Criminal Procedure Act 1921

This

Act may be cited as the Criminal

Procedure Act 1921.

In this Act, unless inconsistent with the context—

answer charge hearing—see section 109;

case statement means a defence case statement or a prosecution case statement;

the

Chief Magistrate means the person for the time being holding, or acting in, the office of the Chief Magistrate under the Magistrates

Act 1983;

cognitive impairment includes—

a developmental disability (including, for example, an intellectual disability, Down syndrome, cerebral palsy or an autistic spectrum disorder);

an acquired disability as a result of illness or injury (including, for

example, dementia, a traumatic brain injury or a neurological disorder);

a mental illness;

defence case statement—see section 123;

defendant means person charged with any offence or against whom relief is sought or granted;

foreign restraining order means an order made under a law of another State or a Territory of the Commonwealth or New Zealand declared by regulation to be a law corresponding to Division

7 of Part 4;

investigating officer means—

an officer of the police force; or

a person authorised under an Act to investigate offences;

major indictable offence means any indictable offence except a minor indictable offence;

minor indictable offence—see section 5;

offence of violence means an offence where the offender—

uses a weapon, or threatens to use a weapon, against another; or

inflicts serious harm on another, or threatens to inflict serious harm on another, for the purpose of committing the offence, or escaping from the scene of the offence;

personal service—see subsection (3)(a);

the

Principal Registrar means the Principal Registrar of the Magistrates Court;

prosecution case statement—see section 123;

Registrar means the Principal Registrar or any other Registrar of the

Magistrates Court;

restraining order means an order made under Division

7 of Part 4;

rules means the rules of the Magistrates Court;

sensitive material—see section 67H of the Evidence

Act 1929;

sensitive material notice—see section 67I of the Evidence

Act 1929;

sentencing law means the Criminal

Law (Sentencing) Act 1988 or an Act enacted in substitution for that Act;

sexual offence means an offence under the Criminal

Law Consolidation Act 1935 of the following kind:

rape;

or

compelled sexual manipulation; or

indecent assault; or

persistent sexual exploitation of a child or persistent sexual abuse of a child; or

any offence involving unlawful sexual intercourse or an act of gross indecency; or

an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal

Law Consolidation Act 1935;

or

incest;

or

any attempt to commit or assault with intent to commit, any of the foregoing offences;

Special

Act means statute, rule, regulation, or by-law authorising the making of the conviction or order, or the determination or adjudication in question, or otherwise specially applicable to the case;

summary offence—see section 5;

telephone includes any telecommunication device.

A reference in the provisions of this Act other than Part

7 to a solicitor shall be deemed to include a reference to a law clerk articled to the solicitor and appearing on the solicitor's instructions.

Subject to the rules, for the purposes of this Act, unless the contrary intention appears—

a reference to a summons, notice or other document, or documentary material, being served personally includes service by means described in section 27(1)(a) and (b); and

a reference to a summons, notice or other document, or documentary material, being served by post includes service by means described in section 27(1)(c),

.

Offences are divided into the following classes:

summary offences;

indictable offences—comprising minor indictable offences and major indictable offences.

A summary offence is—

an offence that is not punishable by imprisonment;

an offence for which a maximum penalty of, or including, imprisonment for two years or less is prescribed;

an offence against Part 4 of the Criminal

Law Consolidation Act 1935 involving $2 500 or less not being—

an offence of arson or causing a bushfire; or

Note—

See sections 85 and 85B of the Criminal

Law Consolidation Act 1935.

an offence of violence; or

an offence that is 1 of a series of offences of the same or a similar character involving more than $2 500 in aggregate;

an offence against Part 5 of the Criminal

Law Consolidation Act 1935 involving $2 500 or less not being—

an offence against Division 3 of that Part (robbery); or

an offence of violence; or

an offence that is one of a series of offences of the same or a similar character involving more than $2 500 in aggregate, but an offence for which a maximum fine exceeding twice a Division 1 fine is prescribed is not a summary offence.

All offences apart from summary offences are indictable and of these—

the following are minor indictable offences:

those not punishable by imprisonment but for which a maximum fine exceeding twice a Division 1 fine is prescribed;

those for which the maximum term of imprisonment does not exceed 5 years;

those for which the maximum term of imprisonment exceeds 5 years and which fall into one of the following categories:

an offence involving interference with, damage to or destruction of property where the loss resulting from commission of the offence does not exceed $30 000;

an offence involving a threat to interfere with, damage or destroy another person's property where, if the threat had been carried out, the loss would not have exceeded $30 000;

an offence against section 24(2) of the Criminal

Law Consolidation Act 1935 (recklessly causing harm to another);

an offence against section 56 of the Criminal

Law Consolidation Act 1935 (indecent assault) (not being an offence committed against a child under the age of 14 years);

an offence involving $30 000 or less against Part 5 of the

Criminal

Law Consolidation Act 1935, other than an offence against Division 3 (robbery) or an offence of violence;

an offence against section 169(1) or 170(1) of the Criminal

Law Consolidation Act 1935 (serious criminal trespass etc) where the offence is a basic offence within the meaning of that Act and the intended offence is an offence of dishonesty (not being an offence of violence) involving

$30 000 or less or an offence of interference with, damage to or destruction of property involving $30 000 or less; and

all other indictable offences are major indictable offences.

For the purposes of the above classifications, an offence against section 85 or Part 5 of the Criminal

Law Consolidation Act 1935 includes—

an offence of attempting to commit such an offence; or

an offence of aiding, abetting, counselling or procuring such an offence; or

an offence of conspiring to commit such an offence; or

an offence of being an accessory after the fact to such an offence.

For the purposes of the above classifications, an offence will be taken to involve a particular sum of money if that sum represents—

the amount or value of the benefit that the offender would have gained through commission of the offence; or

the amount of the loss that would have resulted from commission of the offence, assuming that the offence had been successfully completed and the offender had escaped detection.

If a law prescribes differential maximum penalties, then for the purposes of classifying the offence in accordance with the above rules, it will be taken to create separate offences which are (where necessary) to be separately classified in accordance with the above rules.

Where an offence may be either a summary offence or an indictable offence according to the circumstances surrounding its commission, or the antecedents of the defendant, and the offence is designated as a summary offence in the information charging the offence, then, subject to subsection (8), the circumstances and the defendant's antecedents will be conclusively presumed to be such as to make the offence a summary offence.

Where an offence may be either a minor indictable offence or a major indictable offence according to the circumstances surrounding its commission, or the antecedents of the defendant, and the offence is classified as a minor indictable offence in the information charging the offence, then, subject to subsection (8), the circumstances and the defendant's antecedents will be conclusively presumed to be such as to make the offence a minor indictable offence.

A defendant may, in accordance with the rules, challenