No 56, Sch 3.3 [1]; 2014 No 83, Sch 1 [3]. Subst 2017 No 55, Sch 1 [3]. Am 2019 No 10, Sch 1.9 [5].s 76A: Ins 2014 No 83, Sch 1 [4]. Rep 2017 No 55, Sch 1 [3].
77 Further offers
(1) This section applies to an offer (a plea offer) if—(a) the offer is made by the accused person or the prosecutor after the filing of the case conference certificate in committal proceedings, and before the accused person is committed for trial or sentence, and(b) the offer is an offer of a kind that would have been required to be included in a case conference certificate if it had been made before the filing of the certificate, and(c) the offer is made in writing and served on the other party, and(d) the offer is filed in the registry of the Local Court.(2) A plea offer is, for all purposes, to be treated as if it formed part of the case conference certificate.(3) A plea offer is to be annexed to the case conference certificate in the committal proceedings.ss 77–79: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
78 Case conference certificate and other evidence not admissible in other proceedings
(1) Case conference material is not admissible in any proceedings before a court, tribunal or body.(2) However, a case conference certificate is not inadmissible in the following proceedings—(a) in relevant sentencing proceedings in accordance with Part 3 of the Crimes (Sentencing Procedure) Act 1999,(b) in relevant sentencing proceedings for an offence under Commonwealth law,(c) in proceedings for an appeal against a sentence under the Criminal Appeal Act 1912,(d) in proceedings for an appeal under the Crimes (Appeal and Review) Act 2001 on a question of law arising from an order made by a Magistrate in committal proceedings or an appeal under section 5 or Division 2 or 3 of Part 7 of that Act,(e) in proceedings after committal for sentence relating to an application by the accused person to reverse the person’s plea to not guilty,(f) in proceedings brought by a designated local regulatory authority against a lawyer under section 300 of the Legal Profession Uniform Law (NSW).(3) Any part of a case conference certificate cannot be required to be produced under a subpoena or request issued in any proceedings before any court, tribunal or body (other than in proceedings referred to in subsection (2)).(4) A sentencing court or a court determining an appeal against a sentence must refuse to admit evidence of any case conference certificate if any provisions of this Part with respect to the holding of the conference or the preparation of the certificate have not been complied with, unless it is satisfied that it is in the interests of justice to admit the evidence.(5) In this section—case conference material means—(a) a case conference certificate, or(b) evidence of anything said between the parties, or of any admission made, during a case conference, or(c) evidence of anything said between the parties, or of any admission made, during negotiations after a case conference concerning a plea to be made by, or offers made to or by, an accused person.ss 77–79: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
79 Confidentiality of case conference certificate matters
The matters that are specified in a case conference certificate are to be treated as confidential.Note—Matters in a plea offer are taken to be part of a case conference certificate (see section 77).ss 77–79: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].s 79A: Ins 2014 No 83, Sch 1 [5]. Rep 2017 No 55, Sch 1 [3].
80 Prohibition on publication of case conference material
(1) A person must not publish, or permit a person to publish, any case conference material.Maximum penalty—(a) in the case of an individual—20 penalty units, or(b) in the case of a body corporate—100 penalty units.(2) In this section—publish means disseminate or provide public access to one or more persons by means of the internet, radio, television or other media.s 80: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
81 Certain matters not taken to be pre-trial disclosures
The disclosure of any information during or in relation to a case conference held for the purposes of this Division or a plea offer is not, for the purposes of section 22A of the Crimes (Sentencing Procedure) Act 1999, a pre-trial disclosure.Note—Section 22A of the Crimes (Sentencing Procedure) Act 1999 enables a court to impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment, having regard to the degree to which the defence made pre-trial disclosures.s 81: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
Division 6 Examination of prosecution witnesses
ch 3, pt 2, div 6, hdg: Ins 2017 No 55, Sch 1 [3].
82 Magistrate may direct witness to attend
(1) The Magistrate may, on the application of the prosecutor or the accused person, direct the attendance at the committal proceedings of a person whose evidence is referred to in the brief of evidence provided under Division 3 or who has been referred to in other material provided by the prosecution to the accused person.(2) The Magistrate may hold a hearing to determine an application under this section and may require the prosecutor or the accused person to make submissions in relation to the application.(3) An application may be made only after the charge certificate has been filed in the committal proceedings.(4) The Magistrate must give the direction if an application is made by the accused person or the prosecutor and the other party consents to the direction being given.(5) In the case of any other application, the Magistrate may give a direction only if satisfied that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence. The regulations may make provision for or with respect to the determination of substantial reasons under this subsection.(6) For the purposes of determining whether to give a direction, the Magistrate may consider any material (whether or not it is in a form required for the material to be admissible as evidence).(7) A direction may be withdrawn only—(a) on the application, or with the consent, of the accused person, or(b) on the application of the prosecutor, if the accused person fails to appear on a day at which a person has been directed to appear to give evidence.s 82: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
83 Witnesses who cannot be directed to attend
(1) A direction may not be given so as to require the attendance of the complainant in committal proceedings for a prescribed sexual offence if the complainant is a cognitively impaired person (within the meaning of Part 6 of Chapter 6).(2) A direction may not be given so as to require the attendance of the complainant in committal proceedings for a child sexual assault offence if the complainant—(a) was under the age of 16 years—(i) on the earliest date on which, orany child sexual assault offence to which the proceedings relate was allegedly committed, and(ii) at the beginning of the earliest period during which,(b) is currently under the age of 18 years.(3) For the purposes of subsection (2)—child sexual assault offence means—(a) a prescribed sexual offence, or(b) an offence that, at the time it was committed, was a child sexual assault offence for the purposes of subsection (2), or(c) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a) or (b), or(d) an offence under any law of the Commonwealth that corresponds to an offence referred to in paragraph (a), (b) or (c) and that is prescribed by the regulations.complainant, in relation to any proceedings, means the person, or any of the persons, against whom a prescribed sexual offence with which the accused person stands charged in those proceedings is alleged to have been committed, and includes—(a) in relation to an offence under section 80E of the Crimes Act 1900, the person who is alleged to have been the subject of sexual servitude, and(b) in relation to an offence under section 91D, 91E or 91F of the Crimes Act 1900, the person under the age of 18 years who is alleged to have participated in an act of child prostitution, and(c) in relation to an offence under section 91G of the Crimes Act 1900, the person under the age of 18 years who is alleged to have been used for the production of child abuse material, and(d) in relation to an offence under any law of the Commonwealth that corresponds to an offence referred to in paragraph (a), (b) or (c) and that is prescribed by the regulations—the person referred to in the relevant paragraph.s 83: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3]. Am 2018 No 88, Sch 5 [2] [3].
84 Victim witnesses, sexual offence witnesses and vulnerable witnesses generally not to be directed to attend
(1) A direction may not be given so as to direct the attendance of an alleged victim of an offence involving violence that is the subject of the committal proceedings (even if the parties to the proceedings consent to the attendance) unless the Magistrate is satisfied that there are special reasons why the alleged victim should, in the interests of justice, attend to give oral evidence.(1A) In committal proceedings for an offence involving violence, a direction may not be given so as to direct a vulnerable person whose evidence is referred to in the brief of evidence to give evidence orally unless—(a) the Magistrate is satisfied that there are special reasons why the vulnerable person should, in the interests of justice, attend to give evidence, or(b) the prosecutor consents.(1B) In committal proceedings for a prescribed sexual offence, a direction may not be given so as to direct the attendance of a sexual offence witness (even if the parties to the proceedings consent to the attendance) unless the Magistrate is satisfied that there are special reasons why the sexual offence witness should, in the interests of justice, attend to give evidence.(2) The regulations may make provision for or with respect to the determination of special reasons under this section.(3) The following offences are offences involving violence for the purposes of this section—(a) a prescribed sexual offence,(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 (1) or (2) 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) an offence the elements of which include the commission of, or an intention to commit, an offence referred to in any of the above paragraphs,(h) an offence that, at the time it was committed, was an offence involving violence for the purposes of this section,(h1) an offence under any law of the Commonwealth that corresponds to an offence referred to in paragraph (a)–(h) and that is prescribed by the regulations,(i) any other offence that involves an act of actual or threatened violence and that is prescribed by the regulations for the purposes of this section.(4) An offence that may be dealt with summarily under Chapter 5 is not an offence involving violence for the purposes of this section.(5) Despite section 85 (4), the Magistrate must not allow a person who is an alleged victim of an offence involving violence to be cross-examined in respect of matters that were not the basis of the reasons for giving the direction, unless the Magistrate is satisfied that there are special reasons why, in the interests of justice, the person should be cross-examined in respect of those matters.s 84: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3]. Am 2018 No 88, Sch 5 [4]–[6].
85 Evidence of prosecution witness
(1) The evidence of a person who is directed to attend committal proceedings under this Division is to be given orally.(2) The person may be examined by the prosecutor.(3) The person may be cross-examined by the accused person and by the prosecutor.(4) The Magistrate 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 Magistrate is satisfied that there are substantial reasons why, in the interests of justice, the person should be examined in respect of those matters.s 85: Ins 2001 No 119, Sch 1 [43]. Am 2014 No 83, Sch 1 [6]. Subst 2017 No 55, Sch 1 [3].
86 Exceptions to oral evidence
(1) The evidence of a person who is directed to attend committal proceedings under this Division may be given by a written statement, or another kind of statement permitted to be tendered under Part 3A of Chapter 6, if—(a) the accused person and the prosecutor consent to the statement being admitted, or(b) the Magistrate is satisfied that there are substantial reasons why, in the interests of justice, the evidence should be given by a statement.Note—Sections 283C and 283D enable the use of recordings instead of written statements in the cases of witnesses who are vulnerable persons or in the case of domestic violence offences. Section 283G enables certain transcripts of evidence in other proceedings to be used instead of written statements.(2) The evidence of a person who is directed to attend committal proceedings under this Division may be given by a recorded statement in the circumstances permitted under Part 4B of Chapter 6.(3) This section has effect despite section 85.s 86: Ins 2001 No 119, Sch 1 [43]. Am 2006 No 107, Sch 1.11 [8]. Subst 2017 No 55, Sch 1 [3].
87 Evidence to be taken in presence of accused person
(1) The accused person must be present when evidence is taken under this Division, unless this Act or any other law permits the evidence to be taken in the accused person’s absence.(2) The Magistrate may excuse the accused person from attending during the taking of evidence if satisfied that the accused person will be represented by an Australian legal practitioner while the evidence is taken or if satisfied that the evidence is not applicable to the accused person.(3) A period during which the accused person is so excused is taken to be an adjournment for the purposes of dealing with the accused person.(4) Evidence may commence or continue to be taken in the absence of an accused person who has not been excused from attending if—(a) no good and proper reason is shown for the absence of the accused person, and(b) a copy of all relevant written statements, and copies of any proposed exhibits identified in the statements (or a notice relating to inspection of them), have been served on the accused person in accordance with this Part and the accused person has been informed of the time set by the Magistrate for taking of the evidence.s 87: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
88 Evidentiary effect of statements
(1) A written statement, or any other kind of statement permitted to be tendered under Part 3A of Chapter 6, is, if tendered by the prosecutor in accordance with this Division, admissible as evidence for the purposes of this Division to the same extent as if it were oral evidence to the like effect given under this Division by the same person.(2) Any document or other thing identified in any statement admitted as evidence under this Division is, if the document or other thing is produced as an exhibit in the committal proceedings, to be treated as if it had been identified before the Magistrate by the person who made the statement.(3) This section does not operate to make a statement admissible if it is not admissible because of another provision made by or under this Division.s 88: Ins 2001 No 119, Sch 1 [43]. Am 2002 No 99, Sch 1.2 [3]. Subst 2017 No 55, Sch 1 [3].
89 Statements must comply with requirements
(1) A written statement, or another kind of statement permitted to be tendered under Part 3A of Chapter 6, is not admissible as evidence for the purposes of this Division unless this Division, and any applicable requirements specified by or under that Part, are complied with in relation to the statement and any associated exhibits or documents.(2) A statement that is not admissible as evidence under this section may nevertheless be admitted as evidence if otherwise admissible in accordance with any rule or law of evidence.(3) A statement sought to be admitted for the purposes of this Division must be served on the accused person on or before the day set by the Magistrate for that purpose.s 89: Ins 2001 No 119, Sch 1 [43]. Am 2006 No 120, Sch 3.7 [5]. Subst 2017 No 55, Sch 1 [3].
90 Evidence not to be admitted
(1) The Magistrate must refuse to admit evidence sought to be adduced by the prosecutor under this Division if, in relation to that evidence, this Division or any applicable requirements specified by or under Part 3A of Chapter 6, have not been complied with by the prosecutor.(2) Despite subsection (1), the Magistrate may admit the evidence sought to be adduced if the Magistrate is satisfied that—(a) the non-compliance is trivial in nature, or(b) there are other good reasons to excuse the non-compliance, and admit the evidence, in the circumstances of the case.s 90: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
91 Magistrate may set aside requirements for statements
(1) In any committal proceedings, the Magistrate may dispense with all or any of the following requirements relating to statements or exhibits—(a) service of documents on the accused person,(b) provision to the accused person of a reasonable opportunity to inspect proposed exhibits,(c) specification of the age of the person who made a statement,(d) any requirement specified by the regulations under this Division or Part 3A of Chapter 6, if the regulations do not prohibit the Magistrate from dispensing with the requirement.(2) A requirement may be dispensed with under this section only on an application by the accused person or with the consent of the accused person.Note—Some of these requirements are made by or under Part 3A of Chapter 6.s 91: Ins 2001 No 119, Sch 1 [43]. Am 2003 No 27, Sch 8 [2]; 2003 No 40, Sch 1.10 [3]; 2005 No 25, Sch 1 [2]; 2006 No 88, Sch 1 [1] [2]; 2006 No 107, Sch 1.11 [9]–[11]; 2007 No 6, Sch 1 [2]; 2008 No 74, Sch 2 [2]; 2010 No 9, Sch 2 [1]. Subst 2017 No 55, Sch 1 [3].
92 False statements or representations
(1) A person who made a written statement tendered in committal proceedings under this Division 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.Maximum penalty—100 penalty units or imprisonment for 5 years, or both.(2) A person who made a representation given in evidence under this Division in the form of a recorded statement is guilty of an offence if the representation contains any matter that, at the time the representation was made, the person knew to be false, or did not believe to be true, in any material respect.Maximum penalty—100 penalty units or imprisonment for 5 years, or both.s 92: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
Division 7 Committal for trial where unfitness to be tried raised
ch 3, pt 2, div 7, hdg: Ins 2017 No 55, Sch 1 [3].
93 Committal for trial where unfitness to be tried raised
(1) The Magistrate may commit an accused person for trial for an offence if—(a) the question of the person’s unfitness to be tried for the offence is raised by the accused person, the prosecutor or the Magistrate, and(b) if the question is raised by the accused person or the prosecutor, the Magistrate is satisfied that it has been raised in good faith.(2) The question of the person’s unfitness to be tried for an offence may be raised at any time in the committal proceedings.(3) The Magistrate may require a psychiatric or other report relating to the accused person to be supplied to the Magistrate by the accused person or the prosecutor before committing a person for trial under this section.s 93: Ins 2001 No 119, Sch 1 [43]. Am 2006 No 88, Sch 1 [3]. Subst 2017 No 55, Sch 1 [3].
94 Committal may take place after charge certification
The Magistrate may commit an accused person for trial under this Division only—(a) if the charge certificate has been filed under Division 4 and a case conference is not required to be held in the committal proceedings, or(b) if the charge certificate has been filed under Division 4 and a case conference has not yet been held in the committal proceedings, or(c) if the case conference certificate for the proceedings has been filed in the committal proceedings.s 94: Ins 2001 No 119, Sch 1 [43]. Am 2010 No 88, Sch 2 [1]; 2012 No 95, Sch 1.7. Subst 2017 No 55, Sch 1 [3].
Division 8 Committal for trial or sentence
ch 3, pt 2, div 8, hdg: Ins 2017 No 55, Sch 1 [3].
95 Committal timing generally
(1) The Magistrate in committal proceedings is to commit the accused person for trial or sentence—(a) after the case conference certificate is filed under Division 5, or(b) if a case conference is not required to be held in the proceedings, after the charge certificate is filed under Division 4.Note—The Magistrate may, at any time, adjourn the proceedings where it appears to the Magistrate to be necessary or advisable to do so (see sections 40 and 58 (a)).(2) Despite subsection (1), a Magistrate may commit an accused person for sentence—(a) before a charge certificate is filed, if the prosecutor required to file the charge certificate advises the Magistrate that the prosecutor consents to the accused person being committed for sentence for that offence, or(b) if a charge certificate has been filed but no case conference has yet been held.(3) This section does not prevent the Magistrate from committing an accused person for trial under Division 7.(4) Before committing an accused person under this section, the Magistrate must ascertain whether or not the accused person pleads guilty to the offences that are being proceeded with.ss 95–99: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
96 Committal for trial
(1) The Magistrate must commit an accused person for trial for an offence unless the Magistrate accepts a plea of guilty to the offence by the accused person.(2) In the case of an accused person that is a corporation that is to be committed for trial, the Magistrate is to make an order authorising an indictment to be filed for the offence named in the order or for such other offence as the Attorney General or the Director of Public Prosecutions considers proper.ss 95–99: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
97 Guilty pleas and committal for sentence
(1) An accused person may at any time in committal proceedings plead guilty to an offence.(2) The Magistrate may accept or reject a guilty plea.(3) The Magistrate must not accept a guilty plea before the time at which an accused person may be committed for sentence under section 95.(4) Rejection of a guilty plea does not prevent an accused person from pleading guilty at a later stage in the committal proceedings.(5) If the guilty plea is rejected by the Magistrate, the committal proceedings continue as if the accused person had not pleaded guilty.(6) If the guilty plea is accepted, the Magistrate must commit the accused person to the District Court or the Supreme Court for sentence.ss 95–99: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
98 Committal of unrepresented persons
If an accused person is not represented by an Australian legal practitioner, the Magistrate must not commit the accused person for trial or sentence unless the Magistrate is satisfied that the accused person has had a reasonable opportunity to obtain legal representation for, or legal advice about, the committal proceedings.ss 95–99: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
99 Attorney General or Director of Public Prosecutions may direct that no further proceedings be taken
(1) If a guilty plea is accepted under this Part, the Attorney General or the Director of Public Prosecutions may, at their discretion, direct in writing that no further proceedings be taken against the accused person under this Part for the offence concerned.(2) No further proceedings may be taken against the accused person under this Part for the offence if a direction is given.Note—Section 44 requires the release of the accused person once a certificate is delivered to the Supreme Court after a direction is given.ss 95–99: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
Division 9 Procedure on committal
ch 3, pt 2, div 9, hdg: Ins 2017 No 55, Sch 1 [3].
100 Procedure applicable after committal for sentence
(1) All proceedings (whether under this or any other Act) relating to a committal for trial apply, so far as practicable, to a committal of an accused person after a guilty plea is accepted.(2) For the purposes of the venue or change of venue of consequent proceedings, a committal is taken to be a committal for trial.ss 100–104: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
101 Higher court may refer accused person back to Magistrate
(1) A Judge of the District Court or the Supreme Court before whom an accused person is brought under section 97 (6) may order that the committal proceedings be continued before a Magistrate if—(a) it appears to the Judge from the information or evidence given to or before the Judge that the facts in respect of which a court attendance notice was issued do not support the offence to which the accused person pleaded guilty, or(b) the prosecutor requests the order be made, or(c) for any other reason, the Judge thinks fit to do so.(2) On the resumption of the committal proceedings, the proceedings continue as if the person had not pleaded guilty.ss 100–104: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
102 Disposal of proceedings by higher court
(1) The District Court or the Supreme Court may proceed to sentence or otherwise deal with an accused person brought before the Court under section 97 as if the accused person had on arraignment at any sittings of the Court pleaded guilty to the offence on an indictment filed or presented by the Attorney General or the Director of Public Prosecutions.(2) An accused person who is sentenced or otherwise dealt with under this section is for the purposes of any Act or law (whether enacted before or after the commencement of this section) taken to be convicted on indictment of the offence concerned.ss 100–104: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
103 Change to not guilty plea in higher court
(1) If an accused person brought before the District Court or the Supreme Court under section 97 or this Division changes to not guilty the plea to the offence on which the accused person was committed to the Court, the Judge must direct that the accused person be put on trial for the offence.(2) On the direction being given, the accused person is taken to have been committed for trial for the offence. The Judge may make the same orders and do the same things (including dealing with the accused person) as a Magistrate can on committing an accused person for trial.(3) The Judge may give directions as to matters preliminary to the trial as the Judge thinks just.(4) A direction may not be given under subsection (1) if the offence is punishable by imprisonment for life, but the Judge may make an order under section 101.(5) Despite subsection (1), the Judge may make an order under section 101 instead of giving a direction under subsection (1), if of the opinion that such an order should be made.ss 100–104: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
104 Meaning of “accused person”
In this Division—accused person includes a person who has been committed for sentence to the District Court or Supreme Court.ss 100–104: Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [3].
105–108 (Repealed)
ss 105–108: Ins 2001 No 119, Sch 1 [43]. Rep 2017 No 55, Sch 1 [3].
Division 10 General procedures after committal
ch 3, pt 2, div 10, hdg (previously Chapter 3, Part 2, Div 6): Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [4].
ch 3, pt 2, div 10 (previously Chapter 3, Part 2, Div 6): Ins 2001 No 119, Sch 1 [43].
109 Accused person to be committed to correctional centre
(1) An accused person who is committed for trial or sentence in any committal proceedings must be committed to a correctional centre by the Magistrate until the sittings of the court at which the person is to be tried or dealt with or until the accused person is otherwise released by operation of law.(2) A Magistrate may order the issue of a warrant under this section.(3) An authorised officer may, for the purposes of this section, issue a warrant to arrest the accused person.(4) An authorised officer before whom an accused person is brought on arrest on a warrant issued under this section may issue a warrant—(a) committing the accused person to a correctional centre or other place of security, and(b) ordering the accused person to be brought before a court at the time and place specified in the order.Note—Part 4 of Chapter 4 sets out procedures for arrest warrants and warrants of commitment generally.The Bail Act 2013 provides for the circumstances when such a person must or may be granted bail rather than be held in prison.s 109: Ins 2001 No 119, Sch 1 [43]. Am 2014 No 5, Sch 2.15 [1].
110 Bail acknowledgment to be notified
If an accused person committed to a correctional centre on committal for trial or sentence is released on bail, the person who accepts the bail acknowledgment must transmit to the registrar of the relevant court—(a) the bail acknowledgment, and(b) any cash or other thing deposited in compliance with a bail condition.s 110: Ins 2001 No 119, Sch 1 [43]. Subst 2014 No 5, Sch 2.15 [3].
111 Papers to be sent to officer of higher court
(1) The registrar must, as soon as possible after the end of committal proceedings, give to the appropriate officer of the court to which an accused person is committed for trial or sentence the documents required by the rules.(2) The appropriate officer if an accused person is committed to the Supreme Court is the registrar of the Criminal Division of the Supreme Court.(3) The appropriate officer if an accused person is committed to the District Court is a registrar of the District Court.(4) The appropriate officer must deliver the documents to the proper officer of the Court at which the trial is to be held or the accused person dealt with, if the Judge presiding so directs.ss 111–113: Ins 2001 No 119, Sch 1 [43].
112 Responsibilities of appropriate officer
After the documents are transmitted and before the day of trial or the day on which the accused person is to be dealt with, the appropriate officer has, in relation to the documents, the same duties and is subject to the same liabilities as the Magistrate would have or be subject to before the transmission in relation to an order in the nature of certiorari or a rule or order instead of certiorari directed to the Magistrate.ss 111–113: Ins 2001 No 119, Sch 1 [43].
113 Copies of trial papers to be given to Director of Public Prosecutions
(1) The appropriate officer must, as soon as practicable after receiving a document transmitted by the registrar after an accused person is committed for trial or sentence, transmit a copy of the document to the Director of Public Prosecutions.(2) The copy must be transmitted by the most convenient method, having regard to the necessity to maintain the security of the document.ss 111–113: Ins 2001 No 119, Sch 1 [43].
114 Copies of transcripts of evidence
(1) An accused person who is committed for trial or sentence is entitled to obtain 1 copy of the transcript of any evidence taken at the committal proceedings, and any written statements tendered at the proceedings.(2) The rules may make provision for or with respect to the provision of a copy to the person and the regulations may make provision for or with respect to the fees for the provision of a copy.(3) The accused person is also entitled, in accordance with Division 3 of Part 4B of Chapter 6, to a copy of any recorded statement played at the proceedings.s 114: Ins 2001 No 119, Sch 1 [43]. Am 2005 No 28, Sch 5.11 [2]; 2014 No 83, Sch 1 [7]; 2017 No 55, Sch 1 [5].
115 Meaning of “accused person”
In this Division—accused person includes a person who has been committed for trial or sentence to the District Court or Supreme Court.s 115: Ins 2001 No 119, Sch 1 [43].
Division 11 Costs
ch 3, pt 2, div 11, hdg (previously Chapter 3, Part 2, Div 7, heading): Ins 2001 No 119, Sch 1 [43]. Subst 2017 No 55, Sch 1 [6].
ch 3, pt 2, div 11 (previously Chapter 3, Part 2, Div 7): Ins 2001 No 119, Sch 1 [43].
116 When costs may be awarded to accused persons
(1) A Magistrate may at the end of committal proceedings order that the prosecutor pay professional costs to the registrar, for payment to the accused person, if—(a) the accused person is discharged as to the subject-matter of the offence or the matter is withdrawn, or(b) the accused person is committed for trial or sentence for an indictable offence which is not the same as the indictable offence the subject of the court attendance notice.(2) The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable.(3) The order must specify the amount of professional costs payable.(4) If the accused person is discharged, the order for costs may form part of the order discharging the accused person.(5) 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 Magistrate.ss 116–120: Ins 2001 No 119, Sch 1 [43].
117 Limit on circumstances when costs may be awarded against a public officer
(1) Professional costs are not to be awarded in favour of an accused person in any committal proceedings unless the Magistrate is satisfied as to any one or more 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 prosecutor 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 accused person 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 prosecutor, it is just and reasonable to award costs.(2) This section does not apply to the awarding of costs against a prosecutor acting in a private capacity.(3) 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 Magistrate.ss 116–120: Ins 2001 No 119, Sch 1 [43].
118 Costs on adjournment
(1) A Magistrate may in any committal proceedings, at his or her discretion or on the application of the prosecutor or an accused person, order that one party pay costs if the matter is adjourned.(2) An order may be made only if the Magistrate is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delay of the party against whom the order is made.(3) An order may be made whatever the result of the proceedings.ss 116–120: Ins 2001 No 119, Sch 1 [43].
119 Content of costs orders
The order must specify the amount of costs payable or may provide for the determination of the amount at the end of the proceedings.ss 116–120: Ins 2001 No 119, Sch 1 [43].
120 Enforcement of costs orders
An order made by a Magistrate under this Division for the payment of costs is taken to be a fine within the meaning of the Fines Act 1996.ss 116–120: Ins 2001 No 119, Sch 1 [43].
Part 3 Trial procedures
ch 3, pt 3, hdg: Ins 2001 No 119, Sch 1 [44].
Division 1 Listing
ch 3, pt 3, div 1, hdg: Ins 2001 No 119, Sch 1 [44].
121 Definitions
In this Part—Criminal Listing Director means—(a) in relation to the Supreme Court—the public servant employed in the Supreme Court to make arrangements for the listing of criminal proceedings that are to be heard and determined before the Supreme Court, and(b) in relation to the District Court—the public servant employed in the District Court to make arrangements for the listing of criminal proceedings that are to be heard and determined before the District Court, and(c) any public servant authorised by a person referred to in paragraph (a) or (b), or in accordance with the regulations, to exercise any functions of the Criminal Listing Director.criminal proceedings means—(a) proceedings relating to the trial of a person before the Supreme Court or the District Court,(b) proceedings relating to the sentencing of a person by the Supreme Court or the District Court, or(c) proceedings relating to an appeal under the Crimes (Appeal and Review) Act 2001 to the District Court in its criminal jurisdiction.s 121 (previously s 40): Renumbered 2001 No 119, Sch 1 [45]. Am 2001 No 119, Sch 1 [46]; 2007 No 94, Sch 1.28 [4]; 2015 No 15, Sch 2.14 [2].
122 Listing
(1) The Criminal Listing Director is, subject to the regulations, to make arrangements for the listing of criminal proceedings that are to be heard and determined before the Supreme Court or the District Court.(1A) In making such listing arrangements, the Criminal Listing Director is responsible to—(a) the Chief Justice of the Supreme Court, in the case of criminal proceedings that are to be heard and determined before that Court, or(b) the Chief Judge of the District Court, in the case of criminal proceedings that are to be heard and determined before that Court.(2) The regulations may make provision for or with respect to the practice and procedure to be adopted for the listing of criminal proceedings that are to be heard and determined before the Supreme Court or the District Court.(3) Regulations made under this section prevail over rules of court, or any direction or order of a court, to the extent of any inconsistency.s 122: Renumbered 2001 No 119, Sch 1 [45].
123 Authority of Criminal Listing Director
It is the duty of all persons involved in criminal proceedings to abide, as far as practicable, by the arrangements made by the Criminal Listing Director in exercising functions under this Act.ss 123 (previously ss 41, 43): Renumbered 2001 No 119, Sch 1 [45].
124 Liaison
For the purpose of exercising the functions conferred on the Criminal Listing Director, the Criminal Listing Director may liaise with the Judges and officers of the Supreme Court and the District Court, prosecutors, accused persons and their Australian legal practitioners, and other persons involved in criminal proceedings.s 124 (previously s 44): Renumbered 2001 No 119, Sch 1 [45]. Am 2001 No 119, Sch 1 [47]; 2006 No 120, Sch 3.7 [6].
125 Certain matters not affected
(1) This Division does not authorise the Criminal Listing Director—(a) to fix or change the venue of proceedings, except with the consent of the accused person and the prosecutor, or(b) to determine when or where a court is to exercise its jurisdiction.(2) Nothing in this Division relating to the Criminal Listing Director affects—(a) the power of the Attorney General to fix or change the venue of any matter,(b) the power of a court to regulate proceedings before it,(c) the power of a court to adjourn any matter,(d) proceedings in the Court of Criminal Appeal,(e) proceedings in the Supreme Court in its summary jurisdiction, or(f) proceedings under the Bail Act 2013.s 125 (previously s 45): Renumbered 2001 No 119, Sch 1 [45]. Am 2001 No 119, Sch 1 [48] [49]; 2014 No 5, Sch 2.15 [1].
Division 2 Commencement and nature of proceedings
ch 3, pt 3, div 2, hdg: Ins 2001 No 119, Sch 1 [50].
126 Signing of indictments
(1) An indictment shall be signed—(a) by the Attorney General, the Solicitor General or the Director of Public Prosecutions, or(b) for and on behalf of the Attorney General or the Director of Public Prosecutions by—(i) a Crown Prosecutor,(ii) a Deputy Director of Public Prosecutions, or(iii) a person authorised under subsection (2) to sign indictments.(2) The Director of Public Prosecutions may, by order in writing, authorise a person to sign indictments for and on behalf of the Director.(3) It shall be presumed, in the absence of evidence to the contrary, that an indictment signed by a person for and on behalf of the Attorney General or the Director of Public Prosecutions was signed by a person authorised to do so.(4) A certificate signed by the Director of Public Prosecutions to the effect that a specified person was authorised during a specified period to sign indictments for and on behalf of the Director is admissible in evidence in any legal proceedings and is evidence of the matters certified.s 126 (previously s 50): Renumbered 2001 No 119, Sch 1 [51].
127 Manner of presenting indictments
The regulations and (subject to the regulations) the rules of court may make provision for or with respect to the manner of presenting indictments (including by the filing of the indictment in a court registry).s 127 (previously s 53A): Renumbered 2001 No 119, Sch 1 [52].
128 Directions as to indictments to be presented in District Court
(1) The Chief Justice of the Supreme Court may issue a practice note on behalf of the Supreme Court giving directions to prosecutors with respect to the classes of indictments that are to be presented to the District Court rather than the Supreme Court.(2) The Chief Justice may exempt a particular indictment from any such direction.(3) The Supreme Court may reject an indictment—(a) that is of a class to which any such direction applies, and(b) that was presented after the direction was given, and(c) that has not been exempted from the direction by the Chief Justice.(4) The rejection of an indictment does not preclude the presentation of a further indictment in accordance with any such direction.s 128 (previously s 52): Renumbered 2001 No 119, Sch 1 [53]. Am 2001 No 119, Sch 1 [54].
129 Time within which indictment to be presented
(1) In this section, relevant court, in relation to a matter, means the Supreme Court or the District Court before which the matter has been listed for trial or mention.(2) An indictment is to be presented within 4 weeks after the committal of the accused person for trial, except as provided by this section.(3) The time within which the indictment is to be presented may be extended—(a) by the regulations or (subject to the regulations) the rules of the relevant court, or(b) by order of the relevant court.(4) If an indictment is not presented within the time required by this section, the relevant court may—(a) proceed with the trial if an indictment has been presented, or(b) adjourn the proceedings, or(c) take such other action as it thinks appropriate in the circumstances of the case.(5) The prosecutor has no right to an adjournment merely because an indictment has not been presented.(6) The relevant court must, in exercising any power under this section, have regard to the fact that the Crown does not have a right of appeal if the accused person is acquitted.(7) This section does not affect the powers of the relevant court under section 21.s 129 (previously s 54): Renumbered 2001 No 119, Sch 1 [55]. Am 2001 No 119, Sch 1 [56].
130 Trial proceedings after presentation of indictment and before empanelment of jury
(1) In this section, court means the Supreme Court or District Court.(2) The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial.(3) If proceedings are held for the purpose of making any such orders after the indictment is presented to commence the trial and before the jury is empanelled—(a) the proceedings are part of the trial of the accused person, and(b) the accused person is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial.(4) Nothing in this section requires a jury to be empanelled if the accused person pleads guilty to an offence during proceedings to which this section applies.(5) This section applies to proceedings in respect of indictments presented after the commencement of this section.s 130 (previously s 56): Renumbered 2001 No 119, Sch 1 [57]. Am 2001 No 119, Sch 1 [58].
130A Pre-trial orders and orders made during trial bind trial Judge
(1) A pre-trial order made by a Judge in proceedings on indictment is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding.(2) If, on an appeal against a conviction for an offence in proceedings on indictment, a new trial is ordered, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to the proceedings from which the conviction arose is binding on the trial Judge hearing the fresh trial proceedings unless—(a) in the opinion of the trial Judge hearing the fresh trial proceedings, it would not be in the interests of justice for that order to be binding, or(b) that order is inconsistent with an order made on appeal.(3) If proceedings on indictment before a trial Judge are discontinued for any reason, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to those proceedings is binding on a trial Judge hearing any subsequent trial proceedings relating to the same offence as the discontinued proceedings unless, in the opinion of the trial Judge hearing the subsequent trial proceedings, it would not be in the interests of justice for the order to be binding.(4) In this section, pre-trial order means any order made or given after the indictment is first presented but before the empanelment of a jury for a trial.(5) To avoid doubt, this section extends to a ruling given on the admissibility of evidence.s 130A: Ins 2005 No 102, Sch 1 [1]. Subst 2009 No 112, Sch 1 [3]. Am 2014 No 88, Sch 1.5 [1] [2].
131 Trial by jury in criminal proceedings
Criminal proceedings in the Supreme Court or the District Court are to be tried by a jury, except as otherwise provided by this Part.s 131 (previously s 15): Renumbered 2001 No 119, Sch 1 [59].
132 Orders for trial by Judge alone
(1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a trial by judge order).(2) The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone.(3) If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order.(4) If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so.(5) Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness.(6) The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner.(7) The court may make a trial by judge order despite any other provision of this section or section 132A if the court is of the opinion that—(a) there is a substantial risk that acts that may constitute an offence under Division 3 of Part 7 of the Crimes Act 1900 are likely to be committed in respect of any jury or juror, and(b) the risk of those acts occurring may not reasonably be mitigated by other means.s 132 (previously s 16): Renumbered 2001 No 119, Sch 1 [59]. Am 2006 No 120, Sch 3.7 [1]. Subst 2010 No 135, Sch 12.2 [2].
132A Applications for trial by judge alone in criminal proceedings
(1) An application for an order under section 132 that an accused person be tried by a Judge alone must be made not less than 28 days before the date fixed for the trial in the Supreme Court or District Court, except with the leave of the court.(2) An application must not be made in a joint trial unless—(a) all other accused person apply to be tried by a Judge alone, and(b) each application is made in respect of all offences with which the accused persons in the trial are charged that are being proceeded with in the trial.(3) An accused person or a prosecutor who applies for an order under section 132 may, at any time before the date fixed for the accused person’s trial, subsequently apply for a trial by a jury.(4) Rules of court may be made with respect to applications under section 132 or this section.s 132A: Ins 2010 No 135, Sch 12.2 [2].
133 Verdict of single Judge
(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.s 133 (previously s 17): Renumbered 2001 No 119, Sch 1 [59].
Division 3 Case management provisions and other provisions to reduce delays in proceedings
ch 3, pt 3, div 3, hdg: Ins 2001 No 119, Sch 1 [60]. Subst 2009 No 112, Sch 1 [4].
134 Purpose
(1) The purpose of this Division is to reduce delays in proceedings on indictment by—(a) requiring certain pre-trial disclosure by the prosecution and the defence, and(b) enabling the court to undertake case management where suitable in those proceedings, whether on its own motion or on application by a party to the proceedings.(2) Case management measures that are available to the court under this Division include the ordering of pre-trial hearings, pre-trial conferences and further pre-trial disclosure. The court has a discretion in determining which (if any) of those measures are suitable in the proceedings concerned.s 134 (previously s 47A): Renumbered 2001 No 119, Sch 1 [61]. Subst 2009 No 112, Sch 1 [4].
135 Definitions
(1) In this Division—court means the Supreme Court or District Court.pre-trial conference means a conference held under section 140.pre-trial hearing means a hearing held under section 139.(2) In this Division, a reference to the accused person is to be read as including a reference to the Australian legal practitioner representing the accused person.s 135 (previously s 47B): Renumbered 2001 No 119, Sch 1 [61]. Am 2001 No 119, Sch 1 [62]. Subst 2009 No 112, Sch 1 [4].
136 Directions for conduct of proceedings
At the first mention of proceedings in the court before which the trial is proposed to be heard, the presiding Judge is to give directions with respect to the future conduct of the trial.s 136 (previously s 47C): Renumbered 2001 No 119, Sch 1 [61]. Am 2001 No 119, Sch 1 [63]; 2006 No 120, Sch 3.7 [2]; 2007 No 57, Sch 1 [2] [3]. Subst 2009 No 112, Sch 1 [4]. Am 2013 No 10, Sch 1 [1].
137 (Repealed)
s 137 (previously s 47D): Renumbered 2001 No 119, Sch 1 [61]. Am 2001 No 119, Sch 1 [63]; 2006 No 120, Sch 3.7 [3]. Subst 2009 No 112, Sch 1 [4]. Rep 2013 No 10, Sch 1 [2].
138 (Repealed)
s 138 (previously s 47E): Renumbered 2001 No 119, Sch 1 [61]. Am 2001 No 119, Sch 1 [63]. Subst 2009 No 112, Sch 1 [4]. Rep 2013 No 10, Sch 1 [3].
139 Pre-trial hearings
(1) At the first mention of proceedings in the court before which the trial is proposed to be heard or at any other time, the court may order the prosecutor and the accused person to attend one or more pre-trial hearings before the court so long as the time appointed for any such hearing occurs after the indictment has been presented or filed.(2) During a pre-trial hearing, the court may make such orders, determinations or findings, or give such directions or rulings, as it thinks appropriate for the efficient management and conduct of the trial.(3) Without limiting subsection (2), the court may take any or all of the following action under that subsection—(a) hear and determine an objection to the indictment,(b) order the holding of a pre-trial conference under section 140,(c) determine the timetable for pre-trial disclosure under section 141,(d) give a direction under section 145 (3),(e) give a ruling or make a finding under section 192A of the Evidence Act 1995 as if the trial had commenced,(f) hear and determine a submission that the case should not proceed to trial,(g) give a ruling on any question of law that might arise at the trial.(4) Despite any other provision of this Act, the court may make any order, determination or finding, or give any ruling, under this section on application by a party to the proceedings or on the court’s own initiative.(5) Any order, determination or finding made, or ruling given, by the court under this section is binding on the trial Judge in the proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order, determination, finding or ruling to be binding.(6) Except with the leave of the court, a party to proceedings may not raise a matter referred to in subsection (3) (a) or (e) at trial if a pre-trial hearing was held in the proceedings and the matter was not raised at the pre-trial hearing.(7) Leave is not to be granted under subsection (6) unless the court is of the opinion that it would be contrary to the interests of justice to refuse leave to raise the matter concerned.s 139 (previously s 47F): Renumbered 2001 No 119, Sch 1 [61]. Am 2001 No 119, Sch 1 [63]. Subst 2009 No 112, Sch 1 [4]. Am 2013 No 10, Sch 1 [4].
140 Pre-trial conferences
(1) At the first mention of proceedings in the court before which the trial is proposed to be heard or at any other time, the court may order that a pre-trial conference is to be held so long as the time appointed for any such conference occurs after the indictment has been presented or filed.(2) The court may order the holding of a pre-trial conference under this section on application of any party or on the court’s own initiative.(3) The court may make such an order only if the accused person will be represented by an Australian legal practitioner at the pre-trial conference.(4) The purposes of the pre-trial conference are as follows—(a) to determine whether the accused person and the prosecutor are able to reach agreement regarding the evidence to be admitted at the trial,(b) to identify the key issues in dispute between the accused person and the prosecutor at the trial, if any,(c) to identify any other issues relating to the proceedings against the accused person that require resolution prior to the commencement of the trial,(d) to identify or determine any other matter as directed by the court.(5) The following persons must be present during the pre-trial conference—(a) the prosecutor,(b) the Australian legal practitioner representing the accused person.(6) If the accused person has been charged jointly with any other person with the offence concerned, a joint pre-trial conference may be held in respect of two or more co-accused, but only with the consent of the prosecution and each of the co-accused concerned.(7) A requirement under this section that a person be present for the purposes of a pre-trial conference is taken to be satisfied if the person is present or available by way of an audio visual link or telephone.(8) Within 7 days after the holding of a pre-trial conference—(a) the prosecutor and the Australian legal practitioner who represented the accused person at the pre-trial conference must complete a pre-trial conference form, and(b) the prosecutor must file the pre-trial conference form with the court.(9) The pre-trial conference form—(a) is to indicate the areas of agreement and disagreement between the accused person and the prosecutor regarding the evidence to be admitted at the trial, and(b) is to be signed by the prosecutor and the Australian legal practitioner representing the accused person.(10) Except with the leave of the court, a party to proceedings may not object to the admission of any evidence at trial if the pre-trial conference form indicates that the parties have agreed that the evidence is not in dispute.(11) Leave is not to be granted under subsection (10) unless the court is of the opinion that it would be contrary to the interests of justice to refuse leave.s 140 (previously s 47G): Renumbered 2001 No 119, Sch 1 [61]. Am 2001 No 119, Sch 1 [63]. Subst 2009 No 112, Sch 1 [4]. Am 2020 No 31, Sch 1.8[4].
141 Mandatory pre-trial disclosure
(1) After the indictment is presented or filed in proceedings, the following pre-trial disclosure is required—(a) the prosecutor is to give notice of the prosecution case to the accused person in accordance with section 142,(b) the accused person is to give notice of the defence response to the prosecution’s notice in accordance with section 143,(c) the prosecution is to give notice of the prosecution response to the defence response in accordance with section 144.(2) Pre-trial disclosure required by this section is to take place before the date set for the trial in the proceedings and in accordance with a timetable determined by the court.Note—Practice notes issued by the court will guide determinations of the timetable for pre-trial disclosures and related matters.(3) The court may vary any such timetable if it considers that it would be in the interests of the administration of justice to do so.(4) The regulations may make provision for or with respect to the timetable for pre-trial disclosure.s 141 (previously s 47H): Renumbered 2001 No 119, Sch 1 [61]. Subst 2009 No 112, Sch 1 [4]; 2013 No 10, Sch 1 [5].
142 Prosecution’s notice
(1) For the purposes of section 141 (1) (a), the prosecution’s notice is to contain the following—(a) a copy of the indictment,(b) a statement of facts,(c) a copy of a statement of each witness whose evidence the prosecutor proposes to adduce at the trial,(c1) in accordance with Division 3 of Part 4B of Chapter 6, a copy of any recorded statement that the prosecutor intends to adduce at the trial,(c2) if the prosecutor proposes to adduce at the trial the transcript of an audio or a visual recording, a copy of that transcript,Note—This paragraph does not require the prosecution’s notice to contain copies of transcripts of recorded statements (within the meaning of section 289D) unless the prosecutor proposes to adduce such transcripts at the trial.(d) a copy of each document, evidence of the contents of which the prosecutor proposes to adduce at the trial,(e) if the prosecutor proposes to adduce evidence at the trial in the form of a summary, a copy of the summary or, where the summary has not yet been prepared, an outline of the summary,(f) a copy of any exhibit that the prosecutor proposes to adduce at the trial,(g) a copy of any chart or explanatory material that the prosecutor proposes to adduce at the trial,(h) if any expert witness is proposed to be called at the trial by the prosecutor, a copy of each report by the witness that is relevant to the case,(i) a copy of any information, document or other thing provided by law enforcement officers to the prosecutor, or otherwise in the possession of the prosecutor, that would reasonably be regarded as relevant to the prosecution case or the defence case, and that has not otherwise been disclosed to the accused person,(j) a list identifying—(i) any information, document or other thing of which the prosecutor is aware and that would reasonably be regarded as being of relevance to the case but that is not in the prosecutor’s possession and is not in the accused person’s possession, and(ii) the place at which the prosecutor believes the information, document or other thing is situated,(k) a copy of any information in the possession of the prosecutor that is relevant to the reliability or credibility of a prosecution witness,(l) a copy of any information, document or other thing in the possession of the prosecutor that would reasonably be regarded as adverse to the credit or credibility of the accused person,(m) a list identifying the statements of those witnesses who are proposed to be called at the trial by the prosecutor.(2) The regulations may make provision for or with respect to the form and content of a statement of facts for the purposes of this section.(3) In this section, law enforcement officer means a police officer, or an officer of one of the following agencies—(a) the Law Enforcement Conduct Commission,(b) the New South Wales Crime Commission,(c) the Independent Commission Against Corruption.s 142 (previously s 47I): Renumbered 2001 No 119, Sch 1 [61]. Am 2001 No 119, Sch 1 [63]. Subst 2009 No 112, Sch 1 [4]; 2013 No 10, Sch 1 [5]. Am 2014 No 83, Sch 1 [8]; 2016 No 61, Sch 6.11 [3]; 2018 No 47, Sch 1 [1].
143 Defence response
(1) For the purposes of section 141 (1) (b), the notice of the defence response is to contain the following—(a) the name of any Australian legal practitioner proposed to appear on behalf of the accused person at the trial,(b) the nature of the accused person’s defence, including particular defences to be relied on,(c) the facts, matters or circumstances on which the prosecution intends to rely to prove guilt (as indicated in the prosecution’s notice under section 142) and with which the accused person intends to take issue,(d) points of law which the accused person intends to raise,(e) notice of any consent that the accused person proposes to give at the trial under section 190 of the Evidence Act 1995 in relation to each of the following—(i) a statement of a witness that the prosecutor proposes to adduce at the trial,(ii) a summary of evidence that the prosecutor proposes to adduce at the trial,(f) a statement as to whether or not the accused person intends to give any notice under section 150 (Notice of alibi) or, if the accused person has already given such a notice, a statement that the notice has been given,(g) a statement as to whether or not the accused person intends to give any notice under section 151 (Notice of intention to adduce evidence of substantial mental impairment),(h) if any expert witness is proposed to be called at the trial by the accused person, a copy of each report by that witness that is relevant to the case and on which the accused person intends to rely,(i) notice as to whether the accused person proposes to raise any issue with respect to the continuity of custody of any proposed exhibit disclosed by the prosecutor,(j) notice of any significant issue that the accused person proposes to raise regarding the form of the indictment, severability of the charges or separate trials for the charges,(k) if the prosecutor disclosed an intention to adduce at the trial any audio or visual recording or the transcript of any audio or visual recording—(i) any request that the accused person has that the recording or transcript be edited (other than in circumstances to which subsection (2) (d) relates), and(ii) particulars sufficient to clearly identify the edits that the accused person requests.(2) The notice of the defence response is also to contain such of the following matters (if any) as the court orders—(a) (Repealed)(b) if the prosecutor disclosed an intention to adduce evidence at the trial that has been obtained by means of surveillance, notice as to whether the accused person proposes to require the prosecutor to call any witnesses to corroborate that evidence and, if so, which witnesses will be required,(c) (Repealed)(d) if the prosecutor disclosed an intention to tender at the trial any transcript, notice as to whether the accused person accepts the transcript as accurate and, if not, in what respect the transcript is disputed,(e) notice as to whether the accused person proposes to dispute the authenticity or accuracy of any proposed documentary evidence or other exhibit disclosed by the prosecutor,(f) (Repealed)(g) notice of any consent the accused person proposes to give under section 184 of the Evidence Act 1995.s 143 (previously s 47J): Renumbered 2001 No 119, Sch 1 [61]. Am 2001 No 119, Sch 1 [63]; 2006 No 120, Sch 3.7 [3] [7]; 2007 No 57, Sch 1 [4]. Subst 2009 No 112, Sch 1 [4]; 2013 No 10, Sch 1 [5]. Am 2018 No 47, Sch 1 [2] [3].
144 Prosecution response to defence response
For the purposes of section 141 (1) (c), the notice of the prosecution response to the defence response is to contain the following—(a) if the accused person has disclosed an intention to adduce expert evidence at the trial, notice as to whether the prosecutor disputes any of the expert evidence and, if so, in what respect,(b) if the accused person has disclosed an intention to tender any exhibit at the trial, notice as to whether the prosecutor proposes to raise any issue with respect to the continuity of custody of the exhibit,(c) if the accused person has disclosed an intention to tender any documentary evidence or other exhibit at the trial, notice as to whether the prosecutor proposes to dispute the accuracy or admissibility of the documentary evidence or other exhibit,(d) notice as to whether the prosecutor proposes to dispute the admissibility of any other proposed evidence disclosed by the accused person, and the basis for the objection,(d1) if the accused person has requested any editing of any audio or visual recording, or the transcript of any audio or visual recording, that the prosecutor intends to adduce at the trial, notice as to—(i) whether the prosecutor disputes any of the requested editing, and(ii) which requested edits are disputed, if any,(e) a copy of any information, document or other thing in the possession of the prosecutor, not already disclosed to the accused person, that might reasonably be expected to assist the case for the defence,(f) a copy of any information, document or other thing that has not already been disclosed to the accused person and that is required to be contained in the notice of the case for the prosecution.s 144 (previously s 47K): Renumbered 2001 No 119, Sch 1 [61]. Subst 2009 No 112, Sch 1 [4]. Am 2013 No 10, Sch 1 [6]; 2018 No 47, Sch 1 [4].
145 Dispensing with formal proof
(1) If a fact, matter or circumstance was alleged in a notice required to be given to the accused person by the prosecutor in accordance with this Division and the accused person was required to give a defence response under section 143 but did not disclose in the response an intention to dispute or require proof of the fact, matter or circumstance, the court may order that—(a) a document asserting the alleged fact, matter or circumstance may be admitted at the trial as evidence of the fact, matter or circumstance, and(b) evidence may not, without the leave of the court, be adduced to contradict or qualify the alleged fact, matter or circumstance.(2) If evidence was disclosed by the prosecution to the accused person in accordance with this Division and the accused person was required to give a defence response under section 143 but did not include notice in that response under section 143 (1) (c) in relation to that evidence, the court may, by order, dispense with the application of any one or more of the following provisions of the Evidence Act 1995 in relation to the adducing of the evidence at trial—(a) Division 3, 4 or 5 of Part 2.1,(b) Part 2.2 or 2.3,(c) Parts 3.2–3.8.(3) The court may, on the application of a party, direct that the party may adduce evidence of 2 or more witnesses in the form of a summary if the court is satisfied that—(a) the summary is not misleading or confusing, and(b) admission of the summary instead of evidence from the witnesses will not result in unfair prejudice to any party to the proceedings.(4) The court may, in a direction under subsection (3), require that one or more of the witnesses whose evidence is to be adduced in the form of a summary are to be available for cross-examination.(5) The opinion rule (within the meaning of the Evidence Act 1995) does not apply to evidence adduced in accordance with a direction under subsection (3).(6) The provisions of this section are in addition to the provisions of the Evidence Act 1995, in particular, section 190.s 145 (previously s 47L): Renumbered 2001 No 119, Sch 1 [61]. Am 2001 No 119, Sch 1 [63]. Subst 2009 No 112, Sch 1 [4]. Am 2013 No 10, Sch 1 [7].
146 Sanctions for non-compliance with pre-trial disclosure requirements
(1) Exclusion of evidence not disclosed The court may refuse to admit evidence in proceedings that is sought to be adduced by a party who failed to disclose the evidence to the other party in accordance with requirements for pre-trial disclosure imposed by or under this Division.(2) Exclusion of expert evidence where report not provided The court may refuse to admit evidence from an expert witness in proceedings that is sought to be adduced by a party if the party failed to give the other party a copy of a report by the expert witness in accordance with requirements for pre-trial disclosure imposed by or under this Division.(3) Adjournment The court may grant an adjournment to a party if the other party seeks to adduce evidence in the proceedings that the other party failed to disclose in accordance with requirements for pre-trial disclosure imposed by or under this Division and that would prejudice the case of the party seeking the adjournment.(4) Application of sanctions Without limiting the regulations that may be made under subsection (5), the powers of the court may not be exercised under this section to prevent an accused person adducing evidence unless the prosecutor has complied with the requirements for pre-trial disclosure imposed on the prosecution by or under this Division.(5) Regulations The regulations may make provision for or with respect to the exercise of the powers of a court under this section (including the circumstances in which the powers may not be exercised).s 146 (previously s 47M): Renumbered 2001 No 119, Sch 1 [61]. Subst 2009 No 112, Sch 1 [4].
146A Drawing of inferences in certain circumstances
(1) This section applies if—(a) the accused person fails to comply with the requirements for pre-trial disclosure imposed by or under this Division on the accused person, or(b) the accused person is required to give a notice under section 150 (Notice of alibi) and fails to do so.(2) If this section applies—(a) the court, or any other party with the leave of the court, may make such comment at the trial as appears proper, and(b) the court or jury may then draw such unfavourable inferences as appear proper.(3) A person must not be found guilty of an offence solely on an inference drawn under this section.(4) Subsection (2) does not apply unless the prosecutor has complied with the requirements for pre-trial disclosure imposed by or under this Division on the prosecution.(5) This section does not limit the operation of section 146.s 146A: Ins 2013 No 10, Sch 1 [8].
147 Disclosure requirements are ongoing
(1) The obligation to comply with the requirements for pre-trial disclosure imposed by or under this Division continues until any of the following happens—(a) the accused person is convicted or acquitted of the charges in the indictment,(b) the prosecution is terminated.(2) Accordingly, if any information, document or other thing is obtained or anything else occurs after pre-trial disclosure is made by a party to the proceedings, that would have affected that pre-trial disclosure had the information, document or thing been obtained or the thing occurred before pre-trial disclosure was made, the information, document, thing or occurrence is to be disclosed to the other party to the proceedings as soon as practicable.(3) An accused person may, with the leave of the court, amend the notice of the defence response given under section 143 if any information, document or other thing is obtained from the prosecution after the notice of the defence response was given that would affect the contents of that notice.(4) The accused person must give the amended notice of the defence response to the prosecutor.s 147 (previously s 47N): Renumbered 2001 No 119, Sch 1 [61]. Am 2001 No 119, Sch 1 [63]; 2003 No 82, Sch 2.9 [3]. Subst 2007 No 57, Sch 1 [5]; 2009 No 112, Sch 1 [4]. Am 2013 No 10, Sch 1 [9].
148 Court may waive requirements
(1) A court may, by order, waive any of the pre-trial disclosure requirements that apply under this Division, but only if the court is of the opinion that it would be in the interests of the administration of justice to do so.(2) The court may make such an order on its own initiative or on the application of the prosecutor or the accused person.(3) An order may be made subject to such conditions (if any) as the court thinks fit.(4) The court is to take into account whether the accused person is represented by an Australian legal practitioner when considering whether to make an order under this section.(5) The court is to give reasons for the making of an order under this section.s 148 (previously s 47O): Renumbered 2001 No 119, Sch 1 [61]. Am 2001 No 119, Sch 1 [63]. Subst 2009 No 112, Sch 1 [4]. Am 2013 No 10, Sch 1 [10] [11].
149 Requirements as to notices
(1) A notice under this Division is to be in writing.(2) Any notice purporting to be given under this Division on behalf of the accused person by his or her Australian legal practitioner is, unless the contrary is proved, taken to have been given with the authority of the accused person.(3) A notice under this Division that is required to be given to a prosecutor may be given to the prosecutor in the following manner, or as otherwise directed by the court—(a) by delivering it to the prosecutor,(b) by leaving it at the office of the prosecutor,(c) by sending it by post or facsimile to the prosecutor at the office of the prosecutor,(d) by sending it by electronic mail to the prosecutor, but only if the prosecutor has agreed to notice being given in that manner.(4) A notice under this Division that is required to be given to an accused person may be given to the accused person in the following manner, or as otherwise directed by the court—(a) by delivering it to the accused person,(b) by leaving it at the office of the Australian legal practitioner representing the accused person,(c) by sending it by post or facsimile to the Australian legal practitioner representing the accused person at the office of the Australian legal practitioner,(d) by sending it by electronic mail to the Australian legal practitioner, but only if the Australian legal practitioner has agreed to notice being given in that manner.(5) A party required to give a notice under this Division must file a copy of the notice with the court in accordance with a timetable determined by the court.(6) The court may vary the timetable if the court considers it would be in the interests of the administration of justice to do so.(7) In this section—notice includes an amended notice.s 149 (previously s 47P): Renumbered 2001 No 119, Sch 1 [61]. Am 2001 No 119, Sch 1 [63]; 2003 No 82, Sch 2.9 [4] [5]; 2006 No 120, Sch 3.7 [8]. Subst 2009 No 112, Sch 1 [4]. Am 2013 No 10, Sch 1 [12]; 2020 No 31, Sch 1.8[5] [6].
149A Copies of exhibits and other things not to be provided if impracticable
(1) A copy of a proposed exhibit, document or thing is not required to be included in a notice under this Division if it is impossible or impractical to provide a copy.(2) However, the party required to give the notice—(a) is to specify in the notice a reasonable time and place at which the proposed exhibit, document or thing may be inspected, and(b) is to allow the other party to the proceedings a reasonable opportunity to inspect the proposed exhibit, document or thing referred to in the notice.ss 149A–149E: Ins 2009 No 112, Sch 1 [4].
149B Personal details not to be provided
(1) The prosecutor is not to disclose in any notice under this Division the address or telephone number of any witness proposed to be called by the prosecutor, or of any other living person, unless—(a) the address or telephone number is a materially relevant part of the evidence, or(b) the court makes an order permitting the disclosure.(2) An application for such an order may be made by the accused person or the prosecutor.(3) The court must not make such an order unless satisfied that the 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 accused person’s right to prepare properly for the hearing of the evidence for the prosecution) outweigh any such risk.(4) This section does not prevent the disclosure of an address if the disclosure does not identify it as a particular person’s address, or it could not reasonably be inferred from the matters disclosed that it is a particular person’s address.(5) An address or telephone number that must not be disclosed may, without reference to the person who made the statement being disclosed, be deleted from that statement, or rendered illegible, before the statement is given to the accused person.ss 149A–149E: Ins 2009 No 112, Sch 1 [4].
149C Requirements as to statements of witnesses
(1) A statement of a witness that is included in a notice under this Division may be in the form of questions and answers.(2) If a notice includes a statement that is, wholly or in part, in a language other than English, there must be annexed to it a document purporting to contain a translation of the statement, or so much of it as is not in the English language, into the English language.ss 149A–149E: Ins 2009 No 112, Sch 1 [4].
149D Exemption for matters previously disclosed
(1) The prosecutor is not required to include in a notice under this Division anything that has already been included in a brief of evidence in relation to the matter served on the accused person in accordance with this or any other Act or that has otherwise been provided or disclosed to the accused person.(2) The accused person is not required to include in a notice under this Division anything that has already been provided or disclosed to the prosecutor.ss 149A–149E: Ins 2009 No 112, Sch 1 [4].
149E Court powers to ensure efficient management and conduct of trial
(1) On or after the commencement of the trial in proceedings, the court may make such orders, determinations or findings, or give such directions or rulings, as it thinks appropriate for the efficient management and conduct of the trial.(2) Without limiting subsection (1), the court may order that any of the parties to the proceedings disclose any matter that was, or could have been, required to be disclosed under this Division before the commencement of the trial.ss 149A–149E: Ins 2009 No 112, Sch 1 [4].
149F Miscellaneous provisions
(1) A statement about any matter that is made by or on behalf of the accused person for the purposes of complying with requirements for pre-trial disclosure imposed by or under this Division does not constitute an admission of that matter by the accused person.(2) The court may make orders to resolve any dispute between the parties to criminal proceedings about—(a) the requirements for pre-trial disclosure imposed by or under this Division, or(b) the use of anything disclosed under this Division (including restrictions on publication or further disclosure).(3) This Division does not affect the obligations or powers under Division 4 (Pre-trial disclosure—general).(4) Nothing in this Division prevents any voluntary pre-trial disclosure by the accused person to the prosecutor of any information, document or other thing that the accused person proposes to adduce in evidence in the proceedings.(5) This Division does not limit any obligation (arising otherwise than under this Division) for pre-trial disclosure that is capable of being complied with concurrently with requirements imposed by or under this Division, but this Division prevails to the extent of any inconsistency with any such obligation. Any such obligation extends to obligations imposed by the common law, the rules of court, the Uniform Rules made under Part 9.2 of the Legal Profession Uniform Law (NSW) and prosecution guidelines issued by the Director of Public Prosecutions.(6) However, this Division does not affect any immunity that applies by law to the disclosure of any information, document or other thing, including, for example, legal professional or client legal privilege, public interest immunity and sexual assault communications privilege under Division 2 of Part 5 of Chapter 6.(7) Nothing in this Division limits any powers that a court has apart from this Division in relation to proceedings.(8) The provisions of this Division prevail over the provisions of the Evidence Act 1995 to the extent of any inconsistency with those provisions.s 149F: Ins 2009 No 112, Sch 1 [4]. Am 2015 No 7, Sch 2.11 [1].
Division 4 Pre-trial disclosure—general
ch 3, pt 3, div 4, hdg: Ins 2001 No 119, Sch 1 [64].
150 Notice of alibi
(1) This section applies only to trials on indictment.(2) An accused person may not, without the leave of the court, adduce evidence in support of an alibi unless, before the end of the prescribed period, he or she gives notice of particulars of the alibi to the Director of Public Prosecutions and files a copy of the notice with the court.(3) Without limiting subsection (2), the accused person may not, without the leave of the court, call any other person to give evidence in support of an alibi unless—(a) the notice under that subsection includes the other person’s name and address or, if the other person’s name or address is not known to the accused person at the time he or she gives notice, any information in his or her possession that might be of material assistance in finding the other person, and(b) if the other person’s name or address is not included in the notice, the court is satisfied that the accused person before giving notice took, and thereafter continued to take, all reasonable steps to ensure that the other person’s name or address would be ascertained, and(c) if the other person’s name or address is not included in the notice, but the accused person subsequently discovers the other person’s name or address or receives other information that might be of material assistance in finding the other person, he or she immediately gives notice of the name, address or other information, and(d) if the accused person is notified by or on behalf of the Crown that the other person has not been traced by the name or address given by the accused person, he or she immediately gives notice of any information that might be of material assistance in finding the other person and that is then in his or her possession or, on subsequently receiving any such information, immediately gives notice of it.(4) The court may not refuse leave under this section if it appears to the court that, on the committal for trial of the accused person, he or she was not informed by the committing Magistrate of the requirements of subsections (2), (3) and (7) and, for that purpose, a statement in writing by the committing Magistrate that the accused person was informed of those requirements is evidence that the accused person was so informed.(5) Any evidence tendered to disprove an alibi may, subject to any direction by the court, be given before or after evidence is given in support of the alibi.(6) Any notice purporting to be given under this section on behalf of the accused person by his or her Australian legal practitioner is, unless the contrary is proved, to be taken to have been given with the authority of the accused person.(7) A notice under this section must be given in writing to the Director of Public Prosecutions, and may be given by delivering it to the Director, by leaving it at the Director’s office or by sending it in a letter addressed to the Director at the Director’s office.(8) In this section—evidence in support of an alibi means evidence tending to show that, by reason of the presence of the accused person at a particular place or in a particular area at a particular time, the accused person was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.prescribed period means the period commencing at the time of the accused person’s committal for trial and ending 56 days before the trial is listed for hearing.s 150 (previously s 48): Renumbered 2001 No 119, Sch 1 [65]. Am 2001 No 119, Sch 1 [66]; 2006 No 120, Sch 3.7 [7]; 2007 No 57, Sch 1 [6] [7]; 2020 No 31, Sch 1.8[7].
151 Notice of intention to adduce evidence of substantial mental impairment
(1) On a trial for murder, the accused person must not, without the leave of the court, adduce evidence tending to prove a contention of substantial mental impairment unless the accused person gives notice, as prescribed by the regulations, of his or her intention to raise that contention to the Director of Public Prosecutions and files a copy of the notice with the court.(2) Without limiting subsection (1), the accused person must not, without the leave of the court, call any other person to give evidence tending to prove a contention of substantial mental impairment unless the notice under this section includes—(a) the name and address of the other person, and(b) particulars of the evidence to be given by the other person.(3) Any evidence tendered to disprove a contention of substantial mental impairment may, subject to any direction of the court, be given before or after evidence is given to prove that contention.(4) Any notice purporting to be given under this section on behalf of the accused person by his or her Australian legal practitioner is taken, unless the contrary is proved, to have been given with the authority of the accused person.(5) A notice under this section is to be given in writing to the Director of Public Prosecutions, and may be given by delivering it to the Director, by leaving it at the Director’s office or by sending it in a letter addressed to the Director at the Director’s office.(6) In this section, contention of substantial mental impairment means a contention by the accused person that the accused person is not liable to be convicted of murder by virtue of section 23A of the Crimes Act 1900.s 151 (previously s 49): Renumbered 2001 No 119, Sch 1 [65]. Am 2006 No 120, Sch 3.7 [7]; 2007 No 57, Sch 1 [8].
Division 5 Pleadings on trial
ch 3, pt 3, div 5, hdg: Ins 2001 No 119, Sch 1 [67].
152 Arraignment on charge of previous conviction
(1) An accused person is not to be arraigned for any previous conviction charged in an indictment unless he or she is convicted of a subsequent offence charged in the indictment.(2) On the accused person’s conviction of the subsequent offence—(a) the accused person is to be arraigned, and(b) the jury is to be charged, andin relation to the previous conviction.(c) the trial is to proceed,(3) In the trial for the subsequent offence, evidence of the previous conviction may not be admitted, except in reply to evidence of character, unless the accused person is convicted of the subsequent offence.ss 152–157 (previously ss 86–91): Renumbered 2001 No 119, Sch 1 [68].
153 Guilty plea to offence not charged
(1) If an accused person—(a) is arraigned on an indictment for an offence, andhe or she may plead “not guilty” of the offence charged in the indictment, but “guilty” of the other offence.(b) can lawfully be convicted on the indictment of some other offence not charged in the indictment,(2) The Crown may elect to accept the plea of “guilty” or may require the trial to proceed on the charge on which the accused person is arraigned.ss 152–157 (previously ss 86–91): Renumbered 2001 No 119, Sch 1 [68].
154 Plea of “not guilty”
If an accused person arraigned on an indictment pleads “not guilty”, the accused person is taken to have put himself or herself on the country for trial, and the court is to order a jury for trial accordingly.ss 152–157 (previously ss 86–91): Renumbered 2001 No 119, Sch 1 [68].
155 Refusal to plead
If an accused person who is arraigned stands mute, or will not answer directly to the indictment, the court may order a plea of “not guilty” to be entered on behalf of the accused person, and the plea so entered has the same effect as if the accused person had actually pleaded “not guilty”.ss 152–157 (previously ss 86–91): Renumbered 2001 No 119, Sch 1 [68].
156 Plea of autrefois convict
(1) In any plea of autrefois convict, or of autrefois acquit, it is sufficient for the accused person to allege that he or she has been lawfully convicted or acquitted, as the case may be, of the offence charged in the indictment, without specifying the time or place of the previous conviction or acquittal.(2) The issue of autrefois convict or autrefois acquit is to be determined by the court without the presence of a jury.ss 152–157 (previously ss 86–91): Renumbered 2001 No 119, Sch 1 [68].
157 Change to guilty plea during trial
(1) If an accused person pleads “guilty” to an offence at any time after having been given into the charge of a jury, and the court accepts the plea, the court is to discharge the jury from giving a verdict in the matter and to find the accused person guilty of the offence.(2) The finding has effect as if it were the verdict of the jury, and the accused person is liable to punishment accordingly.ss 152–157 (previously ss 86–91): Renumbered 2001 No 119, Sch 1 [68].
Division 6 Other provisions relating to trials
ch 3, pt 3, div 6, hdg: Ins 2001 No 119, Sch 1 [70].
158 Transcript of statement in committal proceedings
A transcript of a record of a statement made by an accused person may, unless the court otherwise orders, be given in evidence at the trial of the accused person if it is proved on oath that the record is a true record of the statement made by the accused person and that the transcript is a correct transcript of the record.s 158: Ins 2001 No 119, Sch 1 [70]. Subst 2002 No 99, Sch 1.2 [4].
159 Opening address to jury by accused person
(1) An accused person or his or her Australian legal practitioner may address the jury immediately after the opening address of the prosecutor.(2) Any such opening address is to be limited generally to an address on—(a) the matters disclosed in the prosecutor’s opening address, including those that are in dispute and those that are not in dispute, and(b) the matters to be raised by the accused person.(3) If the accused person intends to give evidence or to call any witness in support of the defence, the accused person or his or her Australian legal practitioner is entitled to open the case for the defence before calling evidence, whether or not an address has been made to the jury.s 159 (previously s 97): Renumbered 2001 No 119, Sch 1 [71]. Am 2001 No 119, Sch 1 [72] [73]; 2006 No 120, Sch 3.7 [9].
160 Closing address to jury by accused person
(1) An accused person or his or her Australian legal practitioner may address the jury after the close of the evidence for the defence and any evidence in reply by the Crown and after the prosecutor has made a closing address to the jury or declined to make a closing address to the jury.(2) If, in the accused person’s closing address, relevant facts are asserted that are not supported by any evidence that is before the jury, the court may grant leave for the Crown to make a supplementary address to the jury replying to any such assertion.s 160 (previously s 98): Renumbered 2001 No 119, Sch 1 [71]. Am 2001 No 119, Sch 1 [72]; 2006 No 120, Sch 3.7 [9].
161 Summary by Judge
(1) At the end of a criminal trial before a jury, a Judge need not summarise the evidence given in the trial if of the opinion that, in all the circumstances of the trial, a summary is not necessary.(2) This section applies despite any rule of law or practice to the contrary.(3) Nothing in this section affects any aspect of a Judge’s summing up function other than the summary of evidence in a trial.s 161 (previously s 99): Renumbered 2001 No 119, Sch 1 [71].
161A Direction not to be given regarding tendency or coincidence evidence
(1) A jury must not be directed that evidence needs to be proved beyond reasonable doubt to the extent that it is adduced as tendency evidence or coincidence evidence.(2) If evidence is adduced as both tendency evidence or coincidence evidence and as proof of an element or essential fact of a charge before the jury, the jury may be directed that the evidence needs to be proved beyond reasonable doubt, but only to the extent that it is adduced as proof of the element or essential fact.(3) Subsection (1) does not apply if a court is satisfied—(a) there is a significant possibility that a jury will rely on an act or omission as being essential to its reasoning in reaching a finding of guilt, and(b) evidence of the act or omission has been adduced as tendency evidence or coincidence evidence.s 161A: Ins 2020 No 31, Sch 1.8[8].
162 Alternative verdict of attempt on trial for any indictable offence
If, on the trial of a person for any indictable offence, the jury is not satisfied that the person is guilty of the offence, but is satisfied that he or she is guilty of—(a) an attempt to commit the offence, orit may acquit the person of the offence charged and find the person guilty of the attempt or assault, and the person is liable to punishment accordingly.(b) an assault with intent to commit the offence,s 162: Renumbered 2001 No 119, Sch 1 [74].
163 No further prosecution after trial for serious indictable offence where alternative verdict possible
If under any Act a person who is tried for a serious indictable offence may be acquitted of that offence but found guilty of some other offence, the person is not liable to further prosecution on the same facts for that other offence.ss 163 (previously ss 124, 125): Renumbered 2001 No 119, Sch 1 [74].
164 Joint trial in case of perjury
If—(a) a number of persons are severally indicted for perjury or false swearing, andall of those persons may be tried together, at the same time and before the same jury, provided that each person is to have his or her full right of challenge.(b) the statements alleged to be false—(i) are alleged to have been made on the same occasion, before the same court or tribunal and in respect of the same subject-matter, and(ii) are in each case to the same effect, whether in identical terms or not,s 164 (previously s 123): Renumbered 2001 No 119, Sch 1 [75].
164A Judge unable to continue in trial by jury
(1) If the presiding judge of criminal proceedings being tried by a jury in the District Court or the Supreme Court dies, becomes ill or is otherwise unable to continue the proceedings (the former presiding judge), the senior judicial officer of the relevant court may, after hearing submissions from the parties to the proceedings—(a) nominate another judge of the court (the new presiding judge) to take over the conduct of the proceedings, or(b) discharge the jury and order a new trial.(2) Before making a decision to nominate a new presiding judge, the senior judicial officer must consider whether it would be in the interests of justice to do so, including (but not limited to) the following matters—(a) whether the new presiding judge will be available to take over the conduct of the proceedings within a reasonable time,(b) whether a transcript, audio or video recording of all of the proceedings is available,(c) the time that will be required for the new presiding judge to familiarise himself or herself with any available transcript or audio or video recording of the proceedings, and with any evidence that has been given in the proceedings,(d) the submissions from the parties,(e) the progress of the trial, including whether any key witnesses for the prosecution or the defence have given evidence,(f) the history, estimated length and complexity of the trial,(g) the availability of witnesses,(h) whether the decision to nominate a new presiding judge would be unfair to any of the parties to the trial.(3) If the senior judicial officer of the relevant court is unable to make a decision, the senior judicial officer may nominate another judge of the relevant court to make a decision in accordance with this section.(4) If a new presiding judge takes over the conduct of the proceedings, an order or ruling made by the former presiding judge is binding on the new presiding judge unless, in the opinion of the new presiding judge, it would not be in the interests of justice for that order or ruling to be binding.Note—Section 5F (Appeal against interlocutory judgment or order) of the Criminal Appeal Act 1912 does not extend to a decision made under this section.s 164A: Ins 2016 No 54, Sch 1.7 [1].
Division 7 Certain summary offences may be dealt with
ch 3, pt 3, div 7, hdg: Ins 2001 No 119, Sch 1 [76].
165 Definitions and application
(1) In this Part—back up offence, in relation to an indictable offence, means an offence—(a) that is—(i) a summary offence, or(ii) an indictable offence that is capable of being dealt with summarily by the Local Court in accordance with the provisions of Chapter 5, and(b) all the elements of which are elements that are necessary to constitute the first indictable offence, and(c) that is to be prosecuted on the same facts as the first indictable offence.court means the Supreme Court or District Court., in relation to an indictable offence, means an offence—(a) that is—(i) a summary offence, or(ii) an indictable offence that is capable of being dealt with summarily by the Local Court in accordance with the provisions of Chapter 5, andbut does not include a back up offence.(b) that arises from substantially the same circumstances as those from which the first indictable offence has arisen,(2) This Part extends to proceedings commenced, but not concluded, before the commencement of this Part.s 165 (previously s 35): Renumbered 2001 No 119, Sch 1 [77]. Am 2001 No 119, Sch 1 [78]; 2007 No 94, Sch 2.
166 Certification and transfer of back up and related offences
(1) On committal for trial or sentence of a person charged with an indictable offence—(a) the prosecutor must inform the Magistrate as to whether or not the person has been charged with any back up offence or related offence, and(b) if the person has been charged with any back up offence or related offence—(i) the prosecutor is to produce to the court a certificate specifying each back up offence and related offence with which the person has been charged, and(ii) the proceedings on each back up offence and related offence with which the person has been charged are to be transferred to the court in which the person has been committed to trial or sentence (along with the certificate).(2) This section does not prevent the person referred to in subsection (1) being charged with any offence after committal.(3) Proceedings on a back up offence or related offence that are laid after committal for trial or sentence of a person charged with an indictable offence are to be transferred to the court in which the person has been committed to trial or sentence.s 166 (previously s 36): Renumbered 2001 No 119, Sch 1 [77]. Am 2001 No 119, Sch 1 [79] [80]; 2003 No 27, Sch 8 [3].
167 Manner of dealing with back up and related offences
(1) If, following a plea of guilty by an accused person to an indictable offence or at the conclusion of the trial of an accused person for an indictable offence, a court finds the accused person guilty of the offence, the court—(a) is (unless it considers it inappropriate in the circumstances to do so) to order that the charge in relation to each back up offence be dismissed, and(b) is to deal with any back up offence the charge for which is not dismissed under paragraph (a) and any related offence with which the accused person has been charged in accordance with this Part, unless to do so would not be in the interests of justice.(1A) If at the conclusion of the trial of an accused person for an indictable offence, a court finds the accused person not guilty of the offence, the court is to deal with any back up offence or related offence with which the person has been charged in accordance with this Part, unless to do so would not be in the interests of justice.(2) If a court is dealing with an accused person for an indictable offence following the person’s committal for sentence, the court—(a) is (unless it considers it inappropriate in the circumstances to do so) to order that the charge in relation to each back up offence be dismissed, and(b) may deal with any back up offence the charge for which is not dismissed under paragraph (a) and any related offence with which the accused person has been charged in accordance with this Part, unless to do so would not be in the interests of justice.(3) (Repealed)(4) A court may deal with a back up offence or related offence with which an accused person has been charged even though it is not doing so in relation to a back up offence or related offence with which another accused person in the same proceedings is charged.s 167 (previously s 37): Renumbered 2001 No 119, Sch 1 [77]. Am 2003 No 27, Sch 8 [4] [5].
168 Procedures for dealing with certain offences related to indictable offences
(1) The court is to deal with a back up offence or related offence under this Part without a jury and on the basis only of evidence given during the trial of the accused person for the relevant indictable offence in the same proceedings and additional evidence given under this section.(2) The prosecutor or accused person may, with the leave of the court, call additional evidence in relation to the back up offence or related offence.(3) In sentencing or otherwise dealing with a person for a back up offence or related offence, the court has the same functions, and is subject to the same restrictions and procedures, as the Local Court.(4) Rules of court may be made with respect to back up offences or related offences dealt with under this Part.s 168 (previously s 38): Renumbered 2001 No 119, Sch 1 [77]. Am 2001 No 119, Sch 1 [81]; 2007 No 94, Sch 2.
169 Remission of certain offences related to indictable offences to Local Court
(1) A court that is dealing with a back up offence or related offence under this Part may, if it is in the interests of justice to do so, remit the matter to the Local Court.(2) Any back up offence or related offence that is not dealt with by a court in accordance with this Part is to be remitted back to the Local Court.s 169 (previously s 39): Renumbered 2001 No 119, Sch 1 [77]. Am 2007 No 94, Sch 2.
Chapter 4 Summary procedure
ch 4: Ins 2001 No 119, Sch 1 [82].
Part 1 Preliminary
ch 4, pt 1: Ins 2001 No 119, Sch 1 [82].
170 Application
(1) This Chapter applies to or in respect of proceedings for summary offences, including proceedings for indictable offences that are being dealt with summarily.(2) Parts 2 and 3 apply to the following proceedings—(a) proceedings before the Local Court,(b) (Repealed)(c) proceedings before an Industrial Magistrate,(d) (Repealed)(e) any other proceedings prescribed by the regulations.(2A) Part 4 applies to the following proceedings—(a) proceedings before the Local Court,(b) proceedings before the District Court,(c) proceedings before the Supreme Court,(d) proceedings before an Industrial Magistrate,(e) (Repealed)(f) any other proceedings prescribed by the regulations.(3) Part 5 (except Division 2A) applies to the following proceedings—(a) proceedings before the Supreme Court,(b) (Repealed)(c) proceedings before the Land and Environment Court,(c1) proceedings before the District Court,(d) proceedings before the Court of Coal Mines Regulation,(e) any other proceedings prescribed by the regulations.(4) Division 2A of Part 5 applies to the following proceedings—(a) proceedings before the Supreme Court,(b) proceedings before the Land and Environment Court.s 170: Ins 2001 No 119, Sch 1 [82]. Am 2007 No 92, Sch 4.5 [3]; 2007 No 94, Sch 2 (am 2008 No 107, Sch 21 [3]); 2008 No 107, Schs 7 [1] [2], 29.4 [4] [5]; 2011 No 67, Sch 4.6 [1]; 2012 No 10, Sch 1 [1] [2]; 2016 No 48, Sch 2.13 [4].
171 Definitions
In this Chapter—court means a court to which the relevant provision of this Chapter applies and includes (where applicable) an Industrial Magistrate.Judge includes a judge of the Supreme Court, the Land and Environment Court and the Court of Coal Mines Regulation and any other person of a class prescribed by the regulations for the purposes of this definition.Magistrate includes an Industrial Magistrate and any other person of a class prescribed by the regulations for the purposes of this definition.registrar means—(a) in the case of proceedings before the Local Court, the relevant registrar of the Local Court,(b) (Repealed)(c) in the case of proceedings before an Industrial Magistrate, the relevant registrar of the Local Court,(d) (Repealed)(e) in the case of proceedings before any other court to which Parts 2–4 apply, the person prescribed by the regulations for the purposes of this definition.s 171: Ins 2001 No 119, Sch 1 [82]. Am 2007 No 92, Sch 4.5 [4] [5]; 2007 No 94, Sch 1.28 [5] [6]; 2008 No 107, Sch 29.4 [6] [7]; 2016 No 48, Sch 2.13 [5].
Part 2 Trial procedures in lower courts
ch 4, pt 2: Ins 2001 No 119, Sch 1 [82].
Division 1 Commencement of proceedings
ch 4, pt 2, div 1: Ins 2001 No 119, Sch 1 [82].
172 Commencement of proceedings by court attendance notice
(1) Proceedings for an offence are to be commenced in a court by the issue and filing of a court attendance notice in accordance with this Division.(2) A court attendance notice may be issued in respect of a person if the person has committed or is suspected of having committed an offence.(3) A court attendance notice may be issued in respect of any offence for which proceedings may be taken in this State, including an offence committed elsewhere than in this State.s 172: Ins 2001 No 119, Sch 1 [82].
173 Commencement of proceedings by police officer or public officer
If a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the officer may commence the proceedings by issuing a court attendance notice and filing the notice in accordance with this Division.s 173: Ins 2001 No 119, Sch 1 [82]. Am 2006 No 107, Sch 1.11 [12].
174 Commencement of private prosecutions
(1) If a person other than a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division.(2) A registrar must not sign a court attendance notice if—(a) the registrar is of the opinion that the notice does not disclose grounds for the proceedings, or(b) the registrar is of the opinion that the notice is not in the form required by or under this Act, or(c) the registrar is of the opinion that a ground for refusal set out in the rules applies to the notice.(3) If a registrar refuses to sign a court attendance notice proposed to be issued by any such person, the question of whether the court attendance notice is to be signed and issued is to be determined by a Magistrate on application by the person.s 174: Ins 2001 No 119, Sch 1 [82]. Am 2006 No 107, Sch 1.11 [13]; 2018 No 4, Sch 1.5 [1].
175 Form of court attendance notice
(1) A court attendance notice must be in writing and be in the form prescribed by the rules.(2) The rules may prescribe one or more forms of court attendance notice.(3) A court attendance notice must do the following—(a) describe the offence,(b) briefly state the particulars of the alleged offence,(c) contain the name of the prosecutor,(d) require the accused person to appear before the court at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail,(e) state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person.(4) The rules may prescribe additional matters to be included in court attendance notices.(5) A court attendance notice may describe an offence, act or other thing in a way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment.s 175: Ins 2001 No 119, Sch 1 [82]. Am 2002 No 99, Sch 1.2 [5].
176 (Repealed)
s 176: Ins 2001 No 119, Sch 1 [82]. Rep 2002 No 99, Sch 1.2 [2].
177 Service of court attendance notices
(1) A court attendance notice issued by a police officer must be served by a police officer or prosecutor in accordance with the rules.(2) A court attendance notice issued by a public officer must be served by a police officer, public officer or other person of a class prescribed by the rules, in accordance with the rules.(3) A copy of a court attendance notice issued by a person other than a police officer or a public officer must be served by a person of a class prescribed by the rules in accordance with the rules.(4) A copy of a court attendance notice must be filed in the registry of a court in accordance with the rules.(5) (Repealed)s 177: Ins 2001 No 119, Sch 1 [82]. Am 2004 No 68, Sch 6 [3] [4]; 2006 No 107, Sch 1.11 [14] [15].
178 When proceedings commence
(1) All proceedings are taken to have commenced on the date on which a court attendance notice is filed in the registry of a relevant court in accordance with this Division.(2) (Repealed)(3) Nothing in this section affects any other Act or law under which proceedings are taken to have been commenced on another date.s 178: Ins 2001 No 119, Sch 1 [82]. Am 2006 No 107, Sch 1.11 [16].
179 Time limit for commencement of summary proceedings
(1) Proceedings for a summary offence must be commenced not later than 6 months from when the offence was alleged to have been committed.(2) Subsection (1) does not apply—(a) to an offence for which an Act or law specifies another period within which proceedings must be commenced, or(b) to an indictable offence that is being dealt with summarily, or(c) to an offence involving the death of a person that is or has been the subject of a coronial inquest, or(d) to a back up summary offence if the District Court determines an appeal against a conviction or finding of guilt by the Children’s Court or Local Court for the related indictable offence by setting aside the conviction or finding of guilt.(3) Proceedings for a summary offence that relate to the death of a person that is or has been the subject of a coronial inquest must be commenced—(a) not later than 6 months after the conclusion of the inquest, orwhichever occurs first.(b) not later than 2 years from when the offence is alleged to have been committed,(4) Proceedings for a back up summary offence must be commenced not later than 6 months after the District Court determines an appeal against the conviction or finding of guilt by the Children’s Court or Local Court for the related indictable offence by setting aside the conviction or finding of guilt.(5) In this section, a summary offence is a back up summary offence if a charge for the summary offence was laid against a person but was withdrawn or dismissed after the person was convicted or found guilty of an indictable offence (the ) by the Children’s Court or Local Court on the basis of the same facts.s 179: Ins 2001 No 119, Sch 1 [82]. Am 2006 No 107, Sch 1.11 [17]–[19]; 2018 No 87, Sch 1.15 [1] [2].
180 Relationship to other law or practice
(1) Nothing in this Part affects any law or practice relating to indictments presented or filed in the Supreme Court or the District Court by the Attorney General or the Director of Public Prosecutions.(2) If an Act or a statutory rule provides for proceedings for an offence which may be taken in a court to be commenced otherwise than by issuing a court attendance notice, the proceedings may be commenced in accordance with this Act.(3) Nothing in this Part affects the operation of the provisions of the Crimes (Domestic and Personal Violence) Act 2007 relating to the commencement of proceedings under that Act.s 180: Ins 2001 No 119, Sch 1 [82]. Am 2008 No 114, Sch 2.8 [1] [2].
181 Attendance of accused person at proceedings
(1) A person who issues a court attendance notice may, at any time after the notice is issued and before the date on which the accused person is required to first attend at the court for the hearing of proceedings, apply for a warrant to arrest the accused person.(2) An authorised officer may, when a court attendance notice is issued by the registrar, or filed in the court, or at any time after then and before the matter is first before a court, issue a warrant to arrest the accused person if the authorised officer is satisfied there are substantial reasons to do so and that it is in the interests of justice to do so.(3) The rules may make provision for or with respect to matters that may be taken into account by an authorised officer in determining whether to issue a warrant under this section.(3A) If an accused person is not present at the day, time and place set down for the hearing of proceedings (including any day to which proceedings are adjourned), or absconds from the proceedings, the Magistrate may issue a warrant to arrest the accused person if the Magistrate is satisfied there are substantial reasons to do so and that it is in the interests of justice to do so.(4) A Magistrate or an authorised officer before whom an accused person is brought on arrest on a warrant issued under this section may, if bail is not dispensed with or granted, order the issue of a warrant—(a) committing the accused person to a correctional centre or other place of security, and(b) ordering the accused person to be brought before a court at the date, time and place specified in the order.(5) The Magistrate or authorised officer must give notice of the date, time and place set to the prosecutor. Part 4 of this Chapter sets out procedures for arrest warrants and warrants of commitment generally.s 181: Ins 2001 No 119, Sch 1 [82]. Am 2002 No 130, Sch 6 [2].
Division 2 Pre-trial procedures
ch 4, pt 2, div 2: Ins 2001 No 119, Sch 1 [82].
182 Written pleas
(1) An accused person served with a court attendance notice may lodge with the registrar a notice in writing that the accused person will plead guilty or not guilty to the offence or offences the subject of the court attendance notice concerned.(2) The notice is to be in the form prescribed by the rules and, in the case of a guilty plea, may be accompanied by additional written material containing matters in mitigation of the offence.(2A) Despite subsection (2), a notice in writing under this section is not required to be in the form prescribed by the rules if the written notice is accepted by the Local Court.(3) An accused person who lodges a notice under this section with the registrar not later than 7 days before the date on which the person is required to first attend before the Local Court—(a) is not required to attend the Court on that date, and(b) is taken to have attended the Court on that date.(4) This section does not apply to an accused person who has been granted or refused bail or in relation to whom bail has been dispensed with.(5) Subsection (4) does not have effect during the period—(a) starting on the commencement of this subsection, and(b) ending on the day that Chapter 7, Part 5 is repealed.(6) Subsection (5) and this subsection are repealed on the day that Chapter 7, Part 5 is repealed.s 182: Ins 2001 No 119, Sch 1 [82]. Am 2003 No 40, Sch 1.10 [4]; 2006 No 23, Sch 2 [1]; 2007 No 94, Sch 2; 2009 No 4, Sch 2.2; 2017 No 44, Sch 1.9 [3]; 2020 No 4, Sch 1.2.
183 Brief of evidence to be served on accused person where not guilty plea
(1) If an accused person pleads not guilty to an offence, the prosecutor must, subject to section 187, serve or cause to be served on the accused person a copy of the brief of evidence relating to the offence.(2) The brief of evidence is, unless the regulations otherwise provide, to consist of documents regarding the evidence that the prosecutor intends to adduce in order to prove the commission of the offence and is to include—(a) written statements taken from the persons the prosecutor intends to call to give evidence in proceedings for the offence, and(b) copies of any document or any other thing, identified in such a written statement as a proposed exhibit.(3) The copy of the brief of evidence is to be served at least 14 days before the hearing of the evidence for the prosecution.(4) The Magistrate may set a later date for service with the consent of the accused person or if of the opinion that the circumstances of the case require it.s 183: Ins 2001 No 119, Sch 1 [82]. Am 2002 No 99, Sch 1.2 [6]; 2007 No 34, Sch 1 [1].
184 Exhibits
(1) Despite section 183, the prosecutor 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 prosecutor is—(a) to serve on the accused person a notice specifying a reasonable time and place at which the proposed exhibit may be inspected, and(b) to allow the accused person a reasonable opportunity to inspect each proposed exhibit referred to in the notice.s 184: Ins 2001 No 119, Sch 1 [82].
185 Recording of interviews with vulnerable persons
(1) If the prosecutor intends to call a vulnerable person to give evidence in proceedings, the brief of evidence may include a transcript of a recording made by an investigating official of an interview with the vulnerable person, during which the vulnerable person was questioned by the investigating official in connection with the investigation of the commission or possible commission of the offence (as referred to in section 306R).(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 accused person in accordance with section 183.(3) A brief of evidence that includes a transcript of a recording of an interview with a vulnerable person is not required also to include a written statement from the vulnerable person concerned.(4) The transcript of the recording is taken, for the purposes of this Division, to be a written statement taken from the vulnerable person. 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 Division requires the prosecutor to serve on the accused person a copy of the actual recording made by an investigating official of an interview with the vulnerable person.(6) This section does not affect section 306V (2).(7) In this section—investigating official has the same meaning as it has in Part 6 of Chapter 6.Note—Part 6 of Chapter 6 allows vulnerable persons (children and cognitively impaired persons) to give evidence of a previous representation in the form of a recording made by an investigating official of an interview with the vulnerable person. Section 306V (2) (which is contained in that Part) provides that such evidence is not to be admitted unless the accused person and his or her Australian legal practitioner have been given a reasonable opportunity to listen to or view the recording.s 185: Ins 2001 No 119, Sch 1 [82]. Subst 2007 No 6, Sch 1 [3]. Am 2008 No 74, Sch 2 [3]; 2009 No 56, Sch 3.3 [1]; 2014 No 83, Sch 1 [9].
185A Recordings of interviews with domestic violence complainants
(1) If the prosecutor intends to call a domestic violence complainant to give evidence in proceedings for a domestic violence offence, the brief of evidence may include a recorded statement relating to the offence.(2) For the purpose of the service of a recorded statement included in a brief of evidence, the requirements of Division 3 of Part 4B of Chapter 6 in relation to service of, and access to, a recorded statement must be complied with.(3) This Division (other than section 185 (1)) applies to a recorded statement included in a brief of evidence and the person whose representation is recorded in the recorded statement in the same way as it applies to a written statement included under this Division and the person who made the written statement.(4) A brief of evidence that includes a recorded statement is not required also to include a written statement from the domestic violence complainant.(5) This section does not affect section 289I (2).s 185A: Ins 2014 No 83, Sch 1 [10].
186 Form of copy of brief of evidence
(1) The copy of the brief of evidence is to comply with any requirement applicable to it prescribed by the rules.(2) A written statement contained in the brief of evidence is to comply with this Act and any requirement applicable to it prescribed by the rules.s 186: Ins 2001 No 119, Sch 1 [82].
187 When brief of evidence need not be served
(1) The court may order that all or part of the copy of the brief of evidence need not be served if it is satisfied—(a) that there are compelling reasons for not requiring service, or(b) that it could not reasonably be served on the accused person.(2) The court may make an order under this section on its own initiative or on the application of any party.(3) An order may be made subject to any conditions that the court thinks fit.(4) Without limiting any other power to adjourn proceedings, the court may grant one or more adjournments, if it appears to it to be just and reasonable to do so, if the copy of the brief of evidence is not served in accordance with this Division. For that purpose, the court may extend the time for service of the brief of evidence.(5) A prosecutor is not required to serve a brief of evidence in proceedings for an offence of a kind, or proceedings of a kind, prescribed by the regulations.s 187: Ins 2001 No 119, Sch 1 [82]. Am 2002 No 99, Sch 1.2 [7].
188 Evidence not to be admitted
(1) The court must refuse to admit evidence sought to be adduced by the prosecutor in respect of an offence if, in relation to that evidence, this Division or any rules made under this Division have not been complied with by the prosecutor.(2) The court may, and on the application of or with the consent of the accused person must, dispense with the requirements of subsection (1) on such terms and conditions as appear just and reasonable.s 188: Ins 2001 No 119, Sch 1 [82].
189 False statements or representations
(1) A person who made a written statement tendered in evidence in proceedings is guilty of an offence if the statement contains any matter 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.Maximum penalty—(a) If the offence is dealt with summarily, 20 penalty units or imprisonment for 12 months, or both.(b) If the offence is dealt with on indictment, 50 penalty units or imprisonment for 5 years, or both.(1A) A person who made a representation given in evidence in proceedings in the form of a recorded statement is guilty of an offence if the representation contains any matter that, at the time the representation was made, the person knew to be false, or did not believe to be true, in any material respect.Maximum penalty—(a) If the offence is dealt with summarily, 20 penalty units or imprisonment for 12 months, or both.(b) If the offence is dealt with on indictment, 50 penalty units or imprisonment for 5 years, or both.(2) Chapter 5 (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.s 189: Ins 2001 No 119, Sch 1 [82]. Am 2014 No 83, Sch 1 [11].
Division 3 Hearings
ch 4, pt 2, div 3: Ins 2001 No 119, Sch 1 [82].
190 Time for hearing
(1) On the first return date for a court attendance notice in any summary proceedings, or at such later time as the court determines, the court must set the date, time and place for hearing and determining the matter.(2) The court must notify the accused person of the date, time and place, if the accused person is not present.(3) However, if the accused person is not present at the first return date or at any subsequent mention of the proceedings and has not lodged a written plea of not guilty in accordance with section 182, the court may proceed to hear and determine the matter on the first or a subsequent day on which the matter is listed for mention at its discretion.(4) The court may not proceed to hear and determine the matter unless it is satisfied that the accused person had reasonable notice of the first return date or the mention date.Note—The powers of a court to adjourn proceedings generally are set out in section 40.s 190: Ins 2001 No 119, Sch 1 [82]. Am 2014 No 59, Sch 1.6 [1]–[3].
191 Proceedings to be open to public
(1) Summary proceedings before a court are to be heard in open court.(2) This section is subject to the provisions of any other Act or law.ss 191–193: Ins 2001 No 119, Sch 1 [82].
192 Procedures where both parties present
(1) If both the accused person and the prosecutor are present at the day, time and place set for the hearing and determination of proceedings for an offence (including a day to which the hearing has been adjourned) the court must proceed to hear and determine the matter.(2) The court must state the substance of the offence to the accused person and ask the accused person if the accused person pleads guilty or not guilty.(3) Instead of hearing and determining the matter, the court may, if it thinks that the matter should not proceed on the specified day, adjourn the hearing to another day for mention or hearing.ss 191–193: Ins 2001 No 119, Sch 1 [82].
193 Procedure if offence admitted
(1) If the accused person pleads guilty, and does not show sufficient cause why he or she should not be convicted or not have an order made against him or her, the court must convict the accused person or make the order accordingly.(2) This section does not apply if the court does not accept the accused person’s guilty plea.ss 191–193: Ins 2001 No 119, Sch 1 [82].
194 Procedure if offence not admitted
(1) If the accused person pleads not guilty or fails or refuses to make a plea or the court does not accept the accused person’s guilty plea, the court must proceed to hear and determine the matter.(2) The court must hear the prosecutor, any witnesses and other evidence of the prosecutor and must hear the accused person and any witnesses and other evidence of the accused person.s 194: Ins 2001 No 119, Sch 1 [82]. Am 2003 No 40, Sch 1.10 [5].
195 How evidence is taken
(1) A prosecutor may give evidence and may examine and cross-examine the witnesses giving evidence for the prosecution or the accused person, respectively.(2) An accused person may make full answer and defence. An accused person may give evidence and may examine and cross-examine the witnesses giving evidence for the accused person or the prosecution, respectively.(3) If the accused person gives any evidence or examines any witness as to any matter other than as to the witness’s general character, the prosecutor may call and examine witnesses in reply.ss 195–198: Ins 2001 No 119, Sch 1 [82].
196 Procedure if accused person not present
(1) If the accused person is not present at the day, time and place set for the hearing and determination of the matter (including a day to which the hearing has been adjourned), the court may proceed to hear and determine the matter in the absence of the accused person in accordance with this Division.(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 a court attendance notice in relation to the offence, and(b) the accused person has been given notice of the hearing of the matter of the court attendance notice, andthe court may proceed to hear and determine the matter in the absence of the accused person in accordance with this Division.(c) the accused person does not appear on the day and at the time and place specified by the court attendance notice,(3) The court may not proceed to hear and determine the matter unless it is satisfied that the accused person had reasonable notice of the first return date or the date, time and place of the hearing.(4) If an offence is an indictable offence that may be dealt with summarily only if the accused person consents, the absence of the accused person is taken to be consent to the offence being dealt with summarily and the offence may be dealt with in accordance with this Division.ss 195–198: Ins 2001 No 119, Sch 1 [82].
197 Adjournment when accused person not present
(1) Instead of hearing and determining a matter in the absence of the accused person, the court may, if it thinks that the matter should not proceed on the specified day or without the accused person, adjourn the hearing to another day for mention or for hearing.(2) If a warrant is issued for the arrest of the accused person, the Magistrate or authorised officer before whom the accused person is brought after arrest may specify the date, time and place to which the proceedings are adjourned.Note—The court may at any time issue a warrant for the arrest of an absent accused person (see Division 2 of Part 4 which sets out procedures for warrants).ss 195–198: Ins 2001 No 119, Sch 1 [82].
198 Absent accused person taken to have pleaded not guilty
An accused person in proceedings who is absent from the proceedings and who has not lodged a written plea of guilty in accordance with section 182 is taken to have pleaded not guilty.ss 195–198: Ins 2001 No 119, Sch 1 [82].
199 Material to be considered when matter determined in absence of accused person
(1) The court may determine proceedings heard in the absence of the accused person on the basis of the court attendance notice without hearing the prosecutor’s witnesses or any other additional evidence of the prosecutor, if it is of the opinion that the matters set out in the court attendance notice are sufficient to establish the offence.(2) Before determining the matter, the court must consider any written material or recorded statement given to the court by the prosecutor, or lodged by the accused person under section 182.s 199: Ins 2001 No 119, Sch 1 [82]. Am 2014 No 83, Sch 1 [12].
200 When court may require prosecution to provide additional evidence
(1) The court may, in proceedings heard in the absence of the accused person, require the prosecution to provide additional evidence if it is of the opinion that the matters set out in the court attendance notice are not sufficient to establish the offence.(2) The additional evidence is not admissible unless—(a) it is in the form of written statements that comply with Division 3 of Part 2 of Chapter 3, including in the form of any recorded statement that may be given instead of a written statement under that Division, and(b) in the case of a written statement, a copy of any such statement has been given to the accused person a reasonable time before consideration of the additional evidence by the court, and(c) in the case of a recorded statement, the requirements of Division 3 of Part 4B of Chapter 6 in relation to service of, or access to, a recorded statement are complied with in relation to the recorded statement.(3) However, the court may require evidence to be given orally if it is not practicable to comply with subsection (2) or if the court thinks it necessary in the particular case.(4) The court must reject a written statement or recorded statement, or any part of a written statement or recorded statement, tendered in summary proceedings if the statement or part is inadmissible because of this section.s 200: Ins 2001 No 119, Sch 1 [82]. Am 2014 No 83, Sch 1 [13]–[16].
201 Procedure if prosecutor or both parties not present
(1) If the prosecutor is not present, or both the prosecutor and the accused person are not present, at the day, time and place set for the hearing and determination of the matter (including a day to which the hearing has been adjourned) the court must dismiss the information.(2) Despite subsection (1), the court may, if it thinks fit, instead of dismissing the information, adjourn the hearing to a specified day, time and place for mention or hearing.ss 201–204: Ins 2001 No 119, Sch 1 [82].
202 Determination by court
(1) The court must determine summary proceedings after hearing the accused person, prosecutor, witnesses and evidence in accordance with this Act.(2) The court may determine the matter by convicting the accused person or making an order as to the accused person, or by dismissing the matter.(3) In the case of a matter heard in the absence of the accused person, the court may adjourn the proceedings to enable the accused person to appear or be brought before the court for sentencing.Note—Section 25 of the Crimes (Sentencing Procedure) Act 1999 provides for the issue of warrants of arrest for absent defendants so that they may be brought before the Court for sentencing. Section 62 of that Act also provides for the issue of warrants of commitment after sentencing.ss 201–204: Ins 2001 No 119, Sch 1 [82].
203 Additional powers to adjourn summary proceedings
A court may adjourn summary proceedings before or at any stage of proceedings to enable the matter to be the subject of a mediation session under the Community Justice Centres Act 1983.ss 201–204: Ins 2001 No 119, Sch 1 [82].
204 Record of conviction or order to be made
(1) A court must make a record of any conviction or order made against the accused person in summary proceedings when the accused person is convicted or the order is made.(2) The court must give the accused person a copy of the record on request by the accused person.ss 201–204: Ins 2001 No 119, Sch 1 [82].
205 Order dismissing matter to be made
(1) A court may make an order of dismissal and give the accused person a certificate certifying that a matter has been dismissed if it decides to dismiss the matter.(2) A court must make an order of dismissal and give the accused person a certificate certifying that a matter has been dismissed if requested to do so by an accused person against whom a matter has been dismissed or by the prosecutor.(3) This section does not apply to a matter that is taken to be dismissed because of section 208.s 205: Ins 2001 No 119, Sch 1 [82]. Am 2007 No 57, Sch 1 [9].
206 Effect of certificate that matter has been dismissed
A certificate certifying that a matter has been dismissed, if produced and without any further proofs being required, prevents any later proceedings in any court for the same matter against the same person.s 206: Ins 2001 No 119, Sch 1 [82].
207 Power to set aside conviction or order before sentence
(1) An accused person may, at any time after conviction or an order has been made against the accused person and before the summary proceedings are finally disposed of, apply to the court to change the accused person’s plea from guilty to not guilty and to have the conviction or order set aside.(2) The court may set aside the conviction or order made against the accused person and proceed to determine the matter on the basis of the plea of not guilty.s 207: Ins 2001 No 119, Sch 1 [82].
208 Dismissal of matter if matter withdrawn
(1) If a matter is withdrawn by the prosecutor, the matter is taken to be dismissed and the accused person is taken to be discharged in relation to the offences concerned.(2) The dismissal of a matter because of its withdrawal by the prosecutor does not prevent any later proceedings in any court for the same matter against the same person.s 208: Ins 2001 No 119, Sch 1 [82]. Am 2007 No 57, Sch 1 [10].
209 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 heard in the absence of the accused person under this Part as if the accused person had been charged before the court with the offence to which the proceedings relate.s 209: Ins 2001 No 119, Sch 1 [82].
210 Penalties applying to traffic offences committed by children
(1) The Local Court may deal with a child found guilty of a traffic offence in accordance with Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987.(2) In so dealing with a child, the Local Court has and may exercise the functions of the Children’s Court under that Division as if the Local Court were the Children’s Court and the offence were an offence to which the Division applies.(3) The Local Court must not impose a sentence of imprisonment on a child found guilty of a traffic offence.(4) 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,traffic offence means an offence arising under a provision of—(a) the road transport legislation (within the meaning of the Road Transport Act 2013) or the former road transport legislation (within the meaning of Part 2 of Schedule 4 to that Act), 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.(f) the Motor Accident Injuries Act 2017,Note—Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987 sets out the penalties which the Children’s Court may impose on a child who has been found guilty of a summary offence.s 210: Ins 2001 No 119, Sch 1 [82]. Am 2005 No 11, Sch 3.7; 2007 No 94, Sch 3; 2008 No 54, Sch 2.2; 2013 No 19, Sch 4.13 [1]; 2017 No 10, Sch 5.3.
Division 4 Costs
ch 4, pt 2, div 4: Ins 2001 No 119, Sch 1 [82].
211 Definition
In this Part—professional costs means costs (other than court costs) relating to professional expenses and disbursements (including witnesses’ expenses) in respect of proceedings before a court.s 211: Ins 2001 No 119, Sch 1 [82].
211A Imposition of court costs levy
(1) An accused person who is convicted of an offence in summary proceedings before a court is, by virtue of the conviction, liable to pay a court costs levy that is of the amount prescribed by the regulations.(2) However, a court costs levy is not payable in relation to any of the following—(a) a conviction resulting in the imposition of a sentence of imprisonment (unless the execution of the sentence is suspended by the court),(b) an order under section 10 (1) (a) of the Crimes (Sentencing Procedure) Act 1999 in relation to an offence that is not punishable by imprisonment,(c) a finding of guilt in relation to a traffic offence (within the meaning of section 210 of this Act) by the Local Court when dealing with the accused person under Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987,(d) a conviction in proceedings before the Drug Court,(e) a conviction that the regulations exempt from liability to pay the levy.(3) A convicted person who is under the age of 18 years is not liable to pay the court costs levy if the court directs that the person is exempt from liability to pay the levy in respect of the conviction. Such a direction may be made when the court convicts the person, or at any time afterwards.(4) The court costs levy is in addition to, and does not form part of, any pecuniary penalty imposed in respect of the offence.(5) The court costs levy is to be paid to the registrar of the court. The registrar is to pay the levy to the prosecutor if court costs have been paid by the prosecutor in respect of the proceedings.(6) The commencement of any proceedings by way of appeal against, or review of, a conviction in respect of which the court costs levy has been imposed on a person stays the liability of the person to pay the levy. In such a case—(a) the setting aside of any such conviction annuls that liability, and(b) the dismissal of any such proceedings removes the stay of liability.(7) To avoid doubt, this section extends to—(a) proceedings conducted in the absence of the accused person, and(b) proceedings in which a person who was under the age of 18 years when an offence was allegedly committed pleads guilty to, or is found guilty of, an offence in proceedings before a court, but not if the person is dealt with under Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987.(8) In this section, a reference to a person being convicted includes a reference to an order being made in relation to the person under section 10 of the Crimes (Sentencing Procedure) Act 1999.Note 1—This section does not apply in respect of criminal proceedings before the Children’s Court (see section 27 (2A) of the Children (Criminal Proceedings) Act 1987). Section 42A of that Act provides for the Children’s Court to make orders regarding court costs at its discretion.Note 2—Section 4 of the Fines Act 1996 provides that a court costs levy payable under this section is, for the purposes of that Act, taken to be a fine imposed by the court that convicted the person or found the person guilty.s 211A: Ins 2013 No 8, Sch 1 [1].
212 When costs may be awarded
(1) A court may award costs in criminal proceedings only in accordance with this Act.(2) This Act does not affect the payment of costs under the Costs in Criminal Cases Act 1967.Note—The Costs in Criminal Cases Act 1967 contains procedures by which an accused person may obtain payment of costs from Government funds after acquittal or discharge or the quashing of a conviction.s 212: Ins 2001 No 119, Sch 1 [82].
213 When professional costs may be awarded to accused persons
(1) A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.(2) The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable.(3) Without limiting the operation of subsection (1), a court may order that the prosecutor in summary proceedings pay professional costs if the matter is dismissed because—(a) the prosecutor fails to appear or both the prosecutor and the accused person fail to appear, or(b) the matter is withdrawn or the proceedings are for any reason invalid.(4) (Repealed)(5) The order must specify the amount of professional costs payable.s 213: Ins 2001 No 119, Sch 1 [82]. Am 2006 No 23, Sch 2 [2] [3].
214 Limit on award of professional costs to accused person against prosecutor acting in public capacity
(1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more 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 prosecutor in an improper manner,(c) that the prosecutor 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 accused person 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 prosecutor, it is just and reasonable to award professional costs.(2) This section does not apply to the awarding of costs against a prosecutor acting in a private capacity.(3) An officer of an approved 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 prosecutor in any proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003.s 214: Ins 2001 No 119, Sch 1 [82]. Am 2003 No 87, Sch 3.7; 2006 No 23, Sch 2 [4].
215 When professional costs may be awarded to prosecutor
(1) A court may at the end of summary proceedings order that the accused person pay the following costs to the registrar of the court, for payment to the prosecutor, if the accused person is convicted or an order is made against the accused person—(a) such professional costs as the court considers just and reasonable,(b) (Repealed)(1A) The court may not order the accused person to pay professional costs referred to in subsection (1) (a) if the conviction or order concerned relates to an offence—(a) for which a penalty notice, within the meaning of section 20 of the Fines Act 1996, has been issued, and(b) in respect of which the person has elected to have the matter dealt with by a court, and(c) in respect of which the person has lodged a written plea of guilty, in accordance with section 182, not later than 7 days before the date on which the person is required to first attend before the court.(1B) Subsection (1A) does not apply in relation to proceedings for an offence against the Work Health and Safety Act 2011 or the regulations under that Act.(2) (Repealed)(3) The order must specify the amount of costs payable.(4) For the purposes of this section, an accused person is taken to have been convicted if an order is made under Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987 or under section 10 of the Crimes (Sentencing Procedure) Act 1999. The order for costs may be in the order under the relevant section.(5) This section applies to all summary proceedings, including orders made in proceedings conducted in the absence of the accused person.s 215: Ins 2001 No 119, Sch 1 [82]. Am 2006 No 23, Sch 2 [5]; 2011 No 67, Sch 4.6 [2]; 2013 No 8, Sch 1 [2]–[4].
216 Costs on adjournment
(1) A court may in any summary proceedings, at its discretion or on the application of a party, order that one party pay costs if the matter is adjourned.(2) An order may be made only if the court is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delays of the party against whom the order is made.(3) The order must specify the amount of costs payable or may provide for the determination of the amount at the end of the proceedings.(4) An order may be made whatever the result of the proceedings.s 216: Ins 2001 No 119, Sch 1 [82].
217 Enforcement of costs orders
An order made by a court under this Division for the payment of costs is taken to be a fine within the meaning of the Fines Act 1996.s 217: Ins 2001 No 119, Sch 1 [82].
218 Public officers and police officers not personally liable for costs
(1) A public officer or a police officer is entitled to be indemnified by the State for any costs awarded against the officer personally as the prosecutor in any criminal proceedings in a court in which the officer is acting in his or her capacity as a public officer or a police officer.(2) In this section—public officer does not include a councillor or an employee of a council or any other person prescribed by the regulations for the purposes of this section.s 218: Ins 2001 No 119, Sch 1 [82]. Am 2004 No 68, Sch 6 [5].
Division 5 Rules
ch 4, pt 2, div 5: Ins 2001 No 119, Sch 1 [82].
219 Rules
(1) The Rule Committee may make rules for or with respect to the following matters—(a) service of court attendance notices, briefs of evidence and other documents,(b) endorsement of service of court attendance notices and other documents,(c) procedures for adjourning, relisting and notifying accused persons about alternative offences,(d) additional requirements for the form of warrants,(e) the circumstances in which a person may obtain copies of documents relating to criminal proceedings,(f) assessment of costs on adjournment,(g) the form of submissions to a court about disputed costs,(h) forms to be used under this Act.(2) A court may in proceedings for a summary offence, if of the opinion that it is in the interests of justice to do so, dispense with or vary a requirement of the rules.(3) For the purposes of subsection (2), the Local Court may make directions as to the conduct of proceedings.(4) The power conferred by subsection (2) does not extend to any rule declared by the rules to be mandatory.s 219: Ins 2001 No 119, Sch 1 [82]. Am 2007 No 94, Sch 2
Part 3 Attendance of witnesses and production of evidence in lower courts
ch 4, pt 3: Ins 2001 No 119, Sch 1 [82].
220 Application
In addition to any other proceedings to which this Part applies, this Part applies to any proceedings prescribed by the regulations for the purposes of this section.s 220: Ins 2001 No 119, Sch 1 [82].
221 Definitions
In this Part—party means a prosecutor or an accused person in, or any other party to, proceedings to which this Part applies.person named in a subpoena means the person to whom the subpoena is addressed.subpoena includes any of the following—(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.s 221: Ins 2001 No 119, Sch 1 [82].
222 Issue of subpoenas
(1) A registrar, if requested to do so by a party to proceedings, is, subject to and in accordance with the rules, to issue to the person named any of the following subpoenas—(a) a subpoena to give evidence,(b) a subpoena for production,(c) a subpoena both to give evidence and for production.(2) If the prosecutor in proceedings is a public officer or a police officer, the officer may, subject to and in accordance with the rules, issue any such subpoena. The subpoena is to be filed and served in accordance with the rules.(2A) A police officer may issue a subpoena under subsection (2) on behalf of a public officer.(3) A subpoena to give evidence and a subpoena for production may be issued to the same person in the same proceedings.(4) A party may require a subpoena for production to be returnable—(a) on any day on which the proceedings are listed before a court, or any day not more than 21 days before any such day, or(b) with the leave of the court or a registrar, on any other day.s 222: Ins 2001 No 119, Sch 1 [82]. Am 2004 No 68, Sch 6 [6]; 2008 No 107, Sch 7 [3]; 2018 No 87, Sch 1.15 [3].
223 Time for service of subpoenas
(1) A subpoena must be served within a reasonable time and at least 5 days before the last day on which it must be complied with.(2) A registrar may, on application by the party concerned, permit a subpoena to be served later than the time permitted by subsection (1). The later time must be endorsed on the subpoena by the registrar.(3) A subpoena may be served by delivering a copy of the subpoena to the person named or in any other manner prescribed by the rules.s 223: Ins 2001 No 119, Sch 1 [82].
224 Conduct money
Unless a court otherwise orders, a subpoena issued at the request of a party other than a prosecutor who is a public officer or a police officer 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.s 224: Ins 2001 No 119, Sch 1 [82]. Am 2004 No 68, Sch 6 [7].
225 Limits on obligations under subpoenas
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.ss 225–229: Ins 2001 No 119, Sch 1 [82].
226 Production by non-party
(1) If the person named in a subpoena for production is not a party to the proceedings, the subpoena is, unless a court otherwise orders, to permit the person to produce the document or thing to the 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) The rules may make provision for or with respect to the production of documents or things produced to a court under subsection (1), and the return of the document or thing, and any related matters.(3) Nothing in this Part affects the operation of Division 1 of Part 4.6 of the Evidence Act 1995 (Requests to produce documents or call witnesses).ss 225–229: Ins 2001 No 119, Sch 1 [82].
227 Subpoena may be set aside
(1) A 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 this section is to be filed and served as prescribed by the rules on the party on whose request, or by whom, the subpoena was issued.ss 225–229: Ins 2001 No 119, Sch 1 [82].
228 Inspection of subpoenaed documents and things
(1) A party may, if a 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 court thinks fit.(3) A registrar may exercise the function of a court to make an order under this section unless—(a) the 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 court in the manner prescribed by the rules that the party or person objects to the making of an order under this section.ss 225–229: Ins 2001 No 119, Sch 1 [82].
229 Action that may be taken if person does not comply with subpoena
(1) A party who requested, or issued, a subpoena may apply to the court for the issue of a warrant under Part 4 for the arrest of the person named if the person named has not complied with the subpoena.(2) The court may issue the warrant if satisfied that—(a) the person named has not complied with the subpoena, and(b) the requirements of this Part for subpoenas were complied with and no just or reasonable excuse has been offered for the failure to comply.(3) A Magistrate or an authorised officer before whom a person is brought on arrest on a warrant issued under this section may, if bail is not dispensed with or granted, issue a warrant—(a) committing the person to a correctional centre or other place of security, and(b) ordering the person to be brought before a court at the date, time and place specified in the order.(4) The Magistrate or authorised officer must give notice of the date, time and place set to the party who issued or requested the subpoena.Note—Division 2 of Part 4 sets out procedures for arrest warrants generally.ss 225–229: Ins 2001 No 119, Sch 1 [82].
230 Application of Bail Act 2013—bail decisions made by courts
(1) A court may make a bail decision under the Bail Act 2013 in respect of a person brought before the court after having been arrested under a warrant referred to in section 229.(2) The Bail Act 2013 applies to the person as if—(a) the person were accused of an offence, and(b) the proceedings in which the person is required to be examined or produce a document or thing were proceedings for that offence.(3) Bail may be granted for the period between—(a) the person’s being brought before a 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.Note—See section 43A of the Bail Act 2013 for a provision relating to bail decisions made by police officers.s 230: Ins 2001 No 119, Sch 1 [82]. Subst 2014 No 5, Sch 2.15 [4]. Am 2019 No 20, Sch 1.10[7].
231 Action that may be taken if witness refuses to give evidence
(1) This section applies to a person who—(a) appears before a court on a subpoena, or(b) appears before a court on bail after being arrested under a warrant after failing to comply with a subpoena, orto give evidence, or produce any document or thing, or both.(c) is brought before a court under a warrant of commitment after being so arrested,(2) The 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.Note—Division 3 of Part 4 sets out procedures for warrants of commitment generally.(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) This Part applies in relation to a subpoena to the exclusion of section 194 (Witnesses failing to attend proceedings) of the Evidence Act 1995.(5) In this section, a reference to a person who appears before a court on bail after being arrested under a warrant after failing to comply with a subpoena includes a reference to a person in respect of whom bail has been dispensed with after being so apprehended.s 231: Ins 2001 No 119, Sch 1 [82]. Am 2014 No 5, Sch 2.15 [5].
232 Rules relating to subpoenas
The Rule Committee may make rules for or with respect to the following matters—(a) the form of subpoenas,(b) the production of documents or things to the registrar and the inspection of the documents or things,(c) the return of subpoenas to parties,(d) conduct money,(e) hearing of objections to subpoenas.s 232: Ins 2001 No 119, Sch 1 [82].
Part 4 Warrants
ch 4, pt 4: Ins 2001 No 119, Sch 1 [82].
Division 1 Preliminary
ch 4, pt 4, div 1 (ss 233, 234): Ins 2001 No 119, Sch 1 [82].
233 Application
In addition to warrants issued in, or in connection with, proceedings to which this Part applies because of section 170, this Part applies to warrants that may be issued under Part 3.ch 4, pt 4, div 1 (ss 233, 234): Ins 2001 No 119, Sch 1 [82].
234 Definition
In this Part—named person means the person named in a warrant.ch 4, pt 4, div 1 (ss 233, 234): Ins 2001 No 119, Sch 1 [82].
Division 2 Arrest warrants
ch 4, pt 4, div 2: Ins 2001 No 119, Sch 1 [82].
235 When arrest warrants may be issued for accused persons
A warrant to arrest a person may be issued on any day of the week.s 235: Ins 2001 No 119, Sch 1 [82].
236 Form of arrest warrant
(1) A warrant to arrest a person must be in the form prescribed by the rules.(2) Without limiting subsection (1), the warrant must be directed to a person permitted by this Division to execute the warrant and must do the following things—(a) name or describe the person to be arrested,(b) briefly state the subject-matter of the court attendance notice or reason for the arrest,(c) order that the person be arrested and brought before the Judge, Magistrate or authorised officer to be dealt with according to law or to give evidence or produce documents or things, as appropriate.(3) A warrant to arrest a person must be signed by the person issuing it and sealed with the seal of the court to which the person issuing it is attached.(4) However, an authorised officer may sign a warrant issued under this Act if a Judge or Magistrate has directed in writing that the warrant be issued.s 236: Ins 2001 No 119, Sch 1 [82]. Am 2003 No 40, Sch 1.10 [6]; 2008 No 107, Sch 7 [4] [5].
237 Duration of arrest warrants
(1) A warrant to arrest an accused person need not be returnable at any particular time. If it is not, the warrant continues in force until it expires.(1A) A warrant to arrest an accused person in respect of an offence specified in the Table below expires at the end of the period specified in the Table in relation to the offence.
238 Persons who may execute arrest warrant
(1) A warrant to arrest a person must be directed to—(a) a named police officer, or(b) a person authorised by law to execute a warrant to arrest, or(c) the senior police officer of the area where the court is located, or(d) the senior police officer and all other police officers, or(e) generally all police officers.(2) A warrant to arrest a person may be carried out by arresting the accused or witness at any place in New South Wales.s 238: Ins 2001 No 119, Sch 1 [82].
239 Procedure after arrest
A person who is arrested under a warrant must be brought before a Judge, a Magistrate or an authorised officer as soon as practicable.s 239: Ins 2001 No 119, Sch 1 [82]. Am 2008 No 107, Sch 7 [6].
240 Revocation of warrants
(1) Any warrant to arrest a person may be revoked by a Judge, Magistrate or authorised officer if—(a) the party who requested the warrant applies to the Judge, Magistrate or authorised officer to revoke the warrant, or(b) the Judge, Magistrate or authorised officer is of the opinion that it is appropriate to do so.(2) A Judge, Magistrate or authorised officer may revoke a warrant even though it was issued by another Judge, Magistrate or authorised officer. A Magistrate may not revoke a warrant issued by a Judge. An authorised officer may not revoke a warrant issued by a Judge or Magistrate.s 240: Ins 2001 No 119, Sch 1 [82]. Am 2002 No 99, Sch 1.2 [8]–[10]; 2008 No 107, Sch 7 [7] [8].
Division 3 Warrants of commitment
ch 4, pt 4, div 3: Ins 2001 No 119, Sch 1 [82].
241 Power to commit person to correctional centre subject to Bail Act 2013
A power to issue a warrant to commit a person to a correctional centre or other place under this Act is subject to the provisions of the Bail Act 2013.Note—The Bail Act 2013 sets out the circumstances when bail must or may be granted or may be dispensed with by a court.s 241: Ins 2001 No 119, Sch 1 [82]. Am 2014 No 5, Sch 2.15 [6] [7].
242 Form of warrants of commitment
(1) A warrant to commit a person must be in the form prescribed by the rules.(2) Without limiting subsection (1), the warrant must be directed to a person permitted by the rules to execute the warrant and must do the following things—(a) name or describe the person to be committed,(b) direct and authorise the person to take and safely convey the named person to the correctional centre or other place,(c) direct the person to deliver the named person to the officer in charge of the place,(d) direct and authorise the officer in charge of the place to receive the named person in custody and to keep the named person in custody for the period specified, or in the circumstances specified, or until the named person is otherwise lawfully released from custody.(3) A warrant to commit a witness to a correctional centre, lock-up or a place of security must not require the witness to be kept in custody for more than 7 days.(4) An authorised officer may sign a warrant to commit a person if a Judge or Magistrate has directed in writing that the warrant be issued.s 242: Ins 2001 No 119, Sch 1 [82]. Am 2008 No 107, Sch 7 [9].
243 Procedure for taking person to correctional centre or other place
(1) The person to whom a warrant issued under this Division to commit a person to a correctional centre or other place is directed must take the named person to the correctional centre or other place specified in the warrant and deliver the named person to the person in charge of the place.(2) The person executing the warrant must obtain a receipt for the delivery of the named person setting out the condition of the named person when delivered into the custody of the person in charge.s 243: Ins 2001 No 119, Sch 1 [82].
244 Defects in warrants of commitment
A warrant to commit an accused person to a correctional centre or other place may not be held void because of any defect in the warrant if the warrant states that—(a) the accused person has been convicted or ordered to do or abstain from doing any act or thing required to be done or not done, and(b) there is a good and valid conviction or order to sustain the warrant.s 244: Ins 2001 No 119, Sch 1 [82].
Part 5 Summary jurisdiction of Supreme Court and other higher courts
ch 4, pt 5: Ins 2001 No 119, Sch 1 [82].
Division 1 Jurisdiction
ch 4, pt 5, div 1 (s 245): Ins 2001 No 119, Sch 1 [82].
245 Summary jurisdiction of Supreme Court
(1) If, under any Act, proceedings may be taken before the Supreme Court in its summary jurisdiction, the Court has jurisdiction to hear and determine those proceedings in a summary manner.(2) The summary jurisdiction conferred on the Supreme Court by subsection (1), or under any other Act on any other court to which this Part applies, is to be exercised by a Judge sitting alone, and not otherwise.Note—Section 170 sets out the courts to which this Part applies.ch 4, pt 5, div 1 (s 245): Ins 2001 No 119, Sch 1 [82].
Division 2 Appearance of accused persons
ch 4, pt 5, div 2: Ins 2001 No 119, Sch 1 [82].
246 Orders for appearance or apprehension of accused persons
(1) A prosecutor may apply for an order—(a) that a person alleged in the application to have committed an offence that may be dealt with summarily by the court must appear at a time and place specified in the order to answer to the offence charged in the order, or(b) for the apprehension of any such person for the purpose of being brought before a Judge to answer to the offence charged in the order.(2) The application must be in accordance with the rules.(3) The order may be made in the absence of one or both parties.(4) An order for the apprehension of a person may be made whether or not an order has been made under subsection (1) (a).(5) An order for the apprehension of a person—(a) must be addressed to all police officers, and(b) may be addressed to any other person specified in the order, and(c) may be executed by any police officer or by any person to whom it is addressed at any place at which, had the offence specified in the order been committed at that place, that offence would be triable in the court.(6) A Judge before whom a person apprehended under an order made under this section is brought may, if bail is not dispensed with or granted, issue a warrant—(a) committing the person to a correctional centre or other place of security, and(b) ordering the person to be brought before a court at the date, time and place specified in the order.s 246: Ins 2001 No 119, Sch 1 [82].
247 Notices to be given to prosecutor
(1) The registrar must, as soon as practicable after the making of any order under section 246, cause notice of the order to be given to the prosecutor.(2) The registrar must, as soon as practicable after a notice of a requirement to appear is given or sent (as referred to in section 33 of the Bail Act 2013) to a person referred to in section 246, cause a copy of the notice to be given to the prosecutor.s 247: Ins 2001 No 119, Sch 1 [82]. Am 2014 No 5, Sch 2.15 [8].
Division 2A Case management provisions and other provisions to reduce delays in proceedings
ch 4, pt 5, div 2A: Ins 2012 No 10, Sch 1 [3].
247A Application
This Division applies to proceedings before the Supreme Court, or the Land and Environment Court, in its summary jurisdiction.ss 247A–247D: Ins 2012 No 10, Sch 1 [3].
247B Purpose
(1) The purpose of this Division is to reduce delays in proceedings before the court in its summary jurisdiction by—(a) requiring certain preliminary disclosures to be made by the prosecution and the defence before the proceedings are heard, and(b) enabling the court to undertake case management where suitable in those proceedings, whether on its own motion or on application by a party to the proceedings.(2) Case management measures that are available to the court under this Division include the ordering of preliminary hearings, preliminary conferences and further preliminary disclosure. The court has a discretion in determining which (if any) of those measures are suitable in the proceedings concerned.ss 247A–247D: Ins 2012 No 10, Sch 1 [3].
247C Definitions
(1) In this Division—appearance order means an order for the appearance or apprehension of a person made under section 246.court means the Supreme Court or the Land and Environment Court.preliminary conference means a conference held under section 247H.preliminary hearing means a hearing held under section 247G.presiding Judge means the judge presiding at the hearing of the proceedings.(2) In this Division, a reference to the defendant is to be read as including a reference to the Australian legal practitioner representing the defendant.ss 247A–247D: Ins 2012 No 10, Sch 1 [3].
247D Directions for conduct of proceedings
At the first mention of proceedings, the court is to give directions with respect to the future conduct of the proceedings, including a direction as to the time by which notice of the prosecution case is to be given under section 247E and notice of the defence response is to be given under section 247F.ss 247A–247D: Ins 2012 No 10, Sch 1 [3].
247E Notice of prosecution case to be given to defendant
(1) The prosecutor is to give to the defendant notice of the prosecution case that includes the following—(a) a copy of the application for any appearance order relating to the defendant,(b) a statement of facts,(c) a copy of the affidavit or statement (whichever is applicable) of each witness whose evidence the prosecutor proposes to adduce at the hearing of the proceedings,(c1) in accordance with Division 3 of Part 4B of Chapter 6, a copy of any recorded statement of a witness that the prosecutor proposes to adduce at the hearing of the proceedings,(d) a copy of each document, evidence of the contents of which the prosecutor proposes to adduce at the hearing of the proceedings,(e) if the prosecutor proposes to adduce evidence at the hearing of the proceedings in the form of a summary, a copy of the summary or, where the summary has not yet been prepared, an outline of the summary,(f) a copy of any exhibit that the prosecutor proposes to adduce at the hearing of the proceedings,(g) a copy of any chart or explanatory material that the prosecutor proposes to adduce at the hearing of the proceedings,(h) if any expert witness is proposed to be called at the hearing by the prosecutor, a copy of each report by the witness that is relevant to the case,(i) a copy of any information, document or other thing provided by authorised officers to the prosecutor, or otherwise in the possession of the prosecutor, that may reasonably be regarded as relevant to the prosecution case or the defence case, and that has not otherwise been disclosed to the defendant,(j) a list identifying—(i) any information, document or other thing of which the prosecutor is aware and that would reasonably be regarded as relevant to the case but that is not in the prosecutor’s possession and is not in the defendant’s possession, and(ii) the place at which the prosecutor believes the information, document or other thing is situated,(k) a copy of any information in the possession of the prosecutor that is relevant to the reliability or credibility of a prosecution witness.(2) The regulations may make provision for or with respect to the form and content of a statement of facts for the purposes of subsection (1) (b).(3) In this section, an includes the following—(a) a police officer,(b) any person authorised by an Act in respect of which proceedings may be brought before the Supreme Court or the Land and Environment Court in its summary jurisdiction to investigate any contravention, or suspected contravention, of that Act.s 247E: Ins 2012 No 10, Sch 1 [3]. Am 2014 No 83, Sch 1 [17].
247F Notice of defence response to be given to prosecutor
The defendant is to give the prosecutor notice of the defence response that includes the following—(a) the name of any Australian legal practitioner proposed to appear on behalf of the defendant at the hearing of the proceedings,(b) notice of any consent that the defendant proposes to give at the hearing of the proceedings under section 190 of the Evidence Act 1995 in relation to each of the following—(i) a statement of a witness that the prosecutor proposes to adduce at the hearing of the proceedings,(ii) a summary of evidence that the prosecutor proposes to adduce at the hearing of the proceedings.ss 247F–247P: Ins 2012 No 10, Sch 1 [3].
247G Preliminary hearings
(1) At the first mention of proceedings or at any other time, the court may order the prosecutor and the defendant to attend one or more preliminary hearings before the court.(2) During a preliminary hearing, the court may make such orders, determinations or findings, or give such directions or rulings, as it thinks appropriate for the efficient management and conduct of the proceedings.(3) Without limiting subsection (2), the court may take any or all of the following action under that subsection—(a) hear and determine an objection to any application for an appearance order prior to the commencement of a trial,(b) order the holding of a preliminary conference under section 247H,(c) order preliminary disclosure by the prosecutor or the defendant under section 247I,(d) give a direction under section 247M (3),(e) give a ruling or make a finding under section 192A of the Evidence Act 1995 as if the trial or sentencing hearing had commenced,(f) hear and determine a submission that the case should not proceed to trial prior to the commencement of the trial,(g) give a ruling on any question of law that might arise at the trial or sentencing hearing.(4) Despite any other provision of this Act, the court may make any order, determination or finding, or give any ruling, under this section on application by a party to the proceedings or on the court’s own initiative.(5) Any order, determination or finding made, or ruling given, by the court under this section is binding on the presiding Judge in the proceedings unless, in the opinion of the presiding Judge, it would not be in the interests of justice for the order, determination, finding or ruling to be binding.(6) Except with the leave of the court, a party to proceedings may not raise a relevant preliminary hearing matter if a preliminary hearing was held in the proceedings and—(a) the matter was not raised at the preliminary hearing, or(b) the matter was dealt with at the preliminary hearing.(7) A relevant preliminary hearing matter means—(a) an objection to an application for an appearance order, or(b) a question that was the subject of a ruling or finding under subsection (3) (e).(8) Except with the leave of the court, a party to proceedings may not raise a question of law that was the subject of a ruling under subsection (3) (g) if a preliminary hearing was held in the proceedings and the matter was dealt with at the preliminary hearing.(9) Leave is not to be granted under subsection (6) or (8) unless the court is of the opinion that it would be contrary to the interests of justice to refuse leave to raise the matter concerned.ss 247F–247P: Ins 2012 No 10, Sch 1 [3].
247H Preliminary conferences
(1) At the first mention of proceedings or at any other time, the court may order that a preliminary conference is to be held so long as the time appointed for any such conference occurs after the proceedings have commenced.(2) The court may order the holding of a preliminary conference under this section on application of any party or on the court’s own initiative.(3) The court may make such an order only if the defendant will be represented by an Australian legal practitioner at the preliminary conference.(4) The purpose of the preliminary conference is to determine whether the defendant and the prosecutor are able to reach agreement regarding the evidence to be admitted at the trial or sentencing hearing.(5) The following persons must be present during the preliminary conference—(a) the prosecutor,(b) the Australian legal practitioner representing the defendant.(6) A joint preliminary conference may be held in respect of 2 or more co-defendants, but only if—(a) in the case of a preliminary conference held before trial—the prosecution and each of the co-defendants concerned consent to the joint preliminary conference, or(b) in the case of a preliminary conference held before sentencing—(i) the defendant and each co-defendant have pleaded guilty to the offence or have been found guilty of the offence by the court, and(ii) the prosecution and each of the co-defendants concerned consent to the joint preliminary conference.(7) A requirement under this section that a person be present for the purposes of a preliminary conference is taken to be satisfied if the person is present or available by way of an audio visual link or audio link.(8) Within 7 days after the holding of a preliminary conference—(a) the prosecutor and the Australian legal practitioner who represented the defendant at the preliminary conference must complete a preliminary conference form, and(b) the prosecutor must file the preliminary conference form with the court.(9) The preliminary conference form—(a) is to indicate the areas of agreement and disagreement between the defendant and the prosecutor regarding the evidence to be admitted at the trial or sentencing hearing, and(b) is to be signed by the prosecutor and the Australian legal practitioner representing the defendant.(10) Except with the leave of the court, a party to proceedings may not object to the admission of any evidence at the hearing of the proceedings if the preliminary conference form indicates that the parties have agreed that the evidence is not in dispute.(11) Leave is not to be granted under subsection (10) unless the court is of the opinion that it would be contrary to the interests of justice to refuse leave.ss 247F–247P: Ins 2012 No 10, Sch 1 [3].
247I Court may order preliminary disclosure in particular case
(1) After proceedings have been commenced, the court may make any or all of the following orders, but only if the court is of the opinion that it would be in the interests of justice to do so—(a) order that the prosecutor is to give to the defendant notice in accordance with section 247J,(b) order that the defendant is to give to the prosecutor notice of the defence response to the prosecution’s notice in accordance with section 247K,(c) order that the prosecution is to give to the defendant notice of the prosecution response to the defence response in accordance with section 247L.(2) The court may order preliminary disclosure under this section on the application of any party or on the court’s own initiative.(3) The court may order preliminary disclosure by the defendant only if the court is satisfied that the defendant will be represented by an Australian legal practitioner.(4) The court may limit preliminary disclosure to any specified aspect of the proceedings.(5) Preliminary disclosure required by an order under this section is to be made in accordance with a timetable determined by the court.ss 247F–247P: Ins 2012 No 10, Sch 1 [3].
247J Prosecution notice—court-ordered preliminary disclosure
For the purposes of section 247I (1) (a), the prosecution’s notice is to contain the following—(a) the matters required to be included in the notice of the prosecution case under section 247E,(b) a copy of any information, document or other thing in the possession of the prosecutor that would reasonably be regarded as adverse to the credit or credibility of the defendant,(c) a list identifying the affidavits or statements of those witnesses who are proposed to be called at the hearing of the proceedings by the prosecutor.Note—The prosecutor is not required to include in a notice anything that has already been included in a brief of evidence in relation to the matter served on the defendant or that has otherwise been provided or disclosed to the defendant (see section 247U (1)).ss 247F–247P: Ins 2012 No 10, Sch 1 [3].
247K Defence response—court-ordered preliminary disclosure
For the purposes of section 247I (1) (b), the notice of the defence response is to contain the following—(a) the matters required to be included in a notice under section 247F,(b) a statement, in relation to each fact set out in the statement of facts provided by the prosecutor, as to whether the defendant considers the fact is an agreed fact (within the meaning of section 191 of the Evidence Act 1995) or the defendant disputes the fact,(c) a statement, in relation to each matter and circumstance set out in the statement of facts provided by the prosecutor, as to whether the defendant takes issue with the matter or circumstance as set out,(d) notice as to whether the defendant proposes to dispute the admissibility of any proposed evidence disclosed by the prosecutor and the basis for the objection,(e) if the prosecutor disclosed an intention to adduce expert evidence at the hearing of the proceedings, notice as to whether the defendant disputes any of the expert evidence and which evidence is disputed,(f) a copy of any report, relevant to the proceedings, that has been prepared by a person whom the defendant intends to call as an expert witness at the hearing of the proceedings,(g) if the prosecutor disclosed an intention to adduce evidence at the hearing of the proceedings that has been obtained by means of surveillance, notice as to whether the defendant proposes to require the prosecutor to call any witnesses to corroborate that evidence and, if so, which witnesses will be required,(h) notice as to whether the defendant proposes to raise any issue with respect to the continuity of custody of any proposed exhibit disclosed by the prosecutor,(i) if the prosecutor disclosed an intention to tender at the hearing of the proceedings any transcript, notice as to whether the defendant accepts the transcript as accurate and, if not, in what respect the transcript is disputed,(j) notice as to whether the defendant proposes to dispute the authenticity or accuracy of any proposed documentary evidence or other exhibit disclosed by the prosecutor,(k) notice of any significant issue the defendant proposes to raise regarding an application for an appearance order, severability of the charges or separate trials or sentencing proceedings for the charges,(l) notice of any consent the defendant proposes to give under section 184 of the Evidence Act 1995.Note—The defendant is not required to include in a notice anything that has already been provided or disclosed to the prosecutor (see section 247U (2)).ss 247F–247P: Ins 2012 No 10, Sch 1 [3].
247L Prosecution response to defence response—court-ordered preliminary disclosure
For the purposes of section 247I (1) (c), the notice of the prosecution response to the defence response is to contain the following—(a) if the defendant has disclosed an intention to adduce expert evidence at the hearing of the proceedings, notice as to whether the prosecutor disputes any of the expert evidence and, if so, in what respect,(b) if the defendant has disclosed an intention to tender any exhibit at the hearing of the proceedings, notice as to whether the prosecutor proposes to raise any issue with respect to the continuity of custody of the exhibit,(c) if the defendant has disclosed an intention to tender any documentary evidence or other exhibit at the hearing of the proceedings, notice as to whether the prosecutor proposes to dispute the accuracy or admissibility of the documentary evidence or other exhibit,(d) notice as to whether the prosecutor proposes to dispute the admissibility of any other proposed evidence disclosed by the defendant, and the basis for the objection,(e) a copy of any information, document or other thing in the possession of the prosecutor, not already disclosed to the defendant, that might reasonably be expected to assist the case for the defence,(f) a copy of any information, document or other thing that has not already been disclosed to the defendant and that is required to be contained in the notice of the case for the prosecution.ss 247F–247P: Ins 2012 No 10, Sch 1 [3].
247M Dispensing with formal proof
(1) If a fact, matter or circumstance was alleged in a notice required to be given to the defendant by the prosecutor in accordance with this Division and the defendant was required to give a defence response under section 247K but did not disclose in the response an intention to dispute or require proof of the fact, matter or circumstance, the court may order that—(a) a document asserting the alleged fact, matter or circumstance may be admitted at the hearing of the proceedings as evidence of the fact, matter or circumstance, and(b) evidence may not, without the leave of the court, be adduced to contradict or qualify the alleged fact, matter or circumstance.(2) If evidence was disclosed by the prosecution to the defendant in accordance with this Division and the defendant was required to give a defence response under section 247K but did not disclose in the response an intention to dispute the admissibility of the evidence and the basis for the objection, the court may, by order, dispense with the application of any one or more of the following provisions of the Evidence Act 1995 in relation to the adducing of the evidence at the hearing of the proceedings—(a) Division 3, 4 or 5 of Part 2.1,(b) Part 2.2 or 2.3,(c) Parts 3.2–3.8.(3) The court may, on the application of a party, direct that the party may adduce evidence of 2 or more witnesses in the form of a summary if the court is satisfied that—(a) the summary is not misleading or confusing, and(b) admission of the summary instead of evidence from the witnesses will not result in unfair prejudice to any party to the proceedings.(4) The court may, in a direction under subsection (3), require that one or more of the witnesses whose evidence is to be adduced in the form of a summary are to be available for cross-examination.(5) The opinion rule (within the meaning of the Evidence Act 1995) does not apply to evidence adduced in accordance with a direction under subsection (3).(6) The provisions of this section are in addition to the provisions of the Evidence Act 1995, in particular, section 190.(7) This section does not affect section 4 (2) of the Evidence Act 1995.Note—Section 4 (2) of the Evidence Act 1995 provides that the Act applies in proceedings relating to sentencing only if the court directs that the law of evidence apply in the proceedings.ss 247F–247P: Ins 2012 No 10, Sch 1 [3].
247N Sanctions for non-compliance with preliminary disclosure requirements
(1) Exclusion of evidence not disclosed The court may refuse to admit evidence in proceedings that is sought to be adduced by a party who failed to disclose the evidence to the other party in accordance with requirements for preliminary disclosure imposed by or under this Division.Note—The only evidence required from a defendant in the context of a preliminary disclosure is expert evidence (see section 247K (f)). Accordingly, such evidence may also be dealt with by the court under subsection (2).(2) Exclusion of expert evidence where report not provided The court may refuse to admit evidence from an expert witness in proceedings that is sought to be adduced by a party if the party failed to give the other party a copy of a report by the expert witness in accordance with requirements for preliminary disclosure imposed by or under this Division.(3) Adjournment The court may grant an adjournment to a party if the other party seeks to adduce evidence in the proceedings that the other party failed to disclose in accordance with requirements for preliminary disclosure imposed by or under this Division and that would prejudice the case of the party seeking the adjournment.(4) Application of sanctions Without limiting the regulations that may be made under subsection (5), the powers of the court may not be exercised under this section to prevent a defendant adducing evidence unless the prosecutor has complied with the requirements for preliminary disclosure imposed on the prosecution by or under this Division.(5) Regulations The regulations may make provision for or with respect to the exercise of the powers of a court under this section (including the circumstances in which the powers may not be exercised).ss 247F–247P: Ins 2012 No 10, Sch 1 [3].
247O Disclosure requirements are ongoing
(1) The obligation to comply with the requirements for preliminary disclosure imposed by or under this Division continues until any of the following happens—(a) the defendant is acquitted of the charges to which the proceedings relate,(b) the prosecution is terminated,(c) the defendant is sentenced for the offence to which the proceedings relate.(2) Accordingly, if any information, document or other thing is obtained or anything else occurs after preliminary disclosure is made by a party to the proceedings that would have affected that preliminary disclosure had the information, document or thing been obtained or the thing occurred before preliminary disclosure was made, the information, document, thing or occurrence is to be disclosed to the other party to the proceedings as soon as practicable.ss 247F–247P: Ins 2012 No 10, Sch 1 [3].
247P Court may waive requirements
(1) A court may, by order, waive any of the requirements that apply under this Division.(2) The court may make such an order on its own initiative or on the application of the prosecutor or the defendant.(3) An order may be made subject to such conditions (if any) as the court thinks fit.ss 247F–247P: Ins 2012 No 10, Sch 1 [3].
247Q Requirements as to notices
(1) A notice under this Division is to be in writing.(2) Any notice purporting to be given under this Division on behalf of the defendant by his or her Australian legal practitioner is, unless the contrary is proved, taken to have been given with the authority of the defendant.(3) A notice under this Division that is required to be given to a prosecutor may be given to the prosecutor in the following manner, or as otherwise directed by the court—(a) by delivering it to the prosecutor,(b) by leaving it at the office of the prosecutor,(c) by sending it by post or facsimile to the prosecutor at the office of the prosecutor,(d) by sending it by electronic mail to the prosecutor, but only if the prosecutor has agreed to notice being given in that manner.(4) A notice under this Division that is required to be given to a defendant may be given to the defendant in the following manner, or as otherwise directed by the court—(a) by delivering it to the defendant,(b) by leaving it at the office of the Australian legal practitioner representing the defendant,(c) by sending it by post or facsimile to the Australian legal practitioner representing the defendant at the office of the Australian legal practitioner,(d) by sending it by electronic mail to the Australian legal practitioner, but only if the Australian legal practitioner has agreed to notice being given in that manner.(5) A party required to give a notice under this Division must file a copy of the notice with the court as soon as practicable after giving it, or as otherwise required by the court.(6) Nothing in this section requires a recorded statement to be given to a defendant other than in accordance with Division 3 of Part 4B of Chapter 6.s 247Q: Ins 2012, No 10, Sch 1 [3]. Am 2014 No 83, Sch 1 [18].
247R Copies of exhibits and other things not to be provided if impracticable
(1) A copy of a proposed exhibit, document or thing is not required to be included in a notice under this Division if it is impossible or impractical to provide a copy.(2) However, the party required to give the notice—(a) is to specify in the notice a reasonable time and place at which the proposed exhibit, document or thing may be inspected, and(b) is to allow the other party to the proceedings a reasonable opportunity to inspect the proposed exhibit, document or thing referred to in the notice.ss 247R–247W: Ins 2012 No 10, Sch 1 [3].
247S Personal details not to be provided
(1) The prosecutor is not to disclose in any notice under this Division the address or telephone number of any witness proposed to be called by the prosecutor, or of any other living person, unless—(a) the address or telephone number is a materially relevant part of the evidence, or(b) the court makes an order permitting the disclosure.(2) An application for such an order may be made by the defendant or the prosecutor.(3) The court must not make such an order unless satisfied that the 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 of the evidence for the prosecution) outweigh any such risk.(4) This section does not prevent the disclosure of an address if the disclosure does not identify it as a particular person’s address, or it could not reasonably be inferred from the matters disclosed that it is a particular person’s address.(5) An address or telephone number that must not be disclosed may, without reference to the person who made the affidavit or statement being disclosed, be deleted from that affidavit or statement, or rendered illegible, before the affidavit or statement is given to the defendant.ss 247R–247W: Ins 2012 No 10, Sch 1 [3].
247T Requirements as to statements of witnesses
(1) A statement of a witness that is included in a notice under this Division may be in the form of questions and answers.(2) If a notice includes a statement that is, wholly or in part, in a language other than English, there must be annexed to it a document purporting to contain a translation of the statement, or so much of it as is not in the English language, into the English language.ss 247R–247W: Ins 2012 No 10, Sch 1 [3].
247U Exemption for matters previously disclosed
(1) The prosecutor is not required to include in a notice under this Division anything that has already been included in a brief of evidence in relation to the matter served on the defendant in accordance with this or any other Act or that has otherwise been provided or disclosed to the defendant.(2) The defendant is not required to include in a notice under this Division anything that has already been provided or disclosed to the prosecutor.ss 247R–247W: Ins 2012 No 10, Sch 1 [3].
247V Court powers to ensure efficient management and conduct of trial or sentencing hearing
(1) On or after the commencement of the trial or sentencing hearing, the court may make such orders, determinations or findings, or give such directions or rulings, as it thinks appropriate for the efficient management and conduct of the trial or sentencing hearing.(2) Without limiting subsection (1), the court may order that any of the parties to the proceedings disclose any matter that was, or could have been, required to be disclosed under this Division before the commencement of the trial or sentencing hearing.ss 247R–247W: Ins 2012 No 10, Sch 1 [3].
247W Preliminary orders and other orders bind presiding Judge
(1) A preliminary order made in proceedings is binding on the presiding Judge in those proceedings unless, in the opinion of the presiding Judge, it would not be in the interests of justice for the order to be binding.(2) If, on an appeal against conviction or sentence, a new trial or sentencing hearing is ordered, a preliminary order, or an order made by the presiding Judge, in relation to the proceedings from which the conviction or sentence arose, is binding on the presiding Judge who is presiding at the fresh hearing unless—(a) in the opinion of the presiding Judge who is presiding at the fresh hearing, it would not be in the interests of justice for that order to be binding, or(b) that order is inconsistent with an order made on appeal.(3) If proceedings before a presiding Judge are discontinued for any reason, a preliminary order, or an order made by the presiding Judge, in relation to those proceedings is binding on a presiding Judge presiding at any subsequent hearing relating to the same offence as the discontinued proceedings unless, in the opinion of the presiding Judge presiding at the subsequent hearing, it would not be in the interests of justice for the order to be binding.(4) In this section—preliminary order means any order made by a Judge, before the commencement of a trial or sentencing hearing, in proceedings to which this Division applies.ss 247R–247W: Ins 2012 No 10, Sch 1 [3].
247X Miscellaneous provisions
(1) A statement about any matter that is made by or on behalf of the defendant for the purposes of complying with requirements for preliminary disclosure imposed by or under this Division does not constitute an admission of that matter by the defendant.(2) The court may make orders to resolve any dispute between the parties to criminal proceedings about—(a) the requirements for preliminary disclosure imposed by or under this Division, or(b) the use of anything disclosed under this Division (including restrictions on publication or further disclosure).(3) Nothing in this Division prevents any voluntary preliminary disclosure by the defendant to the prosecutor of any information, document or other thing that the defendant proposes to adduce in evidence in the proceedings.(4) This Division does not limit any obligation (arising otherwise than under this Division) for preliminary or pre-trial disclosure that is capable of being complied with concurrently with requirements imposed by or under this Division, but this Division prevails to the extent of any inconsistency with any such obligation. Any such obligation extends to obligations imposed by the common law, the rules of court, the Uniform Rules made under Part 9.2 of the Legal Profession Uniform Law (NSW) and prosecution guidelines issued by the Director of Public Prosecutions or any other prosecuting authority.(5) However, this Division does not affect any immunity that applies by law to the disclosure of any information, document or other thing, including, for example, legal professional or client legal privilege, public interest immunity and sexual assault communications privilege under Division 2 of Part 5 of Chapter 6.(6) Nothing in this Division limits any powers that a court has apart from this Division in relation to proceedings.(7) The provisions of this Division prevail over the provisions of the Evidence Act 1995 to the extent of any inconsistency with those provisions.s 247X: Ins 2012 No 10, Sch 1 [3]. Am 2015 No 7, Sch 2.11 [1].
247Y Review of Division
(1) The Minister is to review this Division to determine whether the policy objectives of the Division remain valid and whether the terms of the Division remain appropriate for securing those objectives.(2) The review is to be undertaken as soon as possible after the period of 2 years from the commencement of section 247A.(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 2 years.s 247Y: Ins 2012 No 10, Sch 1 [3].
Division 3 Trial procedure
ch 4, pt 5, div 3: Ins 2001 No 119, Sch 1 [82].
248 Pre-trial procedure
A Judge is not required to proceed to hear and determine a case if any pre-trial procedures required by Division 2A or by the rules to be completed before the trial of the case commences have not been completed.s 248: Ins 2001 No 119, Sch 1 [82]. Am 2012 No 10, Sch 1 [4].
249 Procedure where prosecutor does not, but accused person does, appear
(1) If the prosecutor does not appear on the day and at the time and place set by an order under Division 2 (or on a day to which a hearing has been adjourned), but the accused person attends, the court, if satisfied that the prosecutor was notified of the day, time and place—(a) must discharge the accused person as to the offence the subject of the proceedings, with or without costs, or(b) if the court thinks it appropriate, adjourn the hearing to a specified time and place.(2) Subsection (1) does not empower the court to order costs to be paid in proceedings for an offence referred to in section 475A of the Crimes Act 1900.(3) Division 4 applies to any award of costs arising from proceedings being dealt with under subsection (1).s 249: Ins 2001 No 119, Sch 1 [82]. Am 2006 No 23, Sch 2 [6].
250 Procedure where accused person does not obey order to appear
If the accused person does not appear on the day and at the time and place set by an order under Division 2 (or on a day to which a hearing has been adjourned), the court may, if satisfied that the order was served on the accused person—(a) proceed to hear and determine the matter in the absence of the accused person, or(b) if the court thinks the matter should not proceed on that day or without the accused person, adjourn the hearing to a specified time and place and make an order for the apprehension of the accused person under Division 2.ss 250–252: Ins 2001 No 119, Sch 1 [82].
251 Procedure where both parties do not appear
If both the prosecutor and the accused person are not present, on a day and at the time and place to which a hearing has been adjourned, the court may proceed to hear and determine the matter in the absence of the parties.ss 250–252: Ins 2001 No 119, Sch 1 [82].
252 Procedure where both parties appear
If both the prosecutor and the accused person are present on a day and at the time and place set for the hearing and determination of proceedings for a summary offence (including a day, time and place to which a hearing has been adjourned) the court must proceed to hear and determine the matter.ss 250–252: Ins 2001 No 119, Sch 1 [82].
253 (Repealed)
s 253: Ins 2001 No 119, Sch 1 [82]. Am 2003 No 40, Sch 1.10 [7] [8]. Rep 2006 No 23, Sch 2 [7].
254 Enforcement of fines and orders
The payment of any money ordered by a court exercising summary jurisdiction under this Part to be paid as a penalty or for costs under Division 4 is taken to be a fine within the meaning of the Fines Act 1996.s 254: Ins 2001 No 119, Sch 1 [82]. Am 2006 No 23, Sch 2 [8].
255 Termination of lower court proceedings on commencement of proceedings under this Part
Any proceedings in a court to which Parts 2–4 apply for an offence for which proceedings may be taken under this Part or before that court are to be terminated on the court being notified, in accordance with the rules, of the commencement of proceedings under this Part for the offence.s 255: Ins 2001 No 119, Sch 1 [82].
256 Effect of conviction under this Part
A conviction under this Part for an offence that is of a kind that may be tried either on indictment or under this Part is taken for all purposes, except the Crimes (Appeal and Review) Act 2001, to be a conviction on indictment.s 256: Ins 2001 No 119, Sch 1 [82]. Am 2015 No 15, Sch 2.14 [2].
257 Rules for summary criminal procedure
(1) The Rule Committee may make rules for or with respect to the practice and procedure of a court in the exercise of summary jurisdiction under this Part.(2) Without limiting the generality of subsection (1), the rules may make provision for or with respect to—(a) the service of orders under Division 2,(b) pre-trial procedures and related practices,(c) the attendance or apprehension of witnesses,(d) the examination of witnesses on oath, affirmation or declaration,(e) the production by witnesses of books, documents and writings,(f) the execution of warrants for the apprehension of any person,(g) any matter that by this Part is required to be prescribed by rules or that is necessary or convenient for the carrying out of or giving effect to the provisions of this Act relating to the summary jurisdiction of a court.(3) Nothing in this section limits the rule-making powers conferred on the Supreme Court by the Supreme Court Act 1970.s 257: Ins 2001 No 119, Sch 1 [82].
Division 4 Costs
ch 4, pt 5, div 4: Ins 2006 No 23, Sch 2 [9].
257A Definition
In this Division—professional costs means costs (other than court costs) relating to professional expenses and disbursements (including witnesses’ expenses) in respect of proceedings before a court.ss 257A–257C: Ins 2006 No 23, Sch 2 [9].
257B When costs may be awarded to prosecutor
A court may, in and by a conviction or order, order an accused person to pay to the registrar of the court, for payment to the prosecutor, such costs as the court specifies or, if the conviction or order directs, as may be determined under section 257G, if—(a) the court convicts the accused person of an offence, or(b) the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of an offence.ss 257A–257C: Ins 2006 No 23, Sch 2 [9].
257C When professional costs may be awarded to accused person
(1) A court may at the end of proceedings under this Part order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.(2) The amount of professional costs is to be such professional costs as the court specifies or, if the order directs, as may be determined under section 257G.(3) Without limiting the operation of subsection (1), a court may order that the prosecutor in proceedings under this Part pay professional costs if—(a) the accused person is discharged as to the offence the subject of the proceedings, or(b) the matter is dismissed because the prosecutor fails to appear, or(c) the matter is withdrawn or the proceedings are for any reason invalid.ss 257A–257C: Ins 2006 No 23, Sch 2 [9].
257D Limit on award of professional costs against a prosecutor acting in a public capacity
(1) Professional costs are not to be awarded in favour of an accused person in proceedings under this Part unless the court is satisfied as to one or more 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 prosecutor in an improper manner,(c) that the prosecutor 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 accused person 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 prosecutor, it is just and reasonable to award professional costs.(2) This section—(a) does not apply to the awarding of costs against a prosecutor acting in a private capacity, and(b) does not apply in relation to proceedings for an offence against the Work Health and Safety Act 2011 or the regulations under that Act.(3) An officer of an approved 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 prosecutor in any proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003.s 257D: Ins 2006 No 23, Sch 2 [9]. Am 2011 No 67, Sch 4.6 [3].
257E Public officers and police officers not personally liable for costs
(1) A public officer or a police officer is entitled to be indemnified by the State for any costs awarded against the officer personally as the prosecutor in any criminal proceedings in a court in which the officer is acting in his or her capacity as a public officer or a police officer.(2) In this section—public officer does not include a councillor or an employee of a council or any other person prescribed by the regulations for the purposes of this section.s 257E: Ins 2006 No 23, Sch 2 [9].
257F Costs on adjournment
(1) A court may in any proceedings under this Part, at its discretion or on the application of a party, order that one party pay costs if the matter is adjourned.(2) An order may be made only if the court is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delays of the party against whom the order is made.(3) The order must specify the amount of costs payable or may provide for the determination of the amount at the end of the proceedings.(4) An order may be made whatever the result of the proceedings.s 257F: Ins 2006 No 23, Sch 2 [9].
257G Calculation of costs
The professional or other costs payable by a prosecutor or accused person in accordance with an order directing that the amount of costs is to be determined under this section are to be determined—(a) by agreement between the prosecutor and accused person, or(b) if no such agreement can be reached, in accordance with the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) (with or without modifications prescribed by the regulations).s 257G: Ins 2006 No 23, Sch 2 [9]. Am 2015 No 7, Sch 2.11 [2].
Chapter 5 Summary disposal of indictable offences by Local Court
ch 5, hdg: Ins 2001 No 119, Sch 1 [83]. Am 2007 No 94, Sch 1.28 [7].
258 Objects of this Chapter
The objects of this Chapter are—(a) to require the indictable offences listed in Table 1 to Schedule 1 to be dealt with summarily unless the prosecutor or the person charged with the offence concerned elects to have the offence dealt with on indictment, and(b) to require the indictable offences listed in Table 2 to Schedule 1 to be dealt with summarily unless the prosecutor elects to have the offence concerned dealt with on indictment.s 258 (previously s 18): Renumbered 2001 No 119, Sch 1 [84]. Am 2001 No 119, Sch 1 [85] [86].
259 Offences to which this Chapter applies
(1) This Chapter applies to the offences listed in Tables 1 and 2 to Schedule 1.(2) All the offences listed in Tables 1 and 2 to Schedule 1 are indictable offences, subject to the provisions of this Chapter.s 259 (previously s 19): Renumbered 2001 No 119, Sch 1 [84]. Am 2001 No 119, Sch 1 [85]. Subst 2007 No 57, Sch 1 [11].
260 Offences to be dealt with summarily unless election made to proceed on indictment
(1) An indictable offence listed in Table 1 to Schedule 1 is to be dealt with summarily by the Local Court unless the prosecutor or the person charged with the offence elects in accordance with this Chapter to have the offence dealt with on indictment.(2) An indictable offence listed in Table 2 to Schedule 1 is to be dealt with summarily by the Local Court unless the prosecutor elects in accordance with this Chapter to have the offence dealt with on indictment.s 260 (previously s 20): Renumbered 2001 No 119, Sch 1 [84]. Am 2001 No 119, Sch 1 [85]; 2003 No 40, Sch 1.10 [9]; 2007 No 94, Sch 2.
261 Procedure for dealing with offences summarily if no election made
An indictable offence listed in Table 1 or 2 to Schedule 1 is, if no election is made in accordance with this Chapter, to be dealt with summarily in accordance with the relevant provisions of this Act and any other relevant law as if it were a summary offence.s 261 (previously s 21): Renumbered 2001 No 119, Sch 1 [84]. Am 2001 No 119, Sch 1 [85] [87]; 2003 No 40, Sch 1.10 [10].
262 Procedure for dealing with offences if election made
(1) An indictable offence listed in Table 1 or 2 to Schedule 1 is, if an election is made in accordance with this Chapter, to be dealt with on indictment in accordance with the relevant provisions of this Act and any other relevant law.(2) If an election is made in accordance with this Chapter and the person charged with the offence pleads guilty to the offence before the Local Court and the Court accepts the plea, the offence is to be dealt with in accordance with Part 2 of Chapter 3 as if the person charged had pleaded guilty under that Part to the offence.s 262 (previously s 22): Renumbered 2001 No 119, Sch 1 [84]. Am 2001 No 119, Sch 1 [85] [87] [88]; 2003 No 40, Sch 1.10 [11]; 2003 No 82, Sch 2.9 [6]; 2007 No 94, Sch 2; 2017 No 55, Sch 1 [7].
263 Time for making election
(1) An election to have an offence dealt with on indictment must be made within the time fixed by the Local Court.(2) An election may, with the leave of the Local Court, be made after the time so fixed if the Court is satisfied that special circumstances exist.(3) However, an election may not be made after the following events—(a) in the case of a plea of not guilty—the commencement of the taking of evidence for the prosecution in the summary trial,(b) in the case of a plea of guilty—the presentation of the facts relied on by the prosecution to prove the offence.(4) An election may be made on behalf of a corporation by a person appearing as a representative of the corporation.(5) The jurisdiction of the Local Court under this section may be exercised by a registrar.s 263 (previously s 23): Renumbered 2001 No 119, Sch 1 [84]. Am 2001 No 119, Sch 1 [89]; 2007 No 94, Sch 2.
264 Election may be withdrawn
(1) An election for an offence to be dealt with on indictment may be withdrawn by the party who made the election.(2) However, an election may not be withdrawn after the following events—(a) in the case of a plea of not guilty—the committal of the person charged for trial,(b) in the case of a plea of guilty—the committal of the person charged for sentence.(3) An offence is to be dealt with summarily in accordance with this Chapter if an election is withdrawn in accordance with this section.s 264 (previously s 24): Renumbered 2001 No 119, Sch 1 [84]. Am 2001 No 119, Sch 1 [85]; 2017 No 55, Sch 1 [8].
265 Criminal record to be given to person charged (Table 1 offences)
(1) When a person charged with an indictable offence listed in Table 1 to Schedule 1 first appears before the Local Court in respect of the offence, the Court—(a) is to address the person about the person’s right to make an election and the consequences of not making an election, and(b) is to give to the person a statement about the person’s right to make an election and the consequences of not making an election that is in the form of words prescribed by the regulations.(1A) Subsection (1) does not apply if the person charged with an indictable offence is represented by an Australian legal practitioner.(2) The prosecutor is to serve, or cause to be served, on a person charged with an indictable offence listed in Table 1 to Schedule 1 a copy of the person’s criminal record (if any) known to the prosecutor, within the time fixed by the Local Court. The time so fixed must be before the time fixed by the Court for the making of an election in respect of the offence.(3) Without limiting the powers of the Local Court to adjourn proceedings, the Local Court is to grant such adjournments as appear to be just and reasonable if a criminal record is not served in accordance with this section, and the Court is to extend accordingly the time fixed for the making of an election in respect of the offence.(4) (Repealed)(5) The jurisdiction of the Local Court under this section may also be exercised by a registrar.s 265 (previously s 25): Renumbered 2001 No 119, Sch 1 [84]. Am 2001 No 119, Sch 1 [86] [90]–[93]; 2003 No 27, Sch 8 [6] [7]; 2006 No 120, Sch 3.7 [2]; 2007 No 34, Sch 1 [2]; 2007 No 94, Schs 1.28 [8], 2.
266 Regulations
(1) Regulations may be made for or with respect to elections under this Chapter.(2) In particular, regulations may be made for or with respect to the following—(a) the form and manner in which an election is to be made,(b) the form and manner in which the withdrawal of an election is to be made,(c) the notification of the making or withdrawal of an election,(d) the form and contents, and the service, of briefs of evidence and criminal records.s 266 (previously s 26): Renumbered 2001 No 119, Sch 1 [84]. Am 2001 No 119, Sch 1 [85].
267 Maximum penalties for Table 1 offences
(1) This section prescribes the maximum penalty that may be imposed for an indictable offence listed in Table 1 to Schedule 1 dealt with summarily under this Chapter in any case where the maximum penalty (when the offence is dealt with summarily) is not provided by law.(2) The maximum term of imprisonment that the Local Court may impose for an offence is, subject to this section, 2 years or the maximum term of imprisonment provided by law for the offence, whichever is the shorter term.(3) The maximum fine that the Local Court may impose for an offence is, subject to this section, 100 penalty units or the maximum fine provided by law for the offence, whichever is the smaller fine.(4) (Repealed)(4A) The maximum penalty that the Local Court may impose for an offence under section 25 of the Oaths Act 1900 is imprisonment for 2 years, or a fine of 50 penalty units, or both.(4AA) (Repealed)(4B) The maximum penalty that the Local Court may impose for the offence of—(a) attempting to commit an offence, or(b) being an accessory before or after the fact in relation to an offence that is a felony, or(c) aiding, abetting, counselling or procuring the commission of an offence that is a misdemeanour, or(d) conspiring to commit an offence, oris the same as the maximum penalty that the Local Court may impose for the offence concerned.(e) inciting the commission of an offence,(5) The Local Court may, instead of imposing a term of imprisonment, impose a fine not exceeding 100 penalty units for an offence listed in Table 1 to Schedule 1 in any case where a fine is not otherwise provided by law for the offence.(6) Nothing in this section affects an option provided by law to impose either a term of imprisonment, or a fine, or both.(7) Nothing in this section affects Division 2 of Part 4 of the Crimes (Sentencing Procedure) Act 1999.(7A) Nothing in this section prevents the Local Court from imposing the maximum term of imprisonment that may be imposed under section 33AA (2) (a) of the Drug Misuse and Trafficking Act 1985.(8) (Repealed)s 267 (previously s 27): Renumbered 2001 No 119, Sch 1 [84]. Am 2001 No 119, Sch 1 [85]; 2005 No 74, Sch 2.1 [1]; 2007 No 94, Schs 2, 3; 2012 No 11, Sch 1.1 [1]–[3].
268 Maximum penalties for Table 2 offences
(1) This section prescribes the maximum penalty that may be imposed for an indictable offence listed in Table 2 to Schedule 1 dealt with summarily under this Chapter in any case where the maximum penalty (when the offence is dealt with summarily) is not provided by law.(1A) The maximum term of imprisonment that the Local Court may impose for an offence is, subject to this section, 2 years or the maximum term of imprisonment provided by law for the offence, whichever is the shorter term.(2) The maximum fine that the Local Court may impose for the following offences is—(a) for an offence under section 35A (2), 49A, 56, 58, 59, 59A, 60 (1), 60A (1), 60B, 60C, 60E (1) and (4), 61, 61KC, 61KE, 61KF, 61L, 61N, 61O (1) or (1A), 66DD, 66DE, 66EC, 73A, 91P, 91Q or 91R (1) or (2) of the Crimes Act 1900—50 penalty units,(b) for an offence listed in Part 2 or 3 of Table 2 to Schedule 1 (other than an offence under section 154A of the Crimes Act 1900)—(i) 50 penalty units, or(ii) if the value of any property, amount of money or reward concerned does not exceed $2,000—20 penalty units,(c) for an offence under section 154A of the Crimes Act 1900—50 penalty units,(d) for an offence under section 93G, 93H or 93I of the Crimes Act 1900—50 penalty units,(e) for an offence under section 7, 7A, 36, 43, 44A, 50, 50AA, 50A (1), 50B, 51 (1) or (2), 51A, 51BA, 51D (1), 51E, 51F, 51H, 51I, 58 (2), 62, 63, 64, 66, 70, 71A, 72 (1) or 74 (1)–(5) of the Firearms Act 1996—50 penalty units,(f) for an offence under section 7, 20, 23 (1), 23A (1), 25A (1), 25B (1), 25D, 31 or 34 of the Weapons Prohibition Act 1998—100 penalty units,(g) for an offence under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 or section 545AB or 562AB of the Crimes Act 1900—50 penalty units,(h) for an offence under section 100 (1) or (1B) of the Rural Fires Act 1997—100 penalty units,(i) for an offence under section 578C (2A) of the Crimes Act 1900—in the case of an individual, 100 penalty units or, in the case of a corporation, 200 penalty units,(j) for an offence under section 10 or 20 of the Liens on Crops and Wool and Stock Mortgages Act 1898—50 penalty units,(k) for an offence under Part 2 or 5 (other than section 40 (2)) of the Surveillance Devices Act 2007—in the case of an individual, 100 penalty units or, in the case of a corporation, 200 penalty units,(k1) for an offence under section 8 (2A) or 9 (3) of the Restricted Premises Act 1943—50 penalty units,(l) for an offence under section 17 or 18 of the Child Protection (Offenders Registration) Act 2000—100 penalty units,(m) for an offence under section 65 of the Electricity Supply Act 1995—100 penalty units,(n) for an offence under section 66 of the Gas Supply Act 1996—100 penalty units.(2AA) A fine may be imposed as referred to in subsection (2) for an offence in addition to or instead of any term of imprisonment that may be imposed by law for the offence.(2A) The maximum penalty that the Local Court may impose for the offence of—(a) attempting to commit an offence, or(b) being an accessory before or after the fact in relation to an offence that is a felony, or(c) aiding, abetting, counselling or procuring the commission of an offence that is a misdemeanour, or(d) conspiring to commit an offence, oris the same as the maximum penalty that the Local Court may impose for the offence concerned.(e) inciting the commission of an offence,(3) Nothing in this section affects Division 2 of Part 4 of the Crimes (Sentencing Procedure) Act 1999.s 268 (previously s 28): Renumbered 2001 No 119, Sch 1 [84]. Am 2001 No 119, Sch 1 [85]; 2003 No 36, Sch 3.1 [1]; 2003 No 85, Sch 4 [1]; 2003 No 92, Sch 3.1 [1] [2]; 2004 No 49, Sch 3 [1]; 2005 No 94, Sch 2.1 [1]; 2005 No 119, Sch 4 [1]; 2006 No 73, Sch 3.8 [1]; 2007 No 64, Sch 2.2 [1]; 2007 No 80, Sch 2.9 [2]; 2007 No 87, Sch 4.2 [1]; 2007 No 94, Sch 2; 2008 No 18, Sch 2 [1]; 2009 No 31, Sch 3 [1]; 2010 No 40, Sch 3.11 [1]; 2012 No 11, Sch 1.1 [4]; 2013 No 74, Sch 4 [1]–[3]; 2014 No 66, Sch 2.2 [1]; 2015 No 63, Sch 3 [1] [2]; 2017 No 26, Sch 5 [1] [2]; 2017 No 29, Sch 2.3 [1]; 2018 No 33, Sch 4 [7] [8].
269 Offences by children
Nothing in this Chapter confers jurisdiction on the Local Court to deal with an offence if the Children’s Court has exclusive jurisdiction to hear and determine the matter.s 269 (previously s 30): Renumbered 2001 No 119, Sch 1 [95]. Am 2001 No 119, Sch 1 [96]; 2007 No 94, Sch 2.
270 No time limit for offences dealt with summarily under this Chapter
Section 179, and the provisions of any other Act limiting the time within which proceedings for summary offences may be instituted, do not apply to offences dealt with summarily under this Chapter.s 270 (previously s 31): Renumbered 2001 No 119, Sch 1 [95]. Am 2001 No 119, Sch 1 [96] [97]; 2003 No 40, Sch 1.10 [12].
271 Effect of conviction
The conviction of a person of an offence dealt with summarily under this Chapter has the same effect as a conviction on indictment for the offence.s 271 (previously s 32): Renumbered 2001 No 119, Sch 1 [95]. Am 2001 No 119, Sch 1 [96].
272 Application of Chapter
(1) This Chapter applies to proceedings for an offence with which a person is charged after (but not before) the commencement of this section irrespective of when the offence was committed.(2), (3) (Repealed)s 272 (previously s 33): Renumbered 2001 No 119, Sch 1 [95]. Am 2001 No 119, Sch 1 [96]; 2007 No 38, Sch 3.1 [1].
273 Jurisdiction of Magistrates in respect of offences arising under Part 4AD of Crimes Act 1900
If, by virtue of this Chapter, the Local Court has jurisdiction to deal with a charge arising under Part 4AD of the Crimes Act 1900, the Local Court may hear the charge irrespective of whether, in order to determine the charge, it is necessary to determine title to any property.s 273 (previously s 34): Renumbered 2001 No 119, Sch 1 [95]. Am 2001 No 119, Sch 1 [96]; 2003 No 40, Sch 1.10 [13]; 2007 No 94, Sch 2; 2009 No 99, Sch 3 [1].
Chapter 6 Evidentiary matters
ch 6, hdg: Ins 2001 No 119, Sch 1 [98].
Part 1 Preliminary
ch 6, pt 1: Ins 2001 No 119, Sch 1 [98].
274 Application
Except as provided by this Chapter, this Chapter applies, to the extent that it is capable of being applied, to all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with.Note—Certain provisions of Part 6 (Giving of evidence by vulnerable persons) of this Chapter extend to evidence given in proceedings of a civil nature arising from certain offences (for example, see section 306ZA (c)).s 274: Ins 2001 No 119, Sch 1 [98]. Am 2005 No 25, Sch 1 [3]; 2007 No 6, Sch 1 [4]; 2017 No 55, Sch 1 [9].
275 Definition
In this Chapter—Judge includes a Magistrate, a Children’s Court Magistrate and an Industrial Magistrate and any other person of a class prescribed for the purposes of this definition.s 275: Ins 2001 No 119, Sch 1 [98]. Am 2003 No 82, Sch 2.9 [7]; 2007 No 92, Sch 4.5 [2]; 2008 No 107, Sch 29.4 [8]; 2016 No 48, Sch 2.13 [6].
Part 2 General
ch 6, pt 2, hdg: Ins 2001 No 119, Sch 1 [98].
275A NSW Police Force exhibits management system
In any criminal proceedings, the production of one or more exhibit detail sheets certified by a member of the NSW Police Force to have been issued under the authority of the NSW Police Force exhibits management system, and relating to the whole or part of an exhibit identified in the sheets, is prima facie evidence of the dealings with that exhibit that are listed in the sheets, without proof of the signature or appointment of the person purporting to sign the sheets.s 275A: Ins 2005 No 25, Sch 1 [4]. Rep 2007 No 46, Sch 2.3 [1]. Ins 2018 No 29, Sch 1.10 [1].
275B Witness with communication difficulty entitled to assistance from person or communication aid
(1) In any criminal proceedings, a witness who has difficulty communicating is entitled to use a person or persons who may assist the witness with giving evidence, but only if the witness ordinarily receives assistance to communicate from such a person or persons on a daily basis.(2) In any criminal proceedings, a witness who has difficulty communicating is entitled to use a communication aid to assist the witness with giving evidence, but only if the witness ordinarily uses such an aid to assist him or her to communicate on a daily basis.(3) To the extent that the court considers it reasonable to do so, the court must make whatever direction is appropriate to give effect to a witness’ right to use a person or persons, or to use a communication aid, under this section when the witness is giving evidence.(4) The provisions of the Evidence Act 1995 apply to and in respect of a person who gives a witness assistance under this section in the same way as they apply to and in respect of an interpreter under that Act.(5) In this section—communication aid includes any thing, whether electronic or otherwise, that can be used to assist in communication.s 275B: Ins 2006 No 88, Sch 1 [4].
275C Court may direct expert evidence be given concurrently or consecutively
(1) The court may, at any time, give directions as it considers appropriate to enable the giving of expert evidence concurrently or consecutively in criminal proceedings.(2) Directions under this section may include the following—(a) a direction that an expert witness give evidence at any stage of the proceedings,(b) a direction that more than one expert witness give evidence at the same time in the proceedings,(c) a direction that an expert witness give an oral exposition of the witness’s opinion on a particular matter,(d) a direction that an expert witness be examined, cross-examined or re-examined in a particular manner or sequence, including by putting to each expert witness, in turn, each question relevant to one matter or issue at a time,(e) a direction that an expert witness be permitted to ask questions of another expert witness who is giving evidence at the same time during the proceedings.(3) A direction may be given under this section only with the consent of the prosecutor and the accused person.(4) This section does not limit any other powers of a court to give directions in relation to evidence, witnesses or the management and conduct of proceedings.s 275C: Ins 2018 No 87, Sch 1.15 [4].
276 Proof of service of notice to produce
An affidavit by—(a) the Director of Public Prosecutions or the Solicitor for Public Prosecutions, or(b) a member of the staff of the Director of Public Prosecutions, or(c) an Australian legal practitioner or Australian legal practitioner’s clerk, or(d) the accused person, oras to the service of any notice to produce and of the time when it was served, with a copy of the notice annexed to the affidavit, is sufficient evidence of the service of the original of the notice and of the time when it was served.(e) a police officer,s 276 (previously s 101): Renumbered 2001 No 119, Sch 1 [99]. Am 2006 No 120, Sch 3.7 [2] [10].
277 Stealing goods from vessel or wharf
(1) This section applies to the following offences—(a) any offence involving the stealing of property—(i) from any vessel, barge, boat or train, or(ii) from any dock, wharf, quay, railway yard or other railway premises, or(iii) from any store or shed used in connection with and adjoining any such dock, wharf, quay, railway yard or other railway premises, or(iv) in the course of transit from any vessel, barge, boat or train, or from any store or shed used in connection with and adjoining such wharf, dock, quay, railway yard or other railway premises, or(b) any offence involving the receiving of property so stolen knowing it to have been stolen.(2) On the prosecution of any person for an offence to which this section applies—(a) evidence may be given of any writing, printing, or marks on any property alleged to have been stolen or received, or on any package containing such property, without producing or giving notice to produce the original writing, printing or marks, and(b) any document purporting to be a document of title to any property alleged to have been stolen or received—(i) is admissible in evidence on production and without further proof, and(ii) is evidence of the particulars contained in the document, and that the ownership of the property is in the consignee referred to in the document or his or her assignee.(3) In this section—document of title to property includes—(a) any bill of lading, India warrant, dock warrant, warehouse keeper’s certificate, warrant, or order for the delivery or transfer of any goods or valuable thing, and(b) any bought and sold note or other document—(i) used in the ordinary course of business as proof of the possession or control of goods, or(ii) purporting to authorise, by endorsement or delivery, the possessor of such document to transfer or receive any goods thereby represented or therein mentioned or referred to.train includes any railway carriage, railway truck or other railway vehicle that is on any railway.s 277: Renumbered 2001 No 119, Sch 1 [99].
278 Incriminating statements admissible though on oath
An incriminating statement made voluntarily by an accused person before any charge has been preferred against the accused person in respect of an indictable offence is not to be rejected merely because the statement was made on oath.ss 278 (previously ss 102, 103): Renumbered 2001 No 119, Sch 1 [99].
279 Compellability of family members to give evidence in certain proceedings
(1) In this section—(a) a reference to a member of the accused person’s family means the spouse or de facto partner of the accused person or a parent (within the meaning of the Evidence Act 1995) or child (within the meaning of that Act) of the accused person, andNote—“De facto partner” is defined in section 21C of the Interpretation Act 1987.(b) a reference to a domestic violence offence is a reference to a domestic violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007, and(c) a reference to a domestic violence offence committed on a member of an accused person’s family includes a reference to an offence of contravening a prohibition or restriction specified in an apprehended violence order that was made against the accused person and in respect of which a member of the accused person’s family was the protected person, and(d) a reference to a child assault offence is a reference to—(i) a prescribed sexual offence committed on a child under the age of 18 years, or(ii) an offence under, or mentioned in, section 24, 27, 28, 29, 30, 33, 33A, 35, 39, 41, 42, 43, 44, 46, 47, 48, 49, 58, 59 or 61 of the Crimes Act 1900 committed on a child under the age of 18 years, or(iii) an offence that, at the time it was committed, was a child assault offence for the purposes of this section or section 407AA of the Crimes Act 1900, or(iv) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in subparagraph (i), (ii) or (iii), and(e) a reference to a child assault offence committed on a child includes a reference to an offence of contravening a prohibition or restriction specified in an apprehended violence order that was made against the accused person and in respect of which that child was the protected person.(2) A member of an accused person’s family in proceedings in any court—(a) for a domestic violence offence (other than an offence arising from a negligent act or omission) committed on a member of the accused person’s family, oris compellable to give evidence in the proceedings, either for the prosecution or for the defence, without the consent of the accused person.(b) for a child assault offence (other than an offence arising from a negligent act or omission) committed on—(i) a child living in the household of the accused person, or(ii) a child who, although not living in the household of the accused person, is a child (within the meaning of the Evidence Act 1995) of the accused person,(2A) This section does not make a member of an accused person’s family (other than the accused person’s spouse) compellable to give evidence in proceedings for a domestic violence offence committed on a member of the accused person’s family if the accused person is under the age of 18 years.(3) A member of an accused person’s family is not compellable to give evidence for the prosecution as referred to in subsection (2) if the family member has applied to, and been excused by, the court.(4) A court may excuse a member of an accused person’s family from giving evidence for the prosecution as referred to in subsection (2) if satisfied—(a) that the application to be excused is made by that family member freely and independently of threat or any other improper influence by any person, and(b) that it is relatively unimportant to the case to establish the facts in relation to which it appears that the family member is to be asked to give evidence, or there is other evidence available to establish those facts, and(c) that the offence with which the accused person is charged is of a minor nature.(5) When excusing a member of an accused person’s family from giving evidence under subsection (4), the court—(a) must state the reasons for doing so, and(b) must cause those reasons to be recorded in writing in a form prescribed by the regulations.(6) An application under this section by a member of an accused person’s family to be excused from giving evidence is to be made and determined in the absence of the jury (if any) and the accused person, but in the presence of the accused person’s Australian legal practitioner.(7) A court may conduct the hearing of an application under this section in any manner it thinks fit, and is not bound to observe rules of law governing the admission of evidence but may obtain information on any matter in any manner it thinks fit.(8) The fact that a member of an accused person’s family in proceedings for an offence has applied to be excused, or has been excused, from giving evidence in the proceedings is not to be made the subject of any comment by the court or by any party in the proceedings.s 279 (previously s 104): Renumbered 2001 No 119, Sch 1 [99]. Am 2006 No 73, Sch 3.8 [2]; 2006 No 120, Sch 3.7 [11]; 2007 No 80, Sch 2.9 [3]; 2010 No 19, Sch 3.33; 2018 No 29, Sch 1.10 [2]–[13].
279A Admission of evidence of complainant from related proceedings
(1) This section applies if a complainant in proceedings for a prescribed sexual offence (the earlier proceedings) is the complainant in later criminal proceedings (the current proceedings) and the offence in both proceedings is alleged to have been committed by the same accused person against the complainant in related circumstances.(2) A prosecutor may tender as evidence in current proceedings a record of the evidence of a complainant given in the earlier proceedings (the original evidence).(3) The original evidence of the complainant means all evidence given by the complainant in the earlier proceedings, including the evidence given by the complainant on examination in chief in the earlier proceedings and any further evidence given on cross-examination or re-examination in those proceedings.(4) Despite anything to the contrary in the Evidence Act 1995, or any other Act or law, a record of the original evidence of the complainant is admissible in the current proceedings if—(a) the prosecutor gives written notice to the accused person, in accordance with the regulations, of the prosecutor’s intention to tender the record under this section, and(b) the prosecutor gives written notice to the court of the prosecutor’s intention to tender the record under this section, and(c) the notices referred to in paragraphs (a) and (b) are given no less than 21 days before the court commences hearing the current proceedings or within such other period as the court may allow.(5) If a record of original evidence is admitted in current proceedings under this section, the complainant is not compellable to give further evidence about the same matters in the current proceedings unless the court is satisfied that it is necessary for the complainant to give further evidence—(a) to clarify any matters relating to the original evidence of the complainant, or(b) to canvass information or material that has become available since the original evidence was given, or(c) in the interests of justice.(6) The court is to ensure that the complainant is questioned by any party to the current proceedings only in relation to matters that are relevant to the matters mentioned in subsection (5).(7) Subject to subsection (6), if a complainant gives any further evidence under this section, the complainant is compellable (for the prosecution or the accused person) to give evidence.(8) The court hearing the current proceedings may decline to admit a record of original evidence of the complainant if, in the court’s opinion, the accused person would be unfairly disadvantaged by the admission of the evidence, having regard to the following—(a) the completeness of the original evidence, including whether the complainant has been cross-examined on the evidence,(b) the effect of editing any inadmissible evidence from the original evidence,(c) the availability or willingness of the complainant to attend to give further evidence and to clarify any matters relating to the original evidence,(d) the interests of justice,(e) any other matter the court thinks relevant.(9) If the court allows a record of the original evidence of the complainant to be admitted, the court may give directions requiring the record to be altered or edited for the purpose of removing any statements that would not be admissible if the original evidence of the complainant had been given orally before the court hearing the current proceedings in accordance with the usual rules and practice of the court.(10) The hearsay rule (within the meaning of the Evidence Act 1995) does not prevent the admission of a record of the original evidence of the complainant under this section or the use of that record to prove the existence of a fact that the complainant intended to assert by a representation made in the original evidence.(11) Sections 306E–306G (including any regulations made for the purposes of those sections) apply for the purposes of this section with such modifications as are necessary.(12) (Repealed)s 279A: Ins 2018 No 88, Sch 5 [7]. Am 2019 No 20, Sch 1.10[8].
280 Disclosure of address or telephone number of witness
(1) A witness in proceedings for an offence, or a person who makes a written statement that is likely to be produced in proceedings for an offence, is not required to disclose his or her address or telephone number, unless—(a) the address or telephone number is a materially relevant part of the evidence, or(b) the court makes an order requiring the disclosure.(2) An application for such an order may be made by the prosecution or the defence.(3) The court may make such an order only if it is 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 outweigh any such risk.(4) An address or telephone number that is not required to be disclosed and that is contained in a written statement may, without reference to the person who made the written statement, be deleted from the statement, or rendered illegible, before the statement is produced in court or given to the accused person.(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 referred to 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) (Repealed)(8) In this section—address includes a private, business or official address.telephone number includes a private, business or official telephone number.s 280 (previously s 106): Renumbered 2001 No 119, Sch 1 [100]. Am 2001 No 119, Sch 1 [101].
280A Disclosure of personal information in subpoenaed documents and things
(1) A person to whom a subpoena is addressed is not required to disclose in any document or thing produced in compliance with the subpoena any personal information, unless—(a) the personal information is a materially relevant part of the evidence, or(b) the court makes an order requiring the disclosure.(2) An application for such an order may be made by the prosecution or the defence.(3) The court may make such an order only if it is 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 outweigh any such risk.(4) Personal information that is not required to be disclosed may, without reference to the person to whom the personal information relates, be deleted from the document or thing, or rendered illegible, before the document or thing is produced to the court or given to the accused person in compliance with the subpoena.(5) This section does not prevent the disclosure of an address if the disclosure does not identify it as a particular person’s address, or it could not reasonably be inferred from the matters disclosed that it is a particular person’s address.(6) In this section—address includes a private, business or official address.personal information means the address or telephone number of the person to whom the subpoena is addressed or of any other living person.telephone number includes a private, business or official telephone number.s 280A: Ins 2018 No 87, Sch 1.15 [5].
281 Admissions by suspects
(1) This section applies to an admission—(a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and(b) that was made in the course of official questioning, and(c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person.(2) Evidence of an admission to which this section applies is not admissible unless—(a) there is available to the court—(i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or(ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or(b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made.(3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2).(4) In this section—investigating official means—(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or(b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations.official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.reasonable excuse includes—(a) a mechanical failure, or(b) the refusal of a person being questioned to have the questioning electronically recorded, or(c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned.tape recording includes—(a) audio recording, or(b) video recording, or(c) a video recording accompanied by a separately but contemporaneously recorded audio recording.s 281 (previously s 108): Renumbered 2001 No 119, Sch 1 [102].
Part 2A Sensitive evidence
ch 6, pt 2A: Ins 2005 No 25, Sch 1 [5].
Division 1 Preliminary
ch 6, pt 2A, div 1, hdg: Ins 2018 No 87, Sch 1.15 [6].
281A Definitions
(1) In this Part—access supervisor—see section 281FB.accused person means a person who stands, or any of the persons who stand, charged with an offence (whether summary or indictable), and includes the following—(a) in relation to proceedings for a summary offence, a defendant,(b) in relation to sentencing proceedings, a person who has been committed for sentence to the District Court or Supreme Court,(c) in relation to proceedings on an appeal against a conviction or sentence, the person convicted or sentenced.criminal investigation means the investigation of an offence or alleged offence.criminal proceedings means proceedings against a person for an offence (whether summary or indictable), and includes the following—(a) committal proceedings,(b) proceedings relating to bail,(c) proceedings relating to sentencing,(d) proceedings on an appeal against conviction or sentence.means any of the following—(a) a public health organisation (within the meaning of the Health Services Act 1997),(b) a public hospital (within the meaning of the Health Services Act 1997),(c) a private health facility (within the meaning of the Private Health Facilities Act 2007) that is licensed under that Act and that provides health services to the public on behalf of the Ministry of Health, the Health Administration Corporation constituted by the Health Administration Act 1982 or a local health district (within the meaning of the Health Services Act 1997),(d) a person or body that provides health services and is prescribed by the regulations.means—(a) in relation to criminal proceedings, the Director of Public Prosecutions, a delegate of the Director of Public Prosecutions, a police officer, or any other person acting in a public official capacity, who is responsible for the institution or conduct of a prosecution, and(b) in relation to a criminal investigation, a police officer or any other person acting in a public official capacity who is responsible for the conduct of a criminal investigation.sensitive evidence has the meaning given by section 281B.supervised access arrangements—see section 281FD.(2) In this Part, a reference to an accused person or a includes a reference to an Australian legal practitioner representing the accused person or the prosecuting authority.s 281A: Ins 2005 No 25, Sch 1 [5]. Am 2006 No 120, Sch 3.7 [2]; 2018 No 87, Sch 1.15 [7].
281B Sensitive evidence—meaning
(1) For the purposes of this Part, anything that contains or displays an image of a person (the protected person) is sensitive evidence if—(a) the image is obscene or indecent, or(b) providing a copy of the image to another person without the protected person’s consent would interfere with the protected person’s privacy, or(c) the image was taken after the death of the protected person.(1A) For the purposes of this Part, an audio recording of a person committing an offence against another person (the protected person) is sensitive evidence if—(a) the contents of the audio recording are obscene or indecent, or(b) providing a copy of the audio recording to another person without the protected person’s consent would interfere with the protected person’s privacy.(1B) The contents of an audio recording are not obscene or indecent merely because they include obscene or indecent language.(2) Without limiting subsection (1) or (1A), the following are examples of sensitive evidence—(a) a photograph of an alleged sexual assault victim, taken in connection with a criminal investigation or criminal proceedings, that shows the person’s genitalia or otherwise shows the person in a state of undress,(b) a video or audio recording, held or seized by a prosecuting authority, of a person committing a sexual offence,(c) a computer hard drive, held or seized by a prosecuting authority, containing images of child pornography or child abuse material (within the meaning of Division 15A of Part 3 of the Crimes Act 1900),(d) a photograph of a deceased person taken in connection with a post mortem examination,(e) a photograph of a deceased person taken at a crime scene.(3) In determining whether a thing is obscene or indecent, the fact that the thing was brought into existence, or is in the possession of a prosecuting authority, for the purpose of providing evidence of an offence is to be disregarded.s 281B: Ins 2005 No 25, Sch 1 [5]. Am 2010 No 9 Sch 2 [2]; 2012 No 67, Sch 2 [1]–[3].
Division 2 Evidence held by prosecuting authority
ch 6, pt 2A, div 2, hdg: Ins 2018 No 87, Sch 1.15 [8].
281C Accused person not entitled to copy of sensitive evidence
(1) A prosecuting authority is not required and cannot be required (whether by subpoena or any other procedure), in or in connection with any criminal investigation or criminal proceedings, to give an accused person a copy of anything the prosecuting authority reasonably considers to be sensitive evidence.(2) This section applies despite anything to the contrary in this or any other Act, or any other law.s 281C: Ins 2005 No 25, Sch 1 [5].
281D Procedures for giving access to sensitive evidence to accused person
(1) If, but for this Part, a prosecuting authority would be required, in or in connection with any criminal investigation or criminal proceedings, to provide a copy of a thing to an accused person, and the prosecuting authority does not give a copy of the thing to the accused person as a result of this Part, the prosecuting authority must give the accused person a written notice (a sensitive evidence notice) that complies with this section.(2) The sensitive evidence notice must—(a) describe the thing that the prosecuting authority considers to be sensitive evidence, and(b) indicate that, as the prosecuting authority considers the thing to be sensitive evidence, the prosecuting authority is not required to give the accused person a copy of the thing, and(c) indicate that the accused person will not be given a copy of the thing, and(d) contain information to the effect that the accused person is entitled to view or listen to the thing at a place nominated by the prosecuting authority and under the supervision of the prosecuting authority, and(e) set out the name and contact details of the person who is responsible for arranging the viewing of, or listening to, the thing on behalf of the prosecuting authority.(3) After receiving a sensitive evidence notice, the accused person may give the prosecuting authority a written notice (an access request notice) that indicates that the accused person requires access to the thing.(4) The prosecuting authority must, as soon as practicable after receiving an access request notice, give the accused person, and any other person who has been engaged to assist with the accused person’s case, reasonable access to the thing so as to enable them to view or listen to (but not copy) the thing. This may require access to be given on more than one occasion.(5) The prosecuting authority may require any such access to take place subject to such conditions as the prosecuting authority considers appropriate to ensure that there is no unauthorised reproduction or circulation of the thing and that the integrity of the thing is protected.(6) Without limiting subsection (5), the prosecuting authority may require any such access to take place under the supervision of the prosecuting authority or a person assisting the prosecuting authority.(7) A person who is given access to a thing by a prosecuting authority under this section must not, without the authority of the prosecuting authority—(a) copy, or permit a person to copy, the thing, or(b) give the thing to another person, or(c) remove the thing from the custody of the prosecuting authority.Maximum penalty—100 penalty units, or 2 years imprisonment, or both.(8) The Attorney General may approve the form of any notice to be used for the purposes of this section.s 281D: Ins 2005 No 25, Sch 1 [5]. Am 2012 No 67, Sch 2 [4]–[6].
281E Prosecuting authority entitled to retain possession of sensitive evidence
(1) If during any criminal proceedings an accused person is given sensitive evidence, or a copy of sensitive evidence, by the prosecuting authority in the proceedings, the court must, on application by the prosecuting authority, direct the accused person to return the sensitive evidence or copy to the custody of the prosecuting authority at or before the end of each day during which the proceedings are heard.(2) At the completion of any criminal proceedings in which sensitive evidence is tendered by the prosecuting authority, or sensitive evidence given to the accused person by the prosecuting authority is tendered by the accused person, the court must, on application by the prosecuting authority, direct that the sensitive evidence, and any copies of the sensitive evidence made for the purposes of the proceedings, be returned to the custody of the prosecuting authority.s 281E: Ins 2005 No 25, Sch 1 [5].
281F Improper copying or circulation of sensitive evidence
(1) A person who has possession of sensitive evidence that is prosecution evidence must not copy, or permit a person to copy, the sensitive evidence, or give possession of the sensitive evidence to another person, except—(a) for the legitimate purposes of a criminal investigation or criminal proceedings, or(b) if the person is a public official, in the proper exercise of the person’s public official functions (including any functions relating to education or training).Maximum penalty—100 penalty units, or 2 years imprisonment, or both.(2) For the purposes of this section, any sensitive evidence in the possession of a person is prosecution evidence if—(a) the person was given possession of the sensitive evidence by a prosecuting authority in or in connection with a criminal investigation or criminal proceedings, or(b) the person is a public official who created, or obtained possession of, the sensitive evidence in the exercise of, or as a result of an opportunity that arose in the exercise of, public official functions in or in connection with a criminal investigation or criminal proceedings.(3) In this section—public official has the same meaning as in the Independent Commission Against Corruption Act 1988.s 281F: Ins 2005 No 25, Sch 1 [5].
Division 3 Evidence held by health authority
ch 6, pt 2A, div 3 (ss 281FA–281FG): Ins 2018 No 87, Sch 1.15 [9].
281FA Accused person not entitled to obtain sensitive evidence from health authority
(1) In any criminal proceedings, a health authority is not required to produce, in response to a subpoena given by the accused person, anything the health authority reasonably considers to be sensitive evidence.(2) This section applies despite anything to the contrary in this or any other Act, or any other law.ch 6, pt 2A, div 3 (ss 281FA–281FG): Ins 2018 No 87, Sch 1.15 [9].
281FB Health authority to give sensitive evidence notice
(1) If a health authority wishes to rely on this Division to refuse production of a thing that it would otherwise be required to produce under a subpoena, the health authority must give the court and the accused person a written notice (a sensitive evidence notice) that complies with this section.(2) The sensitive evidence notice must—(a) describe the thing that the health authority considers to be sensitive evidence, and(b) indicate that, as the health authority considers the thing to be sensitive evidence, the health authority is not required to produce the thing, and(c) indicate that the thing will not be produced, and(d) contain information to the effect that the accused person is entitled to view or listen to the thing in accordance with supervised access arrangements, and(e) set out the name and contact details of the person (the access supervisor) who is responsible for arranging access to the thing under the supervised access arrangements.(3) The court must, on receipt of the sensitive evidence notice, set aside the subpoena (wholly or to the extent that it relates to the sensitive evidence) and order that the accused person be given access to the sensitive evidence in accordance with the sensitive evidence notice.(4) The Attorney General may approve the form of a notice to be used for the purposes of this section.ch 6, pt 2A, div 3 (ss 281FA–281FG): Ins 2018 No 87, Sch 1.15 [9].
281FC Access to be given to accused person
(1) The access supervisor under a sensitive evidence notice must, as soon as practicable after receiving a written request from the accused person, give the accused person, and any other person who has been engaged to assist with the accused person’s case, access to the sensitive evidence under supervised access arrangements.(2) The access supervisor must ensure that reasonable access is given. This may require access to be given on more than one occasion.(3) A person who is given access to a thing under supervised access arrangements must not, without the permission of the access supervisor—(a) copy, or permit a person to copy, the thing, or(b) give the thing to another person, or(c) remove the thing from the custody of the access supervisor.Maximum penalty—100 penalty units, or 2 years imprisonment, or both.ch 6, pt 2A, div 3 (ss 281FA–281FG): Ins 2018 No 87, Sch 1.15 [9].
281FD Supervised access arrangements
(1) A health authority may approve arrangements that enable an accused person, and any other person who has been engaged to assist with the accused person’s case, to view or listen to (but not copy) sensitive evidence held by the health authority. Those arrangements are supervised access arrangements.(2) The supervised access arrangements may require access to take place subject to such conditions as the health authority considers appropriate to ensure that there is no unauthorised reproduction or circulation of the thing and that the integrity of the thing is protected.(3) Without limiting subsection (2), the conditions may require access to take place under the immediate or general supervision of the health authority.(4) A function of a health authority under a supervised access arrangement may, with the agreement of a prosecuting authority, be exercised by the prosecuting authority on behalf of the health authority.ch 6, pt 2A, div 3 (ss 281FA–281FG): Ins 2018 No 87, Sch 1.15 [9].
281FE Health authority entitled to retain possession of sensitive evidence
(1) If during any criminal proceedings an accused person is given sensitive evidence, or a copy of sensitive evidence, by a health authority, the court must, on application by the health authority, direct the accused person to return the sensitive evidence or copy to the custody of the health authority at or before the end of each day during which the proceedings are heard.(2) At the completion of any criminal proceedings in which sensitive evidence is produced by a health authority, or sensitive evidence given to the accused person by a health authority is tendered by the accused person, the court must, on application by the health authority, direct that the sensitive evidence, and any copies of the sensitive evidence made for the purposes of the proceedings, be returned to the custody of the health authority.(3) A function of a health authority under this section may, with the agreement of a prosecuting authority, be exercised by the prosecuting authority on behalf of the health authority. In that case, sensitive evidence is to be returned to the prosecuting authority instead of the health authority.ch 6, pt 2A, div 3 (ss 281FA–281FG): Ins 2018 No 87, Sch 1.15 [9].
281FF Improper copying or circulation of sensitive evidence
(1) A person who has possession of sensitive evidence that is health evidence must not copy, or permit a person to copy, the sensitive evidence, or give possession of the sensitive evidence to another person, except—(a) for the legitimate purposes of a criminal investigation or criminal proceedings, or(b) if the person is a public official, in the proper exercise of the person’s public official functions (including any functions relating to education or training).Maximum penalty—100 penalty units, or 2 years imprisonment, or both.(2) For the purposes of this section, any sensitive evidence in the possession of a person is health evidence if—(a) the person was given possession of the sensitive evidence by a health authority, or by a prosecuting authority exercising functions on behalf of a health authority, in or in connection with a criminal investigation or criminal proceedings, or(b) the person is a public official who created, or obtained possession of, the sensitive evidence in the exercise of, or as a result of an opportunity that arose in the exercise of, public official functions in or in connection with a criminal investigation or criminal proceedings.(3) A person cannot be found guilty of an offence against this section and an offence against section 281F in respect of the same act or omission.(4) In this section—public official has the same meaning as in the Independent Commission Against Corruption Act 1988.ch 6, pt 2A, div 3 (ss 281FA–281FG): Ins 2018 No 87, Sch 1.15 [9].
281FG Evidence may be provided to prosecuting authority
This Part does not prevent a health authority from giving a police officer or prosecuting authority access to sensitive evidence held by the health authority in connection with any criminal investigation or criminal proceedings.ch 6, pt 2A, div 3 (ss 281FA–281FG): Ins 2018 No 87, Sch 1.15 [9].
Part 2B Terrorism evidence
ch 6, pt 2B (ss 281G–281N): Ins 2018 No 29, Sch 1.10 [14].
281G Definitions
(1) In this Part—accused person, criminal investigation, criminal proceedings and have the same meanings as in Part 2A of this Chapter.Commonwealth Criminal Code means the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth.designated terrorism evidence means any thing that is designated as terrorism evidence by a prosecuting authority, as identified in a terrorism evidence notice.publish means disseminate or provide access to one or more persons by means of the internet, radio, television or other media.terrorism evidence means any thing that contains or displays material that—(a) advocates support for engaging in any terrorist acts or violent extremism, or(b) relates to planning or preparing for, or engaging in, any terrorist acts or violent extremism, or(c) advocates joining or associating with a terrorist organisation.terrorism evidence notice means a notice under this Part that identifies a thing as terrorism evidence.terrorist act has the same meaning as in Part 5.3 of the Commonwealth Criminal Code.terrorist organisation has the same meaning as in Division 102 of Part 5.3 of the Commonwealth Criminal Code.unrepresented accused person means an accused person who is not represented by an Australian legal practitioner.(2) In this Part—(a) a reference to an accused person does not include a reference to an Australian legal practitioner representing the accused person, and(b) a reference to a does include a reference to an Australian legal practitioner representing the prosecuting authority.ch 6, pt 2B (ss 281G–281N): Ins 2018 No 29, Sch 1.10 [14].
281H Accused person not entitled to copy of terrorism evidence
(1) A prosecuting authority is not required and cannot be required (whether by subpoena or any other procedure), in or in connection with any criminal investigation or criminal proceedings, to give an accused person a copy of any thing designated by the prosecuting authority as terrorism evidence.(2) A prosecuting authority may designate a thing as terrorism evidence only if the prosecuting authority reasonably considers the thing to be terrorism evidence.(3) This section applies despite anything to the contrary in this or any other Act, or any other law.ch 6, pt 2B (ss 281G–281N): Ins 2018 No 29, Sch 1.10 [14].
281I Procedure for dealing with terrorism evidence
(1) If, but for this Part, a prosecuting authority would be required, in or in connection with any criminal investigation or criminal proceedings, to give to an accused person any thing designated by the prosecuting authority as terrorism evidence, the prosecuting authority must—(a) identify the thing that has been designated as terrorism evidence in a written notice (a terrorism evidence notice), and(b) serve the notice on—(i) in the case of an unrepresented accused person—the accused person, or(ii) in the case of an accused person represented by an Australian legal practitioner—the Australian legal practitioner.(2) A terrorism evidence notice must also contain the following information—(a) that the prosecuting authority is not required to, and will not, give the accused person a copy of designated terrorism evidence,(b) that an unrepresented accused person may view or listen to the designated terrorism evidence at a place nominated by the prosecuting authority and under the supervision of the prosecuting authority,(c) the name and contact details of the person responsible for arranging for the unrepresented accused person to view or listen to the designated terrorism evidence on behalf of the prosecuting authority,(d) that the prosecuting authority will give an Australian legal practitioner representing the accused person a copy of the designated terrorism evidence but the Australian legal practitioner is not to allow the accused person to view or listen to the evidence except under the supervision of the Australian legal practitioner,(e) that it is an offence for an accused person to be in possession of designated terrorism evidence and for an Australian legal practitioner to give possession of designated terrorism evidence to the accused person.ch 6, pt 2B (ss 281G–281N): Ins 2018 No 29, Sch 1.10 [14].
281J Return of designated terrorism evidence
(1) A prosecuting authority may also serve a terrorism evidence notice in respect of evidence that it has provided to the accused person (including by subpoena or any other procedure) in or in connection with a criminal investigation or criminal proceedings that it later designates as terrorism evidence.(2) The notice is to identify the thing that has been designated as terrorism evidence, and is to be served on the accused person or the Australian legal practitioner who represents the accused person, in the same way as a notice under section 281I.(3) A terrorism evidence notice that is served under this section must also contain the following information—(a) that the accused person must return the designated terrorism evidence, if it is in the person’s possession, to the prosecuting authority within the period of time specified in the notice (not being less than 7 days after the notice is served on the accused person),(b) that an unrepresented accused person may, after having returned the designated terrorism evidence, view or listen to the evidence at a place nominated by the prosecuting authority and under the supervision of the prosecuting authority,(c) the name and contact details of the person responsible for arranging for the unrepresented accused person to view or listen to the designated terrorism evidence on behalf of the prosecuting authority,(d) that an Australian legal practitioner representing an accused person may retain the designated terrorism evidence but is not to allow the accused person to view or listen to the designated terrorism evidence except under the supervision of the Australian legal practitioner,(e) that it is an offence for an accused person to be in possession of designated terrorism evidence and for an Australian legal practitioner to give possession of designated terrorism evidence to the accused person.ch 6, pt 2B (ss 281G–281N): Ins 2018 No 29, Sch 1.10 [14].
281K Procedures for giving access to designated terrorism evidence to unrepresented accused person
(1) After receiving a terrorism evidence notice, an unrepresented accused person may give the prosecuting authority a written notice (an access request notice) that indicates that the unrepresented accused person requires access to the designated terrorism evidence.(2) The prosecuting authority must, as soon as practicable after receiving an access request notice, give the unrepresented accused person reasonable access to the designated terrorism evidence so as to enable them to view or listen to (but not copy) the evidence. This may require access to be given on more than one occasion.(3) The prosecuting authority may require any such access to take place subject to such conditions as the prosecuting authority considers appropriate to ensure that there is no unauthorised reproduction or circulation of the designated terrorism evidence and that its integrity is protected.(4) Without limiting subsection (3), the prosecuting authority may require any such access to take place under the supervision of the prosecuting authority or a person assisting the prosecuting authority.(5) A person who is given access to designated terrorism evidence by a prosecuting authority under this section must not, without the authority of the prosecuting authority—(a) copy, or permit a person to copy, the designated terrorism evidence, or(b) give the designated terrorism evidence to another person, or(c) remove the designated terrorism evidence from the custody of the prosecuting authority, or(d) publish the designated terrorism evidence.Maximum penalty—100 penalty units or imprisonment for 2 years, or both.ch 6, pt 2B (ss 281G–281N): Ins 2018 No 29, Sch 1.10 [14].
281L Improper copying or circulation of designated terrorism evidence
(1) A person who has possession of designated terrorism evidence and who knows, or ought reasonably to know, that it is designated terrorism evidence, must not copy, or permit a person to copy, the evidence, give possession of the evidence to another person or publish the evidence except—(a) for the legitimate purposes of a criminal investigation or criminal proceedings, or(b) if the person is a public official, in the proper exercise of the person’s public official functions (including any functions relating to education or training).Maximum penalty—100 penalty units or imprisonment for 2 years, or both.(2) The exceptions provided for by subsection (1) (a) and (b) do not authorise—(a) an Australian legal practitioner representing an accused person to give possession of designated terrorism evidence to the accused person, except while the accused person is under the supervision of the Australian legal practitioner, or(b) an accused person to copy, or to permit a person to copy, or to publish any designated terrorism evidence or to give possession of any designated terrorism evidence to any other person other than an Australian legal practitioner representing the person or the prosecuting authority.(3) In this section—public official means a public official (within the meaning of the Independent Commission Against Corruption Act 1988) who has possession of designated terrorism evidence as a result of the exercise of, or an opportunity that arose in the exercise of, public official functions in or in connection with a criminal investigation or criminal proceedings.ch 6, pt 2B (ss 281G–281N): Ins 2018 No 29, Sch 1.10 [14].
281M Accused person not to possess designated terrorism evidence
(1) An accused person who knows, or ought reasonably to know, that evidence is designated terrorism evidence must not be in possession of that evidence, except while under the supervision of—(a) in the case of an unrepresented accused person—the prosecuting authority or a person assisting the prosecuting authority, or(b) in the case of an accused person represented by an Australian legal practitioner—the Australian legal practitioner.Maximum penalty—100 penalty units or imprisonment for 2 years, or both.(2) This section does not apply to designated terrorism evidence that is in the possession of an accused person if—(a) a terrorism evidence notice has been served on the accused person requiring the person to return the designated terrorism evidence to the prosecuting authority, and(b) the period within which the designated terrorism evidence must be returned has not ended.ch 6, pt 2B (ss 281G–281N): Ins 2018 No 29, Sch 1.10 [14].
281N Prosecuting authority entitled to retain possession of terrorism evidence during criminal proceedings
(1) If, during any criminal proceedings, an unrepresented accused person is given terrorism evidence, or a copy of terrorism evidence, by the prosecuting authority in the proceedings, the court must, on application by the prosecuting authority, direct the unrepresented accused person to return the terrorism evidence or copy to the custody of the prosecuting authority at or before the end of each day during which the proceedings are heard.(2) At the completion of any criminal proceedings in which terrorism evidence is tendered by the prosecuting authority, or terrorism evidence given to the unrepresented accused person by the prosecuting authority is tendered by the unrepresented accused person, the court must, on application by the prosecuting authority, direct that the terrorism evidence, and any copies of the terrorism evidence made for the purposes of the proceedings, be returned to the custody of the prosecuting authority.ch 6, pt 2B (ss 281G–281N): Ins 2018 No 29, Sch 1.10 [14].
Part 3 Scientific examinations and law enforcement devices
ch 6, pt 3, hdg: Ins 2001 No 119, Sch 1 [103]. Am 2014 No 88, Sch 2.16.
282 Scientific examinations
(1) Unless otherwise directed by the court, it is not necessary for a person who has made a scientific examination of any article or living person or dead body to give evidence of the result of the examination.(2) A certificate under the hand of any such person stating—(a) that he or she has made the examination, and(b) the nature of his or her scientific qualifications, andis admissible as evidence of the matters stated in the certificate.(c) the facts and conclusions he or she has arrived at,(3) (Repealed)s 282 (previously s 109): Renumbered 2001 No 119, Sch 1 [104]. Am 2001 No 119, Sch 1 [105]; 2014 No 59, Sch 1.6 [4].
283 Law enforcement devices
(1) A certificate—(a) that would, by virtue of a provision of Division 5 of Part 5.3 of, or Division 2 of Part 5 of Schedule 3 to, the Road Transport Act 2013, be admissible in proceedings for an offence under that Act as evidence of the particulars certified in and by the certificate, or(b) that would, by virtue of section 33, 33D, 35, 46, 47, 47B, 57 or 57B of the former Road Transport (Safety and Traffic Management) Act 1999 (as continued in effect under Schedule 4 to the Road Transport Act 2013), be admissible in proceedings for an offence under the former Act as evidence of the particulars certified in and by the certificate, oris admissible in all criminal proceedings as evidence of those particulars.(c) that would, by virtue of clause 27 or 29 of Schedule 1 to the Marine Safety Act 1998, be admissible in proceedings for an offence under that Act as evidence of the particulars certified in and by the certificate,(2) Despite subsection (1), such a certificate is not admissible in proceedings under the Drug Misuse and Trafficking Act 1985 as evidence of the use or administration, by the person to whom the certificate relates, of any prohibited drug within the meaning of that Act.(3) Evidence is not required in any criminal proceedings—(a) as to the accuracy or reliability of any approved traffic enforcement device or breath analysing instrument to which such a certificate relates, orunless evidence is adduced that the device or instrument was not accurate, was not reliable or was not properly operated.(b) as to the manner in which any approved traffic enforcement device or breath analysing instrument to which such a certificate relates was operated,(4) A photograph—(a) that would, by virtue of a provision of Division 5 of Part 5.3 of the Road Transport Act 2013, be admissible in proceedings under that Act as evidence of the matters shown or recorded on the photograph, oris admissible in all criminal proceedings as evidence of those matters.(b) that would, by virtue of section 47, 47B, 57 or 57B of the former Road Transport (Safety and Traffic Management) Act 1999 (as continued in effect under Schedule 4 to the Road Transport Act 2013), be admissible in proceedings under the former Act as evidence of the matters shown or recorded on the photograph,(5) In this section—approved traffic enforcement device means any of the following—(a) an approved traffic enforcement device (within the meaning of the Road Transport Act 2013),(b) an approved average speed detection device, approved camera detection device, approved camera recording device, approved speed measuring device or approved traffic lane camera device (within the meaning of the former Road Transport (Safety and Traffic Management) Act 1999).breath analysing instrument means any of the following—(a) a breath analysing instrument (within the meaning of the Road Transport Act 2013),(b) a breath analysing instrument (within the meaning of the former Road Transport (Safety and Traffic Management) Act 1999).s 283 (previously s 110): Renumbered 2001 No 119, Sch 1 [104]. Am 2004 No 22, Sch 3 [1]–[5]; 2005 No 4, Sch 2.2; 2006 No 79, Sch 2.2; 2008 No 114, Sch 2.8 [3]; 2009 No 50, Sch 2.1 [1]–[4]; 2009 No 56, Sch 2.11. Subst 2013 No 19, Sch 4.13 [2].
Part 3A Statements
ch 6, pt 3A: Ins 2017 No 55, Sch 1 [10].
283A Application of Part
(1) This Part applies to statements—(a) for the purposes of giving evidence under Division 6 of Part 2 of Chapter 3, and(b) for any other purposes prescribed by the regulations.Note—Material that is included in a brief of evidence for committal proceedings under Division 3 of Part 2 of Chapter 3 may be, but is not required to be, in the form required under this Part (see section 62 (2)).This Part also applies to statements provided in committal proceedings under Division 3A of Part 3 of the Children (Criminal Proceedings) Act 1987 (see section 31D of that Act) and to statements provided under Division 3AA of Part 3 of that Act.(2) This Part does not apply to a recorded statement provided under Part 4B of this Chapter.s 283A: Ins 2017 No 55, Sch 1 [10]. Am 2018 No 88, Sch 5 [8].
283B Form and requirements for written statements
(1) A written statement may be in the form of questions and answers.(2) A written statement must specify the age of the person who made the statement.(3) A written statement must be endorsed in accordance with the regulations by the maker of the statement as to the truth of the statement and any other matter required by the regulations.(4) A written statement or such an endorsement on a statement must be written in a language of which the person who made the statement has a reasonable understanding.(5) If the written statement, or part of it, is in a language other than English, a document purporting to contain an English translation of the statement or part must be annexed to the statement.ss 283B–283H: Ins 2017 No 55, Sch 1 [10].
283C Recordings of interviews with vulnerable persons
(1) A written statement may be in the form of a transcript of a recording made by an investigating official of an interview with a vulnerable person, during which the vulnerable person was questioned by the investigating official in connection with the investigation of the commission or possible commission of the offence (as referred to in section 306R), but only if this section is complied with.(2) The copy of the transcript of the recording must be certified by an investigating official as an accurate transcript of the recording.(3) The accused person must be given, in accordance with the regulations under section 306V (2), a reasonable opportunity to listen to and, in the case of a video recording, to view, the recording.(4) However, if the requirements of the regulations under section 306V (2) have not been complied with, the recording may be admitted if the Magistrate is satisfied that—(a) the parties consent to the recording being so used, or(b) the accused person and his or her Australian legal practitioner (if any) have been given a reasonable opportunity otherwise than in accordance with those regulations to listen to or view the recording and it would be in the interests of justice to so use the recording.(5) Nothing in this Part requires the prosecutor to serve or cause to be served on the accused person a copy of the actual recording made by an investigating official of an interview with the vulnerable person (other than a transcript of the recording).(6) This section does not affect section 306V (2).(7) In this section—investigating official has the same meaning as it has in Part 6 of this Chapter.Note—Part 6 of this Chapter allows vulnerable persons (children and cognitively impaired persons) to give evidence of a previous representation in the form of a recording made by an investigating official of an interview with the vulnerable person. Section 306V (2) (which is contained in that Part) provides that such evidence is not to be admitted unless the accused person and his or her Australian legal practitioner have been given a reasonable opportunity to listen to or view the recording.ss 283B–283H: Ins 2017 No 55, Sch 1 [10].
283D Recordings of interviews with domestic violence complainants
(1) Evidence may be given in the form of a recorded statement instead of a written statement, if the offence is a domestic violence offence.(2) The requirements of Division 3 of Part 4B in relation to service of, and access to, a recorded statement must be complied with in relation to any recorded statement used instead of a written statement.(3) However, if the requirements of Division 3 of Part 4B have not been complied with, the recorded statement may be admitted if the court is satisfied that—(a) the parties consent to the recorded statement being admitted, or(b) the accused person or his or her Australian legal practitioner (if any) have been given a reasonable opportunity otherwise than in accordance with that Division to listen to or view and listen to, the recorded statement and it would be in the interests of justice to admit the recorded statement.(4) This section does not affect section 289I (2).ss 283B–283H: Ins 2017 No 55, Sch 1 [10].
283E Form and requirements for recorded statements
(1) A representation contained in a recorded statement where the offence is a domestic violence offence may be in the form of questions and answers.(2) A recorded statement must contain the following statements by the domestic violence complainant—(a) a statement as to the complainant’s age,(b) a statement as to the truth of the representation,(c) any other matter required by the regulations.(3) If the representation contained in a recorded statement, or part of it, is in a language other than English—(a) the recorded statement must contain an English translation of the representation or part, or(b) a separate written English translation of the representation or part must accompany the recorded statement.ss 283B–283H: Ins 2017 No 55, Sch 1 [10].
283F Death of person who made statement
(1) A written or recorded statement, or a transcript of a recording of an interview with a vulnerable person, is not admissible if, on evidence produced during proceedings, the Magistrate is satisfied that the person who made the statement is dead.(2) If it is found after a statement is admitted in evidence in proceedings that the person who made the statement died before the statement was admitted, the statement is taken not to have been admitted in evidence.(3) This section does not apply to a deposition that is admissible under section 284.ss 283B–283H: Ins 2017 No 55, Sch 1 [10].
283G Use of previous statements in cases involving prescribed sexual offences
(1) In proceedings in relation to a prescribed sexual offence, 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) the accused person has been committed for trial in respect of, or has been convicted of, the other offence, andtranscripts of evidence of the person against whom the offence is alleged to have been committed at the proceedings in which the accused person 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 committal proceedings, be given as evidence instead of a written statement.(c) each of the offences is alleged to have been committed against the same person,(2) A copy of the transcript must be certified by a registrar in accordance with the rules.ss 283B–283H: Ins 2017 No 55, Sch 1 [10].
283H Regulations relating to requirements for statements
(1) The regulations may make provision for or with respect to the use of statements to which this Part applies.(2) Without limiting subsection (1), regulations may be made for or with respect to the following—(a) the form of statements,(b) the signing of and endorsements on written statements by statement makers or other persons,(c) the rejection of statements, or parts of statements, that do not comply with provisions made by or under this Part,(d) other requirements for written or other statements,(e) the giving of notice of the use of written or other statements,(f) evidentiary presumptions about the stated age and signature of a person making a statement and other matters relating to any such statement,(g) service of a written or other statement and copies of proposed exhibits identified in the statement (or a notice relating to inspection of them) on the accused person by the prosecutor.ss 283B–283H: Ins 2017 No 55, Sch 1 [10].
Part 4 Depositions and written statements
ch 6, pt 4, hdg: Ins 2001 No 119, Sch 1 [106].
284 Depositions by persons dangerously ill
(1) If it appears to an authorised person that—(a) a person who is able to give material information about an indictable offence is dangerously ill, andthe authorised person may take the deposition of the person in connection with the offence in the same way as if a prosecution for the offence were then pending before a court.(b) the person’s evidence will probably be lost if not immediately taken,(2) The deposition must be in the form prescribed by the regulations and must be signed by the authorised person.(3) As soon as practicable after the deposition is taken, a copy of the deposition must be delivered to the Attorney General, to the Director of Public Prosecutions and to each person whom the deposition tends to incriminate.(4) If practicable, each person whom the deposition tends to incriminate is entitled, before being committed or placed on trial, to be given full opportunity to cross-examine the deponent.(5) If in proceedings against an accused person—(a) for the offence to which the deposition relates, orit is proved to the satisfaction of the court that the deponent is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the deponent’s life, the deposition may be admitted as evidence for or against the accused person, whether or not it was taken in the presence or hearing of the prosecutor or the accused person.(b) for the murder or manslaughter of the deponent, in the case of his or her death or alleged death by reason of the offence,(6) In this section—means any of the following—(a) a Judge,(b) a justice of the peace who is a registrar of the Local Court or the Drug Court,(c) a justice of the peace who is an employee of the Attorney General’s Department authorised in writing by the Attorney General to be an authorised person for the purposes of this section.s 284 (previously s 111): Renumbered 2001 No 119, Sch 1 [107]. Am 2001 No 119, Sch 1 [108] [109]; 2003 No 71, Sch 2 [1]–[4]; 2007 No 94, Sch 2.
285 Depositions tendered by prosecution
(1) A deposition may be admitted as evidence for the prosecution at the trial of an accused person on proof on oath of each of the following matters—(a) that the deponent—(i) is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the deponent’s life, or(ii) is absent from Australia,(b) that the deposition was recorded—(i) by or in the presence of the Judge before whom it was taken, and(ii) in the presence of the accused person or during any period when the accused person (having been excused under section 72) was absent,(c) that the accused person, or his or her Australian legal practitioner, had full opportunity to cross-examine the witness, or that the accused person (having been excused under section 72) was absent when the deposition was taken and was not represented by an Australian legal practitioner.(2) The deposition—(a) must be in writing, signed by the Judge by or before whom the deposition was taken, or(b) must be in the form of a written transcript of matter recorded by means, other than writing, authorised by law for the recording of depositions.(3) If the deposition is in the form of a written transcript referred to in subsection (2) (b), it must be proved on oath—(a) that the record so made is a true record of the matter so deposed, and(b) that the transcript of the record is a correct transcript of that record.(4) If it appears from the deposition—(a) that it was made in the presence of the accused person, andthe deposition is taken to have been so made and the accused person, or his or her Australian legal practitioner, is taken to have had such an opportunity, unless proved to the contrary.(b) that the accused person, or his or her Australian legal practitioner, had full opportunity to cross-examine the witness,(5) If it appears from the deposition—(a) that it was made while the accused person (having been excused under section 72) was absent, andthe deposition is taken to have been so made and the accused person is taken to have not been represented by an Australian legal practitioner, unless proved to the contrary.(b) that the accused person was not represented by an Australian legal practitioner at that time,(6) In this section—Judge includes a coroner holding office under the Coroners Act 2009.s 285 (previously s 112): Renumbered 2001 No 119, Sch 1 [107]. Am 2001 No 119, Sch 1 [108] [110] [111]; 2006 No 120, Sch 3.7 [9] [12]; 2009 No 41, Sch 4.
286 Depositions tendered by accused person
(1) The deposition of any witness called and examined before a judge by and on behalf of the accused person may, if the accused person so requires, be admitted as evidence in his or her defence at the trial—(a) if the witness—(i) is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the witness’s life, or(ii) is absent from Australia, or(b) if the committing Magistrate has certified, before committing the accused person for trial, that in the opinion of the Magistrate—(i) the evidence of the witness is material, and(ii) the witness is willing to attend the trial, but is unable to bear the expense of attendance.(2) A deposition may not be admitted as evidence on the ground referred to in subsection (1) (b) if the witness has, in due time before the trial, been subpoenaed by the Crown.(3) In this section—Judge includes a coroner holding office under the Coroners Act 2009.s 286 (previously s 113): Renumbered 2001 No 119, Sch 1 [107]. Am 2001 No 119, Sch 1 [112]–[114]; 2009 No 41, Sch 4.
287 Evidentiary effect of certain transcripts
(1) If a deposition referred to in section 285 or 286 is in the form of a written transcript of matter recorded by means, other than writing, authorised by law for the recording of depositions—(a) the record so made is taken to be a true record of the matter so deposed, andunless proved to the contrary.(b) the transcript of the record is taken to be a correct transcript of that record,(2) Subsection (1) applies only to—(a) a transcript made in the form of shorthand notes, being a transcript identified by, and signed in the handwriting of, the person purporting to have made those notes, or(b) a transcript made by other means (other than writing) authorised by law for the recording of depositions, being a transcript certified in the manner prescribed by the rules.s 287 (previously s 114): Renumbered 2001 No 119, Sch 1 [107]. Am 2001 No 119, Sch 1 [115]; 2016 No 55, Sch 3.7.
288 Depositions taken during pre-trial investigations
A deposition taken on the preliminary or other investigation of an indictable offence—(a) may be admitted as evidence on the trial of the accused person for any other offence, whether of the same or of a different kind, if it would be admissible on his or her trial for the offence in respect of which it was taken, and(b) may be proved in the same manner as if the accused person were on trial for that offence.s 288 (previously s 115): Renumbered 2001 No 119, Sch 1 [107].
289 Written statements admitted in committal proceedings
(1) This section applies to a written statement (a prescribed written statement) the whole or any part of which has been admitted as evidence under Division 6 of Part 2 of Chapter 3 or under Division 3A of Part 3 of the Children (Criminal Proceedings) Act 1987, including any part of the statement that has been rejected for the purposes of that Division.(2) Except in so far as the court otherwise orders, a prescribed written statement may be admitted as evidence for the prosecution at the trial of the accused person on proof on oath that the person who made the statement—(a) is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the person’s life, or(b) is absent from Australia.(3) If the accused person so requires, a prescribed written statement may be admitted as evidence in the accused person’s defence at the trial of the accused person whenever—(a) the person who made the statement—(i) is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the person’s life, or(ii) is absent from Australia, or(b) the committing Magistrate has certified, before committing the person for trial, that in the opinion of the Magistrate—(i) the evidence of the person who made the statement is material, and(ii) the person is willing to attend the trial, but is unable to bear the expense of attendance.(4) A statement may not be admitted as evidence on the ground referred to in subsection (3) (b) if the person who made the statement has, in due time before the trial, been subpoenaed by the Crown.(5) A prescribed written statement made in respect of an indictable offence may be admitted as evidence on the trial of the accused person for any other offence, whether of the same or of a different kind, if it would be admissible on his or her trial for the offence in respect of which it was made.(6) If at a trial it appears to the court that the whole or any part of a prescribed written statement is inadmissible, the court may reject the statement or that part, as the case may be, as evidence.s 289 (previously s 116): Renumbered 2001 No 119, Sch 1 [107]. Am 2001 No 119, Sch 1 [116]–[119]; 2017 No 55, Sch 1 [11].
Part 4A Use of random sample evidence
ch 6, pt 4A: Ins 2010 No 9, Sch 2 [3].
289A Definitions
In this Part—means any person, or person of a class, prescribed by the regulations for the purposes of this definition.child abuse material and material have the same meanings as they have in Division 15A of Part 3 of the Crimes Act 1900.child abuse material offence means an offence under Division 15A of Part 3 of the Crimes Act 1900.seized material, in relation to proceedings for a child abuse material offence, means material—(a) that came into the possession of a police officer in the course of the exercise of functions as a police officer, and(b) some of which is alleged child abuse material that is the subject of the proceedings.s 289A: Ins 2010 No 9, Sch 2 [3]. Am 2012 No 11, Sch 1.1 [5] [6].
289B Use of random sample evidence in child abuse material cases
(1) An authorised classifier may, in connection with any proceedings for a child abuse material offence, conduct an examination of a random sample of seized material.(2) In proceedings for the child abuse material offence concerned, evidence adduced by the prosecutor of any findings of the authorised classifier as to the nature and content of the random sample is admissible as evidence of the nature and content of the whole of the material from which the random sample was taken.(3) Accordingly, it is open to a court to find that any type of child abuse material found by an authorised classifier to be present in a particular proportion in the random sample is present in the same proportion in the material from which the random sample was taken.(4) A certificate of an authorised classifier, that certifies any of the following matters, is admissible in proceedings for a child abuse material offence as evidence of the matters certified—(a) that the authorised classifier conducted an examination of a random sample of seized material,(b) the findings of the authorised classifier as to the nature and content of the random sample.(5) A certificate signed by a person purporting to be an authorised classifier is taken to be a certificate of an authorised classifier, in the absence of evidence to the contrary.(6) Evidence is admissible under this section only if the court is satisfied that the accused person, or an Australian legal practitioner representing the accused person, has been given a reasonable opportunity to view all of the seized material.(7) This section does not affect the provisions of Part 2A, which restrict the access of an accused person to sensitive evidence.(8) The regulations may make further provision for or with respect to the taking and admissibility of random sample evidence under this section, including by providing for—(a) the circumstances or types of cases in which the prosecutor may adduce evidence of the findings of an authorised classifier under this section, and(b) the procedure for taking and examining random samples of material, and(c) any further requirements as to the content and service of a certificate of an authorised classifier.s 289B: Ins 2010 No 9, Sch 2 [3]. Am 2012 No 11, Sch 1.1 [7]–[10].
Part 4B Giving of evidence by domestic violence complainants
Division 1 Preliminary
ch 6, pt 4B, divs 1–3 (ss 289C–289M): Ins 2014 No 83, Sch 1 [19].
289C Interpretation
(1) In this Part—complainant means a domestic violence complainant.recording means—(a) an audio recording, or(b) a video and audio recording.view a video recording means view and listen to.(2) Words and expressions that are defined in the Evidence Act 1995 and that are used in this Part have the same meanings in this Part as they have in the Evidence Act 1995.ch 6, pt 4B, divs 1–3 (ss 289C–289M): Ins 2014 No 83, Sch 1 [19].
289D Meaning of “recorded statement”
In this Act, a recorded statement means a recording made by a police officer of a representation made by a complainant when the complainant is questioned by a police officer in connection with the investigation of the commission of a domestic violence offence if—(a) the recording is made with the informed consent of the complainant, and(b) the questioning occurs as soon as practicable after the commission of the offence.ch 6, pt 4B, divs 1–3 (ss 289C–289M): Ins 2014 No 83, Sch 1 [19].
289E Relationship to Evidence Act 1995
The provisions of this Part are in addition to the provisions of the Evidence Act 1995 and do not, unless a contrary intention is shown, affect the operation of that Act.Note—For example, provisions of that Act such as section 21 (relating to oaths and affirmations) and section 65 (an exception to the hearsay rule where a person is not available to give evidence) are not affected by this Part.ch 6, pt 4B, divs 1–3 (ss 289C–289M): Ins 2014 No 83, Sch 1 [19].
Division 2 Giving of evidence of out of court representations
ch 6, pt 4B, divs 1–3 (ss 289C–289M): Ins 2014 No 83, Sch 1 [19].
289F Complainant may give evidence in chief in form of recording
(1) In proceedings for a domestic violence offence, a complainant may give evidence in chief of a representation made by the complainant wholly or partly in the form of a recorded statement that is viewed or heard by the court.(2) A representation contained in a recorded statement may be in the form of questions and answers.(3) A recorded statement must contain the following statements by the complainant—(a) a statement as to the complainant’s age,(b) a statement as to the truth of the representation,(c) any other matter required by the rules.(4) If the representation contained in a recorded statement, or part of it, is in a language other than English—(a) the recorded statement must contain an English translation of the representation or part, or(b) a separate written English translation of the representation or part must accompany the recorded statement.(5) A complainant who gives evidence wholly or partly in the form of a recorded statement must subsequently be available for cross-examination and re-examination—(a) orally in the courtroom, or(b) in accordance with any other alternative arrangements permitted for the complainant under this or any other Act.(6) This section does not prevent a complainant from giving evidence in any other manner permitted for the complainant under this Act or any other law.ch 6, pt 4B, divs 1–3 (ss 289C–289M): Ins 2014 No 83, Sch 1 [19].
289G Determination as to whether evidence will be given by recording
In determining whether or not to have a complainant give evidence wholly or partly in the form of a recorded statement, the prosecutor must take into account the following matters—(a) the wishes of the complainant,(b) any evidence of intimidation of the complainant by the accused person,(c) the objects of the Crimes (Domestic and Personal Violence) Act 2007.ch 6, pt 4B, divs 1–3 (ss 289C–289M): Ins 2014 No 83, Sch 1 [19].
289H Use of evidence in concurrent or related domestic violence proceedings
(1) This section applies if an application for an order under the Crimes (Domestic and Personal Violence) Act 2007 is made concurrently with proceedings for a domestic violence offence or arises from the circumstances of the alleged domestic violence offence.(2) If evidence is given wholly or partly in the form of a recorded statement in the proceedings for the domestic violence offence, that evidence may also be given in that form in the proceedings relating to the application for the order. Any such evidence is to be given in accordance with any rules made under the Crimes (Domestic and Personal Violence) Act 2007.ch 6, pt 4B, divs 1–3 (ss 289C–289M): Ins 2014 No 83, Sch 1 [19].
289I Admissibility of recorded evidence
(1) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent the admission or use of evidence of a representation in the form of a recorded statement.(2) Evidence of a representation of a complainant that is given in the form of a recorded statement is not to be admitted unless the accused person was given, in accordance with Division 3, a reasonable opportunity to listen to, and, in the case of a video recording, view the recorded statement.(3) However, the recorded statement may be admitted even if the requirements of Division 3 have not been complied with if the court is satisfied that—(a) the parties consent to the recorded statement being admitted, or(b) the accused person or his or her Australian legal practitioner (if any) have been given a reasonable opportunity otherwise than in accordance with Division 3 to listen to or view the recorded statement and it would be in the interests of justice to admit the recorded statement.ch 6, pt 4B, divs 1–3 (ss 289C–289M): Ins 2014 No 83, Sch 1 [19].
289J Warning to jury
If a complainant gives evidence wholly or partly in the form of a recorded statement in accordance with this Division in proceedings in which there is a jury, the judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the evidence being given in that way.ch 6, pt 4B, divs 1–3 (ss 289C–289M): Ins 2014 No 83, Sch 1 [19].
289K Transcripts of recordings
The court may order that a transcript of all or part of the evidence given in the form of a recorded statement be supplied to the jury if it appears to the court that a transcript would be likely to aid the jury’s comprehension of the evidence.ch 6, pt 4B, divs 1–3 (ss 289C–289M): Ins 2014 No 83, Sch 1 [19].
Division 3 Service of and access to recorded statements
ch 6, pt 4B, divs 1–3 (ss 289C–289M): Ins 2014 No 83, Sch 1 [19].
289L Service of recorded statement
(1) This section applies if an accused person is represented by an Australian legal practitioner in proceedings for a domestic violence offence in which it is proposed to give the evidence of a complainant wholly or partly in the form of a recorded statement.(2) The prosecutor must cause a copy of the recorded statement to be served on the Australian legal practitioner representing the accused person as soon as practicable after the proceedings are commenced or the prosecutor determines that evidence is to be given in the form of the recorded statement, whichever occurs later.ch 6, pt 4B, divs 1–3 (ss 289C–289M): Ins 2014 No 83, Sch 1 [19].
289M Access to recorded statement
(1) This section applies if an accused person is not represented by an Australian legal practitioner in proceedings for a domestic violence offence in which it is proposed to give the evidence of a complainant wholly or partly in the form of a recorded statement.(2) The prosecutor must cause an audio copy of the recorded statement to be served on the accused person as soon as practicable after the proceedings are commenced or the prosecutor determines that evidence is to be given in the form of the recorded statement, whichever occurs later.(3) The prosecutor must also, so far as is reasonably practicable, provide the accused person with an opportunity to view a recorded statement that is in the form of a video recording at a police station on at least one of the following occasions—(a) when the accused person is being questioned in relation to the alleged domestic violence offence,(b) at the request of the accused person, on a day arranged with the accused person,(c) on another day specified by notice in writing given to the accused person by the prosecutor before committal proceedings or the trial commences.(4) If it is not reasonably practicable for the prosecutor to comply with subsection (3), the prosecutor must provide the accused person with an opportunity to view a recorded statement that is in the form of a video recording on a day on which proceedings relating to the offence are being held.(5) Evidence may not be adduced in any proceedings of the behaviour or response of an accused person when viewing a recorded statement at a place specified for that purpose under this section, unless—(a) the viewing took place while the person was being questioned in relation to an alleged domestic violence offence, or(b) the proceedings relate to the behaviour.(6) Any period during which an accused person views a video recording under subsection (3) (a) is to be included in the time to be taken into account for the purposes of determining the maximum investigation period under section 115 of the Law Enforcement (Powers and Responsibilities) Act 2002.ch 6, pt 4B, divs 1–3 (ss 289C–289M): Ins 2014 No 83, Sch 1 [19].
Division 4 Miscellaneous provisions for recorded statements
ch 6, pt 4B, div 4, hdg: Ins 2014 No 83, Sch 1 [19]. Am 2020 No 36, Sch 2[2].
289N Validity of proceedings not affected
(1) The failure of a complainant to give evidence in accordance with a provision of this Part does not affect the validity of any proceeding or any decision made in connection with that proceeding.(2) The failure of a police officer to record a representation of a complainant in accordance with the requirements of any rules or regulations made under this Part does not affect the validity of any proceeding in which evidence of the representation is given.
289O Prosecutor entitled to retain possession of recorded statement
(1) At the completion of any criminal proceedings in which a recorded statement is played, the court must, on application by the prosecutor, direct that the recorded statement be returned to the custody of the prosecutor.(2) In this section, a reference to a recorded statement includes a reference to any copy of a recorded statement made for the purposes of the proceedings.
289P Improper copying or dissemination of recorded statement
(1) A person who has possession of a recorded statement must not copy, or permit a person to copy, the recorded statement, give possession of the recorded statement to another person or publish the recorded statement, except—(a) for the legitimate purposes of a criminal investigation or criminal proceedings, or(b) if the person is a public official, in the proper exercise of the person’s public official functions (including any functions relating to education or training).Maximum penalty—100 penalty units, or 2 years imprisonment, or both.(2) This section does not permit any person, including an Australian legal practitioner who represents an accused person, to give possession of a video copy of a recorded statement to the accused person or to permit the accused person to copy or obtain a copy of a recorded statement.(3) In this section, a reference to a recorded statement includes a reference to any copy of a recorded statement made for the purposes of the proceedings.(4) An offence under this section is to be dealt with summarily.(5) In this section—public official has the same meaning as in the Independent Commission Against Corruption Act 1988.publish means disseminate or provide access to one or more persons by means of the internet, radio, television or other media.
289Q Court powers
(1) The court may make, vary or revoke an order under a provision of this Part either on its own motion or on application by a party to the proceeding or by the complainant giving evidence.(2) Unless a contrary intention is shown, nothing in this Part limits any discretion that a court has with respect to the conduct of a proceeding.(3) Without limiting any other power of a court to adjourn proceedings, a court may adjourn any proceedings relating to a domestic violence offence for not more than 14 days to enable an accused person to view or listen to a recorded statement on the ground that the accused person has not had a reasonable opportunity to view or listen to the recording.
289R Rules of court
Rules of court may (subject to any regulations made under this Act) be made in respect of the giving of evidence in the form of a recorded statement in proceedings for a domestic violence offence.
289S Regulations
Without limiting any other provision of this Part, regulations may be made for or with respect to the following matters—(a) the giving of informed consent to the recording of a representation for the purposes of a recorded statement,(b) service of, or access to, a recorded statement,(c) the form in which a copy of a recorded statement is served on an accused person.
Division 5 Giving of evidence by domestic violence complainants—other provisions
ch 6, pt 4B, div 5: Ins 2020 No 36, Sch 2[3].
289T Application of Division
(1) This Division applies to the following—(a) proceedings for a domestic violence offence,(b) apprehended violence order proceedings but only if—(i) the defendant in the proceedings is a person charged with a domestic violence offence, and(ii) the protected person is the alleged victim of the offence.(2) If the complainant in the proceedings is a person against whom a prescribed sexual offence is alleged to have been committed by the accused person, this Division applies in addition to Part 5.ss 289T–289V: Ins 2020 No 36, Sch 2[3].
289U Proceedings must be held in camera when complainant gives evidence
(1) Unless a court otherwise directs, the following parts of proceedings must be held in camera—(a) parts in which evidence is given by a complainant,(b) parts in which a recording of evidence of the complainant is heard by the court.(2) The court may direct that a part of proceedings specified in subsection (1) be held in open court only—(a) at the request of a party to the proceedings, and(b) if the court is satisfied that—(i) special reasons in the interests of justice require the part of the proceedings to be held in open court, or(ii) the complainant consents to giving their evidence in open court.(3) The principle that proceedings for an offence should generally be open or public in nature, or that justice should be seen to be done, does not of itself constitute special reasons in the interests of justice requiring the part of the proceedings to be held in open court.(4) This section—(a) applies to a complainant who—(i) gives evidence in a way provided for by the other provisions of this Part, or(ii) if the complainant is a vulnerable person—gives evidence in a way provided for by Part 6, and(b) does not affect an entitlement of the complainant to—(i) give evidence in a way provided for by the other provisions of this Part, or(ii) have a support person present when giving evidence under section 306ZQ, or(iii) if the complainant is a vulnerable person—give evidence in a way provided for by Part 6.ss 289T–289V: Ins 2020 No 36, Sch 2[3].
289UA Other parts of proceedings may be heard in camera
(1) The court may direct that any other part of any proceedings not specified in section 289U in relation to a domestic violence offence, or the entire proceedings, be held in camera.(2) The court may make a direction under this section on the court’s own motion or at the request of a party to the proceedings.(3) In determining whether to make a direction under this section, the court is to consider the following matters—(a) the need of the complainant to have any person excluded from those proceedings,(b) the need of the complainant to have any person present in those proceedings,(c) the interests of justice,(d) any other matter that the court considers relevant.(4) The requirement under section 289U that any part of the proceedings in which evidence is given by a complainant be held in camera unless the court otherwise directs still applies whether or not a direction is made under this section.(5) If the court makes a direction under this section, it may, either absolutely or subject to conditions, exempt any person from the direction to the extent necessary to allow that person to be present as a support for a person giving evidence or for any other purpose that the court thinks fit.(6) This section does not affect—(a) the entitlement of a complainant to have a person or persons present when giving evidence under section 306ZQ, or(b) the entitlement of a vulnerable person to have a person present when giving evidence under section 306ZK.ss 289T–289V: Ins 2020 No 36, Sch 2[3].
289V Alternative means of giving evidence and alternative arrangements for complainants
(1) A complainant who gives evidence in proceedings is entitled, but may choose not—(a) to give the evidence from a place other than the courtroom by audio visual link or other technology that enables communication between the place and the courtroom (alternative means), or(b) to give the evidence by use of arrangements made to restrict contact, including visual contact, between the complainant and the accused person or other persons in the courtroom (alternative arrangements), including the following—(i) use of screens,(ii) planned seating arrangements for persons who have an interest in the proceedings, including the level at which the persons are seated and the persons in the complainant’s line of vision.(2) If, to enable evidence to be given by alternative means or by use of alternative arrangements, the court considers it appropriate, the court may adjourn the proceedings or part of the proceedings from the courtroom to another court or place.(3) Despite subsection (1)(a), a complainant must not give evidence by alternative means if a court orders, on the court’s own initiative or on application by a party to the proceedings, that alternative means must not be used.(4) A court may make an order under subsection (3) only if the court is satisfied that there are special reasons, in the interests of justice, for the complainant’s evidence not to be given by alternative means.(5) In proceedings in which there is a jury and evidence is given by alternative means or by use of alternative arrangements, the Judge must—(a) inform the jury that it is standard procedure for complainants’ evidence in proceedings for a domestic violence offence to be given by the means or by use of the arrangements, and(b) warn the jury not to draw any inference adverse to the accused person or give the evidence greater or lesser weight because it is given by the means or by use of the arrangements.(6) A place outside the courtroom from which a complainant gives evidence under this section is taken to be part of the courtroom in which the proceedings are being held.(7) If a complainant gives evidence by alternative means or by use of alternative arrangements in a place other than a courtroom, the court may order that a court officer be present at the place.(8) This section does not apply to or in relation to the giving of evidence by a vulnerable person if Part 6, Division 4 applies to the giving of the evidence.(9) This section extends to evidence given in proceedings instituted before the commencement of this section, including a new trial that was ordered to take place before that commencement and proceedings that have been partly heard.Note—Part 3B of the Witness Protection Act 1995 provides for alternative means for the giving of evidence by a person who is, or was, a participant in a witness protection program under that Act.ss 289T–289V: Ins 2020 No 36, Sch 2[3].
Part 5 Evidence in sexual offence proceedings
ch 6, pt 5, hdg: Ins 2001 No 119, Sch 1 [120].
Division 1 Evidence in certain sexual offence proceedings
ch 6, pt 5, div 1, hdg: Ins 2001 No 119, Sch 1 [120].
290 Application
(1) This Division applies to proceedings in respect of a prescribed sexual offence, including committal proceedings.(2) This Division applies to proceedings in which a person stands charged with a prescribed sexual offence, whether the person stands charged with that offence alone or together with any other offence (as an alternative or additional count) and whether or not the person is liable, on the charge, to be found guilty of any other offence.s 290 (previously s 117): Renumbered 2001 No 119, Sch 1 [121]. Am 2003 No 9, Sch 2.1 [2]. Subst 2005 No 25, Sch 1 [6].
290A Definitions
(1) In this Division—accused person, in relation to any proceedings, means the person who stands, or any of the persons who stand, charged in those proceedings with a prescribed sexual offence.complainant, in relation to any proceedings, means the person, or any of the persons, against whom a prescribed sexual offence with which the accused person stands charged is alleged to have been committed.(2) In this Division, a reference to a person against whom a prescribed sexual offence is alleged to have been committed includes—(a) in relation to an offence under section 80E of the Crimes Act 1900, a reference to the person who is alleged to have been the subject of sexual servitude, and(b) in relation to an offence under section 91D, 91E or 91F of the Crimes Act 1900, a reference to the person under the age of 18 years who is alleged to have participated in an act of child prostitution, and(c) in relation to an offence under section 91G of the Crimes Act 1900, a reference to the person under the age of 18 years who is alleged to have been used for the production of child abuse material, and(d) in relation to an offence under section 316 or 316A of the Crimes Act 1900, a reference to the person against whom the concealed serious indictable offence or child abuse offence (as the case requires) is alleged to have been committed.s 290A: Ins 2005 No 25, Sch 1 [6]. Am 2010 No 9, Sch 2 [4] [5]; 2018 No 88, Sch 5 [9]; 2019 No 20, Sch 1.10[9] [10].
291 Proceedings must be held in camera when complainant gives evidence
(1) Any part of any proceedings in respect of a prescribed sexual offence in which evidence is given by a complainant, or an audio visual or audio recording of evidence of the complainant is heard by the court, is to be held in camera, unless the court otherwise directs.(2) This section applies even if the complainant gives evidence by means of closed-circuit television or other technology or under any alternative arrangements available to the complainant under section 289V or 294B or under Part 6.(3) The court may direct that the part of proceedings in which evidence is given by the complainant be held in open court only at the request of a party to the proceedings and only if the court is satisfied that—(a) special reasons in the interests of justice require the part of the proceedings to be held in open court, or(b) the complainant consents to giving his or her evidence in open court.(4) The principle that proceedings for an offence should generally be open or public in nature, or that justice should be seen to be done, does not of itself constitute special reasons in the interests of justice requiring the part of the proceedings to be held in open court.(5) If the court directs that the part of the proceedings in which evidence is given by the complainant be held in open court, that does not affect the entitlement of the complainant to give evidence in the manner provided for by section 289V or 294B or by Part 6.(6) If the proceedings are proceedings in which a record of the original evidence of the complainant is tendered by the prosecutor under Division 3, this section does not require the record to be tendered in camera.(7) This section does not affect the entitlement of a complainant to have a person or persons present when giving evidence under section 294C.s 291 (previously s 118): Renumbered 2001 No 119, Sch 1 [121]. Subst 2005 No 25, Sch 1 [7]. Am 2007 No 6, Sch 1 [5]; 2016 No 54, Sch 1.7 [2] [3]; 2020 No 36, Sch 2[4] [5].
291A Other parts of proceedings may be heard in camera
(1) The court may direct that any other part of any proceedings in respect of a prescribed sexual offence, or the entire proceedings, be held in camera.(2) The court may make a direction under this section on its own motion or at the request of any party to the proceedings.(3) In determining whether to make a direction under this section, the court is to consider the following matters—(a) the need of the complainant to have any person excluded from those proceedings,(b) the need of the complainant to have any person present in those proceedings,(c) the interests of justice,(d) any other matter that the court thinks relevant.(4) The requirement under section 291 that any part of the proceedings in which evidence is given by a complainant be held in camera unless the court otherwise directs still applies whether or not a direction is made under this section.(5) If the court makes a direction under this section, it may (either absolutely or subject to conditions) exempt any person from that direction to the extent necessary to allow that person to be present as a support for a person giving evidence or for any other purpose that the court thinks fit.(6) This section does not affect—(a) the entitlement of a complainant to have a person or persons present when giving evidence under section 294C, or(b) the entitlement of a vulnerable person to have a person present when giving evidence under section 306ZK.s 291A: Ins 2005 No 25, Sch 1 [7]. Am 2007 No 6, Sch 1 [6]; 2014 No 83, Sch 1 [20].
291B Incest offence proceedings to be held entirely in camera
(1) Any proceedings in respect of an offence under section 78A or 78B of the Crimes Act 1900 are to be held entirely in camera, despite any other provision of this Division.(2) The court may (either absolutely or subject to conditions) exempt any person from the requirement that the proceedings be held in camera to the extent necessary to allow that person to be present as a support for a person giving evidence or for any other purpose that the court thinks fit.(3) This section does not affect—(a) the entitlement of a complainant to have a person or persons present when giving evidence under section 294C, or(b) the entitlement of a vulnerable person to have a person present when giving evidence under section 306ZK.s 291B: Ins 2005 No 25, Sch 1 [7]. Am 2007 No 6, Sch 1 [7]; 2014 No 83, Sch 1 [21].
291C Media access to proceedings held in camera
(1) If a complainant gives evidence in proceedings in respect of a prescribed sexual offence from a place other than the courtroom by means of closed-circuit television facilities or other technology that enables communication between that place and the courtroom (whether under section 289V or 294B or Part 6), and the proceedings, or the part of the proceedings concerned, are held in camera under this Division, a media representative may, unless the court otherwise directs, enter or remain in the courtroom while the evidence is given from that other place. This subsection does not apply to proceedings in respect of an offence under section 78A or 78B of the Crimes Act 1900.(2) The fact that proceedings in respect of a prescribed sexual offence, or any part of such proceedings, are held in camera under this Division does not prevent the court from making such arrangements as the court considers reasonably practicable to allow media representatives to view or hear the evidence while it is given, or to view or hear a record of that evidence, as long as the media representatives are not present in the courtroom or other place where the evidence is given during the in camera proceedings.Note—For example, the court may permit media representatives to view the proceedings from a place other than the courtroom by means of closed-circuit television facilities.(3) In this section—media representative, in relation to any proceedings, means a person engaged in preparing a report of the proceedings for dissemination through a public news medium.s 291C: Ins 2005 No 25, Sch 1 [7]. Am 2007 No 6, Sch 1 [5]; 2020 No 36, Sch 2[6].
292 (Repealed)
s 292 (previously s 119): Renumbered 2001 No 119, Sch 1 [121]. Am 2001 No 119, Sch 1 [122]; 2005 No 25, Sch 1 [8] [9]; 2006 No 88, Sch 1 [5]; 2006 No 120, Sch 3.7 [9]. Rep 2010 No 106, Sch 2.3 [1].
293 Admissibility of evidence relating to sexual experience
(1) This section applies to proceedings in respect of a prescribed sexual offence.(2) Evidence relating to the sexual reputation of the complainant is inadmissible.(3) Evidence that discloses or implies—(a) that the complainant has or may have had sexual experience or a lack of sexual experience, oris inadmissible.(b) has or may have taken part or not taken part in any sexual activity,(4) Subsection (3) does not apply—(a) if the evidence—(i) is of the complainant’s sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and(ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,(b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant,(c) if—(i) the accused person is alleged to have had sexual intercourse (within the meaning of Division 10 of Part 3 of the Crimes Act 1900) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and(ii) the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person,(d) if the evidence is relevant to—(i) whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or(ii) whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person,(e) if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence),and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.(f) if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked,(5) A witness must not be asked—(a) to give evidence that is inadmissible under subsection (2) or (3), or(b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible.(6) If the court is satisfied—(a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period—(i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or(ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, andthe complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified.(b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication,(7) On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury.(8) If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision.(9) (Repealed)s 293 (previously s 105): Renumbered 2001 No 119, Sch 1 [123]. Am 2005 No 25, Sch 1 [10] [11]; 2018 No 33, Sch 4 [9].
293A Warning may be given by Judge if differences in complainant’s account
(1) This section applies if, on the trial of a person for a prescribed sexual offence, the Judge, after hearing submissions from the prosecution and the accused person, considers that there is evidence that suggests a difference in the complainant’s account that may be relevant to the complainant’s truthfulness or reliability.(2) In circumstances to which this section applies, the Judge may inform the jury—(a) that experience shows—(i) people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time, and(ii) trauma may affect people differently, including affecting how they recall events, and(iii) it is common for there to be differences in accounts of a sexual offence, and(iv) both truthful and untruthful accounts of a sexual offence may contain differences, and(b) that it is up to the jury to decide whether or not any differences in the complainant’s account are important in assessing the complainant’s truthfulness and reliability.(3) In this section—difference in an account includes—(a) a gap in the account, and(b) an inconsistency in the account, and(c) a difference between the account and another account.s 293A: Ins 2018 No 33, Sch 4 [10].
294 Warning to be given by Judge in relation to lack of complaint in certain sexual offence proceedings
(1) This section applies if, on the trial of a person for a prescribed sexual offence, evidence is given or a question is asked of a witness that tends to suggest—(a) an absence of complaint in respect of the commission of the alleged offence by the person on whom the offence is alleged to have been committed, or(b) delay by that person in making any such complaint.(2) In circumstances to which this section applies, the Judge—(a) must warn the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and(b) must inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault, and(c) must not warn the jury that delay in complaining is relevant to the victim’s credibility unless there is sufficient evidence to justify such a warning.(3) If the trial of the person also relates to a domestic violence offence alleged to have been committed by the person against the same victim, the Judge may—(a) also give a warning under section 306ZR, or(b) give a single warning to address both types of offences.(4), (5) (Repealed)s 294 (previously s 107): Renumbered 2001 No 119, Sch 1 [124]. Am 2006 No 88, Sch 1 [6] [7]; 2007 No 46, Sch 2.3 [2]; 2020 No 36, Sch 2[7].
294AA Warning to be given by Judge in relation to complainants’ evidence
(1) A judge in any proceedings to which this Division applies must not warn a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses.(2) Without limiting subsection (1), that subsection prohibits a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant.(3) Sections 164 and 165 of the Evidence Act 1995 are subject to this section.s 294AA: Ins 2006 No 88, Sch 1 [8].
294A Arrangements for complainant in prescribed sexual offence proceedings giving evidence when accused person is unrepresented
(1) This section applies to proceedings in respect of a prescribed sexual offence during which the accused person is not represented by an Australian legal practitioner.(2) The complainant cannot be examined in chief, cross-examined or re-examined by the accused person, but may be so examined instead by a person appointed by the court.(3) The person appointed by the court is to ask the complainant only the questions that the accused person requests that person to put to the complainant.(4) Any such person, when acting in the course of an appointment under this section, must not independently give the accused person legal or other advice.(5) The court does not have a discretion to decline to appoint a person under this section, despite anything to the contrary in section 306ZL or any other Act or law.(6) This section applies whether or not closed-circuit television facilities or other similar technology (or alternative arrangements) are used by the complainant to give evidence.(7) If such a person is appointed in proceedings before a jury, the judge must—(a) inform the jury that it is standard procedure in such cases to appoint the person to put the questions to the complainant, and(b) warn the jury not to draw any inference adverse to the accused person or to give the evidence any greater or lesser weight because of the use of that arrangement.(8) This section extends to proceedings instituted before the commencement of this section, including proceedings that have been partly heard.(9) Any thing done or omitted to be done by a person who—(a) is appointed under this section, andwhen acting in the course of the appointment or otherwise in accordance with this section does not, if the thing was done or omitted to be done in good faith, subject the person personally to any action, liability, claim or demand.(b) is an Australian lawyer,s 294A: Ins 2003 No 42, Sch 1 [1]. Am 2005 No 25, Sch 1 [12] [13]; 2006 No 88, Sch 1 [9]; 2006 No 120, Sch 3.7 [12]; 2007 No 6, Sch 1 [8].
294B Giving of evidence by complainant in prescribed sexual offence proceedings—alternative arrangements
(1) This section applies to evidence given in proceedings (including a new trial) in respect of a prescribed sexual offence.(1A) This section applies (with any necessary modifications) to the giving of evidence in apprehended violence order proceedings by a protected person in the same way as it applies to the giving of evidence in criminal proceedings by a complainant but only if—(a) the defendant in the proceedings is a person who is charged with a prescribed sexual offence, and(b) the protected person is the alleged victim of the offence.(2) This section does not apply to or in respect of the giving of evidence by a vulnerable person if Division 4 of Part 6 applies to the giving of that evidence.(2A) This section applies in addition to Part 4B, if the complainant is a domestic violence complainant.(3) A complainant who gives evidence to which this section applies is entitled (but may choose not)—(a) to give that evidence from a place other than the courtroom by means of closed-circuit television facilities or other technology that enables communication between that place and the courtroom, or(b) to give that evidence by use of alternative arrangements made to restrict contact (including visual contact) between the complainant and the accused person or any other person or persons in the courtroom, including the following—(i) use of screens,(ii) planned seating arrangements for people who have an interest in the proceedings (including the level at which they are seated and the people in the complainant’s line of vision).(4) If, to enable evidence to be given as referred to in subsection (3), the court considers it appropriate to do so, the court may adjourn the proceeding or any part of the proceeding from the courtroom to another court or place.(5) Despite subsection (3) (a), a complainant must not give evidence as referred to in that paragraph if a court, on its own initiative or on application by a party to the proceeding, orders that such means not be used.(6) A court may make an order under subsection (5) only if it is satisfied that there are special reasons, in the interests of justice, for the complainant’s evidence not to be given by such means.(7) In any proceedings in which evidence is given as referred to in subsection (3), the judge must—(a) inform the jury that it is standard procedure for complainants’ evidence in such cases to be given by those means or use of those arrangements, and(b) warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because it is given by those means or by use of those arrangements.(8) Any place outside the courtroom from which a complainant gives evidence under this section is taken to be part of the courtroom in which the proceeding is being held.(9) If a complainant gives evidence as referred to in subsection (3) in a place other than a courtroom, the court may order that a court officer be present at that place.(10) This section extends to evidence given in proceedings instituted before the commencement of this section, including a new trial that was ordered to take place before that commencement and proceedings that have been partly heard.(11) (Repealed)Note—Part 3B of the Witness Protection Act 1995 provides for alternative arrangements for the giving of evidence by a person who is, or was, a participant in a witness protection program under that Act.s 294B: Ins 2004 No 50, Sch 1. Am 2005 No 25, Sch 1 [14]–[17]; 2007 No 6, Sch 1 [9]; 2007 No 80, Sch 2.9 [4]; 2014 No 83, Sch 1 [22] [23]; 2019 No 20, Sch 1.10[11]; 2020 No 36, Sch 2[8].
294C Complainant entitled to have support person or persons present when giving evidence
(1) A complainant is entitled to have a person or persons chosen by the complainant present near the complainant, and within the complainant’s sight, when the complainant is giving evidence in proceedings in respect of a prescribed sexual offence.(2) The entitlement applies—(a) even if the complainant gives evidence by means of closed-circuit television or other technology or under any alternative arrangements available to the complainant under section 289V or 294B or Part 6, and(b) even if the proceedings, or the part of the proceedings in which the complainant gives evidence, are held in camera.(3) Without limiting the entitlement of a complainant under this section, the person or persons chosen by the complainant to be with the complainant when he or she gives evidence may include a parent, guardian, relative, friend or support person of the complainant, or a person assisting the complainant in a professional capacity.(4) An accused person is not entitled to object to the suitability of the person or persons chosen by a complainant to be with the complainant when giving evidence, and the court is not to disallow the complainant’s choice of person or persons on its own motion, unless the complainant’s choice is likely to prejudice the accused person’s right to a fair trial (for example, because the person chosen by the complainant is a witness or potential witness in the proceedings).(5) During any part of the proceedings in which the complainant gives evidence, the person or persons chosen by the complainant to be present when the complainant gives evidence are taken to be exempt from any requirement or direction under this Division that requires the proceedings, or the part of the proceedings concerned, to be held in camera.(6) This section applies to a complainant giving evidence in proceedings in respect of a prescribed sexual offence regardless of the complainant’s age.(7) If the complainant is a vulnerable person when the evidence is given, section 306ZK operates in addition to this section.(8) Nothing in this section affects any entitlement a complainant has under section 275B.Note—This section applies to proceedings before the Children’s Court because of section 27 of the Children (Criminal Proceedings) Act 1987.s 294C: Ins 2005 No 25, Sch 1 [18]. Am 2007 No 6, Sch 1 [10]–[12]; 2014 No 83, Sch 1 [24]; 2018 No 88, Sch 5 [10]; 2020 No 36, Sch 2[9].
294CA Admission of evidence of sexual offence witness given as complainant in earlier proceedings
(1) This section applies if a person who was a complainant in proceedings for a prescribed sexual offence (the earlier proceedings) is called as a sexual offence witness in later proceedings for a prescribed sexual offence (the current proceedings).(2) A prosecutor may tender as evidence in current proceedings a record of the evidence of the person given in the earlier proceedings (the original evidence).(3) The original evidence of the person means all evidence given by the person in the earlier proceedings, including the evidence given by the person on examination in chief in the earlier proceedings and any further evidence given on cross-examination or re-examination in those proceedings.(4) Despite anything to the contrary in the Evidence Act 1995, or any other Act or law, a record of the original evidence of the person is admissible in the current proceedings if—(a) the prosecutor gives written notice to the accused person, in accordance with the regulations, of the prosecutor’s intention to tender the record under this section, and(b) the prosecutor gives written notice to the court of the prosecutor’s intention to tender the record under this section, and(c) the notices referred to in paragraphs (a) and (b) are given no less than 21 days before the court commences hearing the current proceedings or within such other period as the court may allow.(5) If a record of original evidence is admitted in current proceedings under this section, the person is not compellable to give further evidence about the same matters in the current proceedings unless the court is satisfied that it is necessary for the person to give further evidence—(a) to clarify any matters relating to the original evidence of the person, or(b) to canvass information or material that has become available since the original evidence was given, or(c) in the interests of justice.(6) The court is to ensure that the person is questioned by any party to the current proceedings only in relation to matters that are relevant to the matters mentioned in subsection (5).(7) Subject to subsection (6), if a person gives any further evidence under this section, the person is compellable (for the prosecution or the accused person) to give evidence.(8) The court hearing the current proceedings may decline to admit a record of original evidence of a person if, in the court’s opinion, the accused person would be unfairly disadvantaged by the admission of the evidence, having regard to the following—(a) the completeness of the original evidence, including whether the person has been cross-examined on the evidence,(b) the effect of editing any inadmissible evidence from the original evidence,(c) the availability or willingness of the person to attend to give further evidence and to clarify any matters relating to the original evidence,(d) the interests of justice,(e) any other matter the court thinks relevant.(9) If the court allows a record of the original evidence of the person to be admitted, the court may give directions requiring the record to be altered or edited for the purpose of removing any statements that would not be admissible if the original evidence of the person had been given orally before the court hearing the current proceedings in accordance with the usual rules and practice of the court.(10) The hearsay rule (within the meaning of the Evidence Act 1995) does not prevent the admission of a record of the original evidence of the person under this section or the use of that record to prove the existence of a fact that the person intended to assert by a representation made in the original evidence.(11) Sections 306E–306G (including any regulations made for the purposes of those sections) apply for the purposes of this section with such modifications as are necessary.s 294CA: Ins 2018 No 88, Sch 5 [11].
294D Protections of Division extend to tendency witnesses
(1) In proceedings in respect of a prescribed sexual offence, this Division applies to a sexual offence witness in the proceedings in the same way as it applies to a complainant in the proceedings.(2) A sexual offence witness is any witness in the proceedings (other than the complainant) against whom any of the following is alleged to have been committed by the accused person—(a) a prescribed sexual offence, or(b) acts that would constitute a prescribed sexual offence were those acts to occur in this State at the time of the commencement of the proceedings.(2A) (Repealed)(3) Accordingly, in this Division a reference to a complainant includes a reference to a sexual offence witness and a reference to a prescribed sexual offence, in relation to a sexual offence witness, includes a reference to an act referred to in subsection (2) (b).(4) In addition, the court may make an order directing that the identity of a sexual offence witness is not to be publicly disclosed.(5) If the court makes such an order, the sexual offence witness is taken to be a complainant for the purposes of section 578A of the Crimes Act 1900 and that section applies accordingly.Note—Section 578A of the Crimes Act 1900 prohibits the publication of any matter which identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant.(6) A witness is to be treated as a sexual offence witness, even if the witness has not yet given evidence in the proceedings, if the court is satisfied that the prosecutor has given notice to the accused person that the prosecutor intends to adduce evidence that the accused person committed an offence or act referred to in subsection (2) (a) or (b) against the witness.s 294D: Ins 2010 No 9, Sch 2 [6]. Am 2010 No 135, Sch 12.1 [1] [2]; 2013 No 90, Sch 1.5.
Division 2 Sexual assault communications privilege
ch 6, pt 5, div 2, hdg: Ins 2001 No 119, Sch 1 [125].
295 Interpretation
(1) Definitions In this Division—criminal proceedings means—(a) proceedings relating to the trial or sentencing of a person for an offence (whether or not a sexual assault offence) including pre-trial and interlocutory proceedings but not preliminary criminal proceedings, or(b) proceedings relating to an order under the Crimes (Domestic and Personal Violence) Act 2007.harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear).preliminary criminal proceedings means any of the following—(a) committal proceedings,whether or not in relation to a sexual assault offence.(b) proceedings relating to bail (including proceedings during the trial or sentencing of a person),principal protected confider means the victim or alleged victim of a sexual assault offence by, to or about whom a protected confidence is made.protected confidence—see section 296.protected confider, in relation to a protected confidence, means—(a) the principal protected confider, or(b) any other person who made the protected confidence.sexual assault offence means—(a) a prescribed sexual offence, or(a1) acts that would constitute a prescribed sexual offence if those acts—(i) had occurred in this State, or(ii) had occurred at some later date, or(iii) had both occurred in this State and occurred at some later date, or(b) any other offence prescribed by the regulations for the purposes of this definition.(2) Document recording a protected confidence In this Division, a reference to a document recording a protected confidence—(a) is a reference to any part of the document that records a protected confidence or any report, observation, opinion, advice, recommendation or other matter that relates to the protected confidence made by a protected confider, and(b) includes a reference to any copy, reproduction or duplicate of that part of the document.(3) Electronic documents For the purposes of this Division, if a document recording a protected confidence is stored electronically and a written document recording the protected confidence could be created by use of equipment that is usually available for retrieving or collating such stored information, the document stored electronically is to be dealt with as if it were a written document so created.s 295 (previously s 147): Renumbered 2001 No 119, Sch 1 [126]. Am 2001 No 119, Sch 1 [127]–[129]; 2005 No 25, Sch 1 [19] [20]; 2008 No 114, Sch 2.8 [4]; 2010 No 135, Sch 12.1 [3] [4].
296 What is a protected confidence?
(1) In this Division—protected confidence means a counselling communication that is made by, to or about a victim or alleged victim of a sexual assault offence.(2) A counselling communication is a protected confidence for the purposes of this Division even if it—(a) was made before the acts constituting the relevant sexual assault offence occurred or are alleged to have occurred, or(b) was not made in connection with a sexual assault offence or alleged sexual assault offence or any condition arising from a sexual assault offence or alleged sexual assault offence.(3) For the purposes of this section, a communication may be made in confidence even if it is made in the presence of a third party if the third party is present to facilitate communication or to otherwise further the counselling process.(4) In this section—counselling communication means a communication—(a) made in confidence by a person (the counselled person) to another person (the counsellor) who is counselling the person in relation to any harm the person may have suffered, or(b) made in confidence to or about the counselled person by the counsellor in the course of that counselling, or(c) made in confidence about the counselled person by a counsellor or a parent, carer or other supportive person who is present to facilitate communication between the counselled person and the counsellor or to otherwise further the counselling process, or(d) made in confidence by or to the counsellor, by or to another counsellor or by or to a person who is counselling, or has at any time counselled, the person.(5) For the purposes of this section, a person counsels another person if—(a) the person has undertaken training or study or has experience that is relevant to the process of counselling persons who have suffered harm, and(b) the person—(i) listens to and gives verbal or other support or encouragement to the other person, orwhether or not for fee or reward.(ii) advises, gives therapy to or treats the other person,s 296 (previously s 148): Renumbered 2001 No 119, Sch 1 [126]. Am 2001 No 119, Sch 1 [129].
297 Protected confidences—preliminary criminal proceedings
(1) A person cannot seek to compel (whether by subpoena or any other procedure) any other person to produce a document recording a protected confidence in, or in connection with, any preliminary criminal proceedings.(2) A document recording a protected confidence cannot be produced in, or in connection with, any preliminary criminal proceedings.(3) Evidence cannot be adduced in any preliminary criminal proceedings if it would disclose a protected confidence or the contents of a document recording a protected confidence.s 297 (previously s 149): Renumbered 2001 No 119, Sch 1 [126]. Subst 2010 No 135, Sch 12.1 [5].
298 Protected confidences—criminal proceedings
(1) Except with the leave of the court, a person cannot seek to compel (whether by subpoena or any other procedure) any other person to produce a document recording a protected confidence in, or in connection with, any criminal proceedings.(2) Except with the leave of the court, a document recording a protected confidence cannot be produced in, or in connection with, any criminal proceedings.(3) Except with the leave of the court, evidence cannot be adduced in any criminal proceedings if it would disclose a protected confidence or the contents of a document recording a protected confidence.s 298 (previously s 150): Renumbered 2001 No 119, Sch 1 [126]. Am 2001 No 119, Sch 1 [129]. Subst 2010 No 135, Sch 12.1 [5].
298A Victim cannot be required to identify counsellor
(1) A person cannot seek to compel (whether by subpoena or any other procedure) a victim or alleged victim of a sexual assault offence to produce a document or give evidence that would disclose the identity of the victim or alleged victim’s counsellor in, or in connection with, criminal proceedings or preliminary criminal proceedings.(2) In this section—counsellor of a victim or alleged victim of a sexual assault offence means a counsellor (within the meaning of section 296 (4)) to whom or by whom a counselling communication that is a protected confidence is made.s 298A: Ins 2018 No 29, Sch 1.10 [15].
299 Court to inform of rights under Division
If it appears to a court that a witness, party or protected confider may have grounds for making an application under this Division or objecting to the production of a document or the adducing of evidence, the court must satisfy itself (or if there is a jury, in the absence of the jury) that the person is aware of the relevant provisions of this Division and has been given a reasonable opportunity to seek legal advice.s 299 (previously s 151): Renumbered 2001 No 119, Sch 1 [126]. Am 2001 No 119, Sch 1 [130]. Subst 2010 No 135, Sch 12.1 [5].
299A Protected confider has standing
A protected confider who is not a party may appear in criminal proceedings or preliminary criminal proceedings if a document is sought to be produced or evidence is sought to be adduced that may disclose a protected confidence made by, to or about the protected confider.s 299A: Ins 2010 No 135, Sch 12.1 [5].
299B Determining if there is a protected confidence
(1) If a question arises under this Division relating to a document or evidence, a court may consider the document or evidence.(2) If there is a jury, the document or evidence is to be considered in the absence of the jury.(3) A court must not make available or disclose to a party (other than a protected confider) any document or evidence to which this section applies (or the contents of any such document) unless—(a) the court determines that the document does not record a protected confidence or that the evidence would not disclose a protected confidence, or(b) a party has been given leave under this Division in relation to the document or evidence and making available or disclosing the document or evidence is consistent with that leave.(4) A court may make any orders it thinks fit to facilitate its consideration of a document or evidence under this section.(5) This section has effect despite sections 297 and 298.s 299B: Ins 2010 No 135, Sch 12.1 [5]. Am 2012 No 11, Sch 1.1 [11].
299C Notice of application for leave
(1) An applicant for leave under this Division must, as soon as is reasonably practicable, give notice in writing of the application to each other party and each relevant protected confider (or the protected confider’s nominee) that—(a) specifies the document that is sought to be produced or the evidence that is sought to be adduced, and(b) in the case of a notice to a protected confider who is not a party to the proceedings—advises the protected confider that the protected confider may appear in the proceedings concerned, and(c) in the case of an application for leave to compel (whether by subpoena or any other procedure) a person to produce a document—specifies the day on which the document is to be produced, and(d) in the case of an application for leave to adduce evidence—specifies the day (if known) when the proceedings are to be heard, and(e) includes any other matter that may be prescribed by the regulations.(2) A requirement to give notice to a protected confider who is not a party to proceedings is satisfied for the purposes of this section if the notice is given to—(a) the prosecutor in the criminal proceedings, or(b) if the regulations prescribe a different person or body, that person or body.(3) A prosecutor (or person or body) who is given a copy of a notice under subsection (2) must ensure that a copy of the notice is given to the protected confider within a reasonable time after its receipt.(4) A court cannot grant an application for leave under this Division until at least 14 days (or such shorter period as may be fixed by the court) after the relevant notices have been given under subsection (1) or (2).(5) A court may waive the requirement to give notice if—(a) notice has already been given in respect of an application under this Division, being an application that relates to the same protected confidence and the same criminal proceedings, or(b) the principal protected confider has consented in writing to the notice being waived, or(c) the court is satisfied that there are exceptional circumstances that require the notice to be waived.(6) The regulations may make provision for or with respect to the giving of notices under this section.s 299C: Ins 2010 No 135, Sch 12.1 [5].
299D Determining whether to grant leave
(1) The court cannot grant an application for leave under this Division unless the court is satisfied that—(a) the document or evidence will, either by itself or having regard to other documents or evidence produced or adduced or to be produced or adduced by the party seeking to produce or adduce the document or evidence, have substantial probative value, and(b) other documents or evidence concerning the matters to which the protected confidence relates are not available, and(c) the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm is substantially outweighed by the public interest in admitting into evidence information or the contents of a document of substantial probative value.(2) Without limiting the matters that the court may take into account for the purposes of determining the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm, the court must take into account the following—(a) the need to encourage victims of sexual offences to seek counselling,(b) that the effectiveness of counselling is likely to be dependent on the maintenance of the confidentiality of the counselling relationship,(c) the public interest in ensuring that victims of sexual offences receive effective counselling,(d) that the disclosure of the protected confidence is likely to damage or undermine the relationship between the counsellor and the counselled person,(e) whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias,(f) that the adducing of the evidence is likely to infringe a reasonable expectation of privacy.(3) For the purposes of determining an application for leave under this Division, the court may permit a confidential statement to be made to it by or on behalf of the principal protected confider by affidavit specifying the harm the confider is likely to suffer if the application for leave is granted.(4) A court must not disclose or make available to a party (other than the principal protected confider) any confidential statement made to the court under this section by or on behalf of the principal protected confider.(5) The court must state its reasons for granting or refusing to grant an application for leave under this Division.(6) If there is a jury, the court is to hear and determine any application for leave under this Division in the absence of the jury.s 299D: Ins 2010 No 135, Sch 12.1 [5].
300 Effect of consent
(1) This Division does not prevent the production of any document recording a protected confidence or the adducing of evidence disclosing a protected confidence or the contents of a document recording a protected confidence, in, or in connection with, any proceedings, if—(a) the principal protected confider to whom the proceedings relate has consented to the production of the document or adducing of the evidence, or(b) for a principal protected confider under 14 years of age—a person the court determines is a suitable person has consented to the production of the document or adducing of the evidence.(1A) For the purposes of subsection (1)(b), the court may determine that a person is a suitable person only if—(a) the person is not—(i) the accused person in the proceedings, or(ii) connected to the proceedings, and(b) the court considers the person is acting in the best interests of the principal protected confider, and(c) the court considers that determining the person is a suitable person would not—(i) damage the relationship between the suitable person and the principal protected confider, or(ii) cause undue embarrassment, humiliation or harm to the principal protected confider.(2) Consent is not effective for the purposes of this section unless—(a) the consent is given in writing, and(b) the consent expressly relates to the production of a document or adducing of evidence that is privileged under this Division or would be so privileged except for a limitation or restriction imposed by this Division.s 300 (previously s 152): Renumbered 2001 No 119, Sch 1 [126]. Am 2001 No 119, Sch 1 [129]; 2019 No 20, Sch 1.10[12] [13].
301 Loss of sexual assault communications privilege: misconduct
(1) This Division does not prevent the adducing of evidence of a communication made, or the production or adducing of a document prepared, in the furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty.(2) For the purposes of this section, if the commission of the fraud, offence or act is a fact in issue and there are reasonable grounds for finding that—(a) the fraud, offence or act was committed, andthe court may find that the communication was so made or document so prepared.(b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act,s 301 (previously s 153): Renumbered 2001 No 119, Sch 1 [126]. Am 2001 No 119, Sch 1 [129].
302 Ancillary orders
(1) Without limiting any action the court may take to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of evidence of, or the contents of a document recording, a protected confidence, the court may—(a) order that all or part of the evidence be heard or document produced in camera, and(b) make such orders relating to the production and inspection of the document as, in the opinion of the court, are necessary to protect the safety and welfare of any protected confider.(c), (d) (Repealed)(2) Nothing in this section limits the power of a court to make an order under section 106 or 119 of this Act or section 578A of the Crimes Act 1900.(3) (Repealed)s 302 (previously s 154): Renumbered 2001 No 119, Sch 1 [126]. Am 2010 No 106, Sch 2.3 [2] [3].
303, 304 (Repealed)
s 303: Renumbered 2001 No 119, Sch 1 [126]. Am 2001 No 119, Sch 1 [129]. Rep 2010 No 135, Sch 12.1 [6].
ss 304 (previously ss 155, 156): Renumbered 2001 No 119, Sch 1 [126]. Am 2001 No 119, Sch 1 [129]. Rep 2010 No 135, Sch 12.1 [6].
305 Inadmissibility of evidence
Evidence that, because of this Division, cannot be adduced or given in proceedings is not admissible in the proceedings.s 305 (previously s 157): Renumbered 2001 No 119, Sch 1 [126]. Am 2001 No 119, Sch 1 [129]. Am 2010 No 135, Sch 12.1 [7].
305A Subpoenas for production of counselling communications
The regulations may make provision for or with respect to the issue and service of subpoenas requiring the production of a document recording a counselling communication (within the meaning of section 296) in, or in connection with, any criminal proceedings or preliminary criminal proceedings, including the following—(a) the manner and time in which a subpoena must be served,(b) the form of a subpoena,(c) any documents or information that must be included with a subpoena.s 305A: Ins 2010 No 135, Sch 12.1 [8]. Am 2012 No 11, Sch 1.1 [12] [13].
306 Application of common law
(1) This Division does not affect the operation of a principle or rule of the common law in relation to evidence in criminal proceedings, except so far as this Division provides otherwise expressly or by necessary intendment.(2) Without limiting subsection (1), this Division does not affect the operation of such a principle or rule so far as it relates to the inspection of a document required to be produced in, or in connection with, criminal proceedings.s 306 (previously s 159): Renumbered 2001 No 119, Sch 1 [126]. Am 2001 No 119, Sch 1 [129].
Division 3 Special provisions relating to retrials of sexual offence proceedings
ch 6, pt 5, div 3: Ins 2005 No 15, Sch 1 [1].
306A Definitions
In this Division—accused person, in relation to any proceedings, means the person who stands, or any of the persons who stand, charged in those proceedings with a prescribed sexual offence.complainant, in relation to any proceedings, means the person, or any of the persons, against whom a prescribed sexual offence with which the accused person stands charged in those proceedings is alleged to have been committed, and includes—(a) in relation to an offence under section 80E of the Crimes Act 1900, the person who is alleged to have been the subject of sexual servitude, and(b) in relation to an offence under section 91D, 91E or 91F of the Crimes Act 1900, the person under the age of 18 years who is alleged to have participated in an act of child prostitution, and(c) in relation to an offence under section 91G of the Crimes Act 1900, the person under the age of 18 years who is alleged to have been used for the production of child abuse material.original evidence of the complainant or of any special witness has the meaning given by section 306B.special witness means any of the following witnesses in relation to the offence concerned—(a) a sexual offence witness,(b) a witness who is a cognitively impaired person,(c) a witness who is under the age of 18 years.s 306A: Ins 2005 No 15, Sch 1 [1]. Am 2005 No 25, Sch 1 [21]–[23]; 2010 No 9, Sch 2 [7]; 2018 No 88, Sch 5 [12]; 2019 No 20, Sch 1.10[9].
306B Admission of evidence of complainant or special witness in new trial proceedings
(1) If a person is convicted of a prescribed sexual offence and, on an appeal against the conviction, a new trial is ordered, the prosecutor may tender as evidence in the new trial proceedings a record of the original evidence of the complainant or a special witness.(2) For the purposes of this Division, the original evidence of the complainant or a special witness means all evidence given by the complainant or special witness in the proceedings from which the conviction arose (referred to in this Division as the original proceedings), including the evidence given by the complainant or special witness on examination in chief in the original proceedings and any further evidence given on cross-examination or re-examination in those proceedings.(3) Despite anything to the contrary in the Evidence Act 1995, or any other Act or law, a record of the original evidence of the complainant or a special witness is admissible in the new trial proceedings if—(a) the prosecutor gives written notice to the accused person, in accordance with the regulations, of the prosecutor’s intention to tender the record under this section, and(b) the prosecutor gives written notice to the court of the prosecutor’s intention to tender the record under this section, and(c) the notices referred to in paragraphs (a) and (b) are given no less than 21 days before the court commences hearing the new trial proceedings or within such other period as the court may allow.(4) The hearsay rule (within the meaning of the Evidence Act 1995) does not prevent the admission of a record of the original evidence of the complainant or a special witness under this Division or the use of that record to prove the existence of a fact that the complainant or special witness intended to assert by a representation made in the original evidence.(5) The court hearing the new trial proceedings does not have any discretion to decline to admit a record of the original evidence of the complainant or a special witness if it is admissible under this Division.(5A) If a record of original evidence of a special witness is admitted in new trial proceedings under this section, the special witness is not compellable to give further evidence about the same matters in the new trial proceeding unless the court is satisfied that it is necessary for the special witness to give further evidence—(a) to clarify any matters relating to the original evidence of the special witness, or(b) to canvass information or material that has become available since the original evidence was given, or(c) in the interests of justice.(5B) The court is to ensure that the special witness is questioned by any party to the new trial proceedings only in relation to matters that are relevant to the matters mentioned in subsection (5A).(5C) Subject to subsection (5B), if a special witness gives any further evidence under this section, the special witness is compellable (for the prosecution or the accused person) to give evidence.(5D) The court hearing the new trial proceedings may decline to admit a record of the original evidence of a special witness if, in the court’s opinion, the accused person would be unfairly disadvantaged by the admission of the record, having regard to the following—(a) the completeness of the original evidence, including whether the special witness has been cross-examined on the evidence,(b) the effect of editing any inadmissible evidence from the original evidence,(c) the availability or willingness of the special witness to attend to give further evidence and to clarify any matters relating to the original evidence,(d) the interests of justice,(e) any other matter the court thinks relevant.(6) However, the court may give directions requiring a record of the original evidence of the complainant or a special witness to be altered or edited for the purpose of removing any statements that would not be admissible if the original evidence of the complainant or a special witness had been given orally before the court hearing the new trial proceedings in accordance with the usual rules and practice of the court.(7) In addition, a record of the original evidence of the complainant or a special witness may be altered or edited in accordance with an agreement between the prosecutor and the accused person or his or her Australian legal practitioner (if any).(8) This Division applies in respect of proceedings for a new trial in which a person stands charged with a prescribed sexual offence whether or not the person stands charged with that offence alone or together with any other offence (as an additional or alternative count) and whether or not the person is liable, on the charge, to be found guilty of any other offence.(9) This Division extends to proceedings for a new trial ordered before the commencement of this Division, including new trial proceedings that have been commenced or partly heard.s 306B: Ins 2005 No 15, Sch 1 [1]. Am 2005 No 25, Sch 1 [24]; 2006 No 120, Sch 3.7 [9]; 2018 No 88, Sch 5 [13]–[16].
306C Complainant or special witness not compellable to give further evidence
If a record of the original evidence of the complainant or a special witness (or any part of the record) is admitted in proceedings under this Division, the complainant or special witness is not compellable to give any further evidence in the proceedings (despite anything to the contrary in this Act or the Evidence Act 1995), including for the purpose of any examination in chief, cross-examination or re-examination by or at the request of the accused person or his or her Australian legal practitioner.s 306C: Ins 2005 No 15, Sch 1 [1]. Am 2006 No 120, Sch 3.7 [9]; 2018 No 88, Sch 5 [13] [17].
306D Complainant or special witness may elect to give further evidence
(1) If a record of the original evidence of the complainant or a special witness (or any part of the record) is admitted in proceedings under this Division, the complainant or special witness may, with leave of the court hearing the proceedings, and only if the complainant or special witness so chooses, give further oral evidence in the proceedings.(2) The court is to give leave to the complainant or special witness to give such further evidence in the proceedings only if the court is satisfied, on application by one of the parties to the proceedings, that it is necessary for the complainant or special witness to give further oral evidence—(a) to clarify any matters relating to the original evidence of the complainant or special witness, or(b) to canvas information or material that has become available since the original proceedings, or(c) in the interests of justice.(3) The court is to ensure that the complainant or special witness is questioned by any party to the proceedings only in relation to matters that are relevant to the reasons for the grant of leave by the court.(4) Subject to subsection (3), if a complainant or special witness gives any further oral evidence under this section, the complainant or special witness is compellable (for the prosecution or the accused person) to give evidence. This applies despite section 306C.s 306D: Ins 2005 No 15, Sch 1 [1]. Am 2018 No 88, Sch 5 [13] [17]–[19].
306E Form in which record of original evidence of complainant or special witness is to be tendered
(1) A record of the original evidence of the complainant or a special witness tendered by the prosecutor under this Division must be the best available record, or be comprised of the best available records, of the original evidence of the complainant or special witness, and the record or records concerned must be properly authenticated.(2) For the purposes of this section, the best available record of the evidence, or any part of the evidence, given by a complainant or special witness is—(a) an audio visual recording of the evidence, or(b) if an audio visual recording of the evidence is not available, an audio recording of the evidence, or(c) if neither an audio visual recording nor an audio recording of the evidence is available, a transcript of the evidence.(3) If the whole or part of the evidence given by the complainant or special witness in the original proceedings was given in the form of a recording made by an investigating official, as provided for by Part 6, the best available record of that evidence is the recording viewed or heard by the court in those original proceedings.(4) A record of any evidence given by a complainant or special witness is properly authenticated for the purposes of this section if—(a) the record has been authenticated by the court before which the evidence concerned was given or by the registrar or other proper officer of that court in accordance with any directions of the court, or(b) the record has been authenticated by the person or body responsible for producing the record, or(c) the record has been authenticated in any other manner prescribed by the regulations.s 306E: Ins 2005 No 15, Sch 1 [1]. Am 2007 No 6, Sch 1 [5]; 2018 No 88, Sch 5 [19]–[21].
306F Access to audio visual or audio recording
(1) If a record of the original evidence of the complainant or a special witness tendered or proposed to be tendered by the prosecutor under this Division is an audio visual recording or audio recording, the accused person, and his or her Australian legal practitioner (if any), are not entitled to be given possession of the record or a copy of it (despite anything to the contrary in this Act or the Evidence Act 1995).(2) However, the accused person and his or her Australian legal practitioner (if any) are to be given reasonable access to the recording to enable them to listen to it and, if the record is an audio visual recording, view it.(3) This may require access to be given on more than one occasion.(4) The regulations may make provision for the procedures to be followed in connection with the giving of access under this section, and may provide for the giving of access to other persons assisting the accused person or his or her Australian legal practitioner.s 306F: Ins 2005 No 15, Sch 1 [1]. Am 2006 No 120, Sch 3.7 [9]; 2018 No 88, Sch 5 [13].
306G Exhibits may also be tendered
(1) If a record of the original evidence of a complainant or a special witness is tendered by the prosecutor under this Division, any exhibits tendered in the original proceedings on the basis of the original evidence of the complainant or special witness and admitted in the original proceedings are also admissible in the new trial proceedings as if the original evidence of the complainant or special witness had been given orally before the court hearing the new trial proceedings in accordance with the usual rules and practice of the court.(2) This section does not prevent any other exhibits tendered in the original proceedings from being tendered and admitted in the new trial proceedings in accordance with the usual rules and practice of the court hearing the new trial proceedings.s 306G: Ins 2005 No 15, Sch 1 [1]. Am 2018 No 88, Sch 5 [22] [23].
Division 4 Special provisions relating to subsequent trials of sexual offence proceedings
Note—
Division 3 of this Part applies in relation to a retrial of proceedings that follows an appeal against a conviction for a prescribed sexual offence. This Division, on the other hand, applies when a trial for a prescribed sexual offence has been discontinued and a new trial is listed.
ch 6, pt 5, div 4: Ins 2006 No 88, Sch 1 [10].
306H Definitions
In this Division—accused person has the same meaning as in section 306A.complainant has the same meaning as in section 306A.original evidence of the complainant or a special witness has the meaning given by section 306I.special witness has the same meaning as in section 306A.s 306H: Ins 2006 No 88, Sch 1 [10]. Am 2018 No 88, Sch 5 [24]; 2019 No 20, Sch 1.10[9].
306I Admission of evidence of complainant or special witness in new trial proceedings
(1) If the trial of an accused person is discontinued following the jury being discharged because the jurors could not reach a verdict, or discontinued for any other reason, and, as a result, a new trial is listed, the prosecutor may tender as evidence in the new trial proceedings a record of the original evidence of the complainant or a special witness.(2) For the purposes of this Division, the original evidence of the complainant or a special witness means all evidence given by the complainant or special witness in the discontinued trial (referred to in this Division as the original proceedings), including the evidence given by the complainant or special witness on examination in chief in the original proceedings and any further evidence given on cross-examination or re-examination in those proceedings.(3) Despite anything to the contrary in the Evidence Act 1995, or any other Act or law, a record of the original evidence of the complainant or a special witness is admissible in the new trial proceedings if—(a) the prosecutor gives written notice to the accused person, in accordance with the regulations, of the prosecutor’s intention to tender the record under this section, and(b) the prosecutor gives written notice to the court of the prosecutor’s intention to tender the record under this section, and(c) the notices referred to in paragraphs (a) and (b) are given no less than 21 days before the court commences hearing the new trial proceedings or within such other period as the court may allow.(4) The hearsay rule (within the meaning of the Evidence Act 1995) does not prevent the admission of a record of the original evidence of the complainant or a special witness under this Division or the use of that record to prove the existence of a fact that the complainant or special witness intended to assert by a representation made in the original evidence.(5) Despite subsection (3), the court hearing the new trial proceedings may decline to admit a record of the original evidence of the complainant or a special witness if, in the court’s opinion, the accused would be unfairly disadvantaged by the admission of the record, having regard to the following—(a) the completeness of the original evidence, including whether the complainant or special witness has been cross-examined on the evidence,(b) the effect of editing any inadmissible evidence from the original evidence,(c) the availability or willingness of the complainant or special witness to attend to give further evidence and to clarify any matters relating to the original evidence,(d) the interests of justice,(e) any other matter the court thinks relevant.(6) If the court allows a record of the original evidence of the complainant or a special witness to be admitted, the court may give directions requiring the record to be altered or edited for the purpose of removing any statements that would not be admissible if the original evidence of the complainant or special witness had been given orally before the court hearing the new trial proceedings in accordance with the usual rules and practice of the court.(7) In addition, a record of the original evidence of the complainant or a special witness may be altered or edited in accordance with an agreement between the prosecutor and the accused person or his or her counsel (if any).(8) This Division applies in respect of proceedings for a new trial in which a person stands charged with a prescribed sexual offence whether or not the person stands charged with that offence alone or together with any other offence (as an additional or alternative count) and whether or not the person is liable, on the charge, to be found guilty of any other offence.(9) This Division extends to proceedings for a new trial listed before the commencement of this Division, including new trial proceedings that have been commenced or partly heard.s 306I: Ins 2006 No 88, Sch 1 [10]. Am 2018 No 88, Sch 5 [13]–[15] [19]–[21].
306J Whether complainant or special witness compellable to give further evidence
(1) If a record of the original evidence of the complainant or a special witness (or any part of the record) is admitted in proceedings under this Division, the complainant or special witness is not compellable to give further evidence in the proceedings unless the court is satisfied that it is necessary for the complainant or special witness to give further evidence—(a) to clarify any matters relating to the original evidence of the complainant or special witness, or(b) to canvas information or material that has become available since the original proceedings, or(c) in the interests of justice.(2) Subsection (1) applies despite anything to the contrary in this Act or the Evidence Act 1995.(3) The court is to ensure that the complainant or special witness is questioned by any party to the proceedings only in relation to matters that are relevant to the matters mentioned in subsection (1).(4) Subject to subsection (3), if a complainant or special witness gives any further oral evidence under this section, the complainant or special witness is compellable (for the prosecution or the accused person) to give evidence.s 306J: Ins 2006 No 88, Sch 1 [10]. Am 2018 No 88, Sch 5 [17] [19] [20] [25].
306K Complainant or special witness may elect to give further evidence
(1) If a record of the original evidence of the complainant or a special witness (or any part of the record) is admitted in proceedings under this Division, the complainant or special witness may, with leave of the court hearing the proceedings, and only if the complainant or special witness so chooses, give further oral evidence in the proceedings.(2) The court is to give leave to the complainant or special witness to give such further evidence in the proceedings only if the court is satisfied, on application by one of the parties to the proceedings, that it is necessary for the complainant or special witness to give further oral evidence—(a) to clarify any matters relating to the original evidence of the complainant or special witness, or(b) to canvas information or material that has become available since the original proceedings, or(c) in the interests of justice.(3) The court is to ensure that the complainant or special witness is questioned by any party to the proceedings only in relation to matters that are relevant to the reasons for the grant of leave by the court.(4) Subject to subsection (3), if a complainant or special witness gives any further oral evidence under this section, the complainant or special witness is compellable (for the prosecution or the accused person) to give evidence.s 306K: Ins 2006 No 88, Sch 1 [10]. Am 2018 No 88, Sch 5 [13] [17]–[19] [25] [26].
306L Application of provisions dealing with form of record of original evidence, access to recordings and exhibits
Sections 306E–306G (including any regulations made for the purposes of those sections) apply for the purposes of this Division with such modifications as are necessary.s 306L: Ins 2006 No 88, Sch 1 [10].
Part 6 Giving of evidence by vulnerable persons
ch 6, pt 6: Ins 2007 No 6, Sch 1 [13].
Division 1 Preliminary
ch 6, pt 6, div 1: Ins 2007 No 6, Sch 1 [13].
306M Definitions
(1) In this Part—child protection prohibition order means a prohibition order within the meaning of the Child Protection (Offenders Prohibition Orders) Act 2004, and includes an interim child protection prohibition order made under that Act.cognitively impaired person means a person who has a cognitive impairment.court, in relation to a proceeding referred to in section 306ZA (d), includes the Civil and Administrative Tribunal.courtroom, in relation to a proceeding referred to in section 306ZA (d), includes the place where the Civil and Administrative Tribunal is sitting.investigating official means—(a) a police officer (other than a police officer who is engaged in covert investigations), or(b) in relation to the questioning of a child—a person who is engaged, in conjunction with an investigating official described in paragraph (a), in an investigation caused to be made by the Secretary of the Department of Family and Community Services under the Children and Young Persons (Care and Protection) Act 1998 or caused to be made under child protection legislation of another State or a Territory, or(c) any other person prescribed by the regulations for the purposes of this definition.personal assault offence means any of the following offences—(a) an offence under Part 3 of the Crimes Act 1900,(b) an offence under section 545AB or 562AB of the Crimes Act 1900,(c) an offence under section 562ZG, or section 562I as in force before its substitution, of the Crimes Act 1900,(d) an offence under section 227 of the Children and Young Persons (Care and Protection) Act 1998,(d1) an offence under section 13 or 14 of the Crimes (Domestic and Personal Violence) Act 2007,(e) an offence that includes the commission of, or an intention to commit, any of the above offences,(f) an offence of attempting, or of conspiracy or incitement, to commit any of the above offences.police officer means—(a) a member of the Australian Federal Police, or(b) a member of the police force of a State or Territory.recording means—(a) an audio recording, or(b) a video recording, or(c) a video recording accompanied by a separately but contemporaneously recorded audio recording.vulnerable person means a child or a cognitively impaired person.(2) For the purposes of this Part, a cognitive impairment includes any of the following—(a) an intellectual disability,(b) a developmental disorder (including an autistic spectrum disorder),(c) a neurological disorder,(d) dementia,(e) a severe mental illness,(f) a brain injury.Note—See section 306P as to the application of this Part to the giving of evidence by cognitively impaired persons.s 306M: Ins 2007 No 6, Sch 1 [13]. Am 2008 No 74, Sch 2 [4]–[7]; 2013 No 80, Sch 5; 2013 No 95, Sch 10.4 [1]; 2016 No 54, Sch 1.7 [4]; 2018 No 87, Sch 1.15 [10].
306N Words and expressions used in Evidence Act 1995
(1) Words and expressions that are defined in the Evidence Act 1995 and that are used in this Part have the same meanings in this Part as they have in the Evidence Act 1995.(2) This section applies except so far as the context or subject-matter otherwise indicates or requires.(3) However, this section does not apply to a word or expression defined in section 306M.s 306N: Ins 2007 No 6, Sch 1 [13].
306O Relationship to Evidence Act 1995
The provisions of this Part are in addition to the provisions of the Evidence Act 1995 and do not, unless a contrary intention is shown, affect the operation of that Act.s 306O: Ins 2007 No 6, Sch 1 [13].
306P Application of Part
(1) To the extent that this Part applies to children, this Part applies (unless a contrary intention is shown) in relation to evidence given by a child who is under the age of 16 years at the time the evidence is given.(2) To the extent that this Part applies to cognitively impaired persons, this Part applies (unless a contrary intention is shown) in relation to evidence given by a cognitively impaired person in the manner provided by this Part only if the court is satisfied that the facts of the case may be better ascertained if the person’s evidence is given in such a manner.s 306P: Ins 2007 No 6, Sch 1 [13]. Am 2008 No 74, Sch 2 [8] [9].
Division 2 Recording of out of court statements
ch 6, pt 6, div 2: Ins 2007 No 6, Sch 1 [13].
306Q Regulations may require interviews with vulnerable persons to be recorded
(1) If the regulations so require, an investigating official who questions a vulnerable person in connection with the investigation of the commission or possible commission of an offence by the person or any other person is, in accordance with any such regulations, to record any representation made by the vulnerable person in the course of the interview during which the vulnerable person is questioned.(2) In this section, investigating official does not include—(a) a member of the Australian Federal Police, or(b) a member of the police force of another State or Territory, or(c) an investigating official of another State or a Territory acting under child protection legislation of the other State or Territory.s 306Q: Ins 2007 No 6, Sch 1 [13]. Am 2016 No 54, Sch 1.7 [5]; 2018 No 87, Sch 1.15 [11].
Division 3 Giving evidence of out of court representations
ch 6, pt 6, div 3: Ins 2007 No 6, Sch 1 [13].
306R Evidence to which this Division applies
(1) This Division applies to evidence of a previous representation of a vulnerable person made in the course of an interview during which the person is questioned by an investigating official in connection with the investigation of the commission or possible commission of an offence.(2) To the extent that this Division applies to cognitively impaired persons, this Division does not apply to evidence of a previous representation made before the commencement of this Division.s 306R: Ins 2007 No 6, Sch 1 [13]. Am 2008 No 74, Sch 2 [10].
306S Ways in which evidence of vulnerable person may be given
(1) Subject to this Part, a vulnerable person may give evidence of a previous representation to which this Division applies made by the person in any criminal proceeding wholly or partly—(a) in the form of a recording of the previous representation made by an investigating official of the interview in the course of which the previous representation was made and that is viewed or heard, or both, by the court, or(b) orally in the courtroom, or(c) if the evidence is given in any proceeding to which Division 4 applies—in accordance with alternative arrangements made under section 306W.Note—See section 306ZA.(2) Evidence in the form of a recording given by a vulnerable person under subsection (1) (a) is not required to be served on a party to any proceeding (including proceedings in relation to apprehended violence commenced under the Crimes (Domestic and Personal Violence) Act 2007).(3) Nothing in this section affects the giving of evidence by means of a written statement for the purposes of Division 3 of Part 2 of Chapter 3.Note—See also section 306ZN.s 306S: Ins 2007 No 6, Sch 1 [13]. Am 2008 No 114, Sch 2.8 [1].
306T Wishes of vulnerable person to be taken into account
(1) A person must not call a vulnerable person to give evidence of a previous representation to which this Division applies made by the vulnerable person by means other than a recording made by an investigating official of the interview in the course of which the previous representation was made unless the person has taken into account any wishes of the vulnerable person, considered in the light of—(a) in the case of a child—the child’s age and understanding, or(b) in the case of a cognitively impaired person—the person’s cognitive impairment.(2) However, subsection (1) does not permit a person to require a vulnerable person to express the vulnerable person’s wishes in relation to the matter.s 306T: Ins 2007 No 6, Sch 1 [13]. Am 2008 No 74, Sch 2 [11].
306U Vulnerable person entitled to give evidence in chief in form of recording
(1) A vulnerable person is entitled to give, and may give, evidence in chief of a previous representation to which this Division applies made by the person wholly or partly in the form of a recording made by an investigating official of the interview in the course of which the previous representation was made and that is viewed or heard, or both, by the court. The vulnerable person must not, unless the person otherwise chooses, be present in the court, or be visible or audible to the court by closed-circuit television or by means of any similar technology, while it is viewing or hearing the recording.(2) Subject to section 306Y, a person is entitled to give, and may give (no matter what age the person is when the evidence is given), evidence as referred to in subsection (1) in the form of a recording of a previous representation to which this Division applies made by the person when the person was less than 16 years of age.Note—Under section 306Y, a court may order that a vulnerable person not give evidence in the form of a recording if it is satisfied that it is not in the interests of justice for the evidence to be given by a recording.(3) If a vulnerable person who gives evidence as referred to in subsection (1) is not the accused person in the proceeding, the vulnerable person must subsequently be available for cross-examination and re-examination—(a) orally in the courtroom, or(b) if the evidence is given in any proceeding to which Division 4 applies—in accordance with alternative arrangements made under section 306W.(4) Subsection (3) does not apply in relation to committal proceedings.(5) Section 5BA of the Evidence (Audio and Audio Visual Links) Act 1998 does not apply to evidence given as referred to in subsection (1).s 306U: Ins 2007 No 6, Sch 1 [13]. Am 2007 No 75, Sch 2.3.
306V Admissibility of recorded evidence
(1) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent the admission or use of evidence of a previous representation to which this Division applies given by a vulnerable person under this Division in the form of a recording made by an investigating official.(2) Evidence of a previous representation to which this Division applies of a vulnerable person who is not the accused person in a proceeding that is given by the vulnerable person in the form of a recording made by an investigating official is not to be admitted unless it is proved that the accused person and his or her Australian legal practitioner (if any) were given, in accordance with the regulations, a reasonable opportunity to listen to and, in the case of a video recording, view the recording.(3) However, if the requirements of any regulations made under subsection (2) have not been complied with, the recording may be admitted if the court is satisfied that—(a) the parties consent to the recording being admitted, or(b) the accused person and his or her Australian legal practitioner (if any) have been given a reasonable opportunity otherwise than in accordance with such regulations to listen to or view the recording and it would be in the interests of justice to admit the recording.(4) The court may rule as inadmissible the whole or any part of the contents of a recording adduced as evidence under this Division.s 306V: Ins 2007 No 6, Sch 1 [13]. Am 2009 No 56, Sch 3.3 [1].
306W Alternative arrangements for giving evidence
The court may order that alternative arrangements be made in accordance with Division 4 for the giving of evidence by the vulnerable person in any proceeding to which that Division applies.ss 306W–306Z: Ins 2007 No 6, Sch 1 [13].
306X Warning to jury
If a vulnerable person gives evidence of a previous representation wholly or partly in the form of a recording made by an investigating official in accordance with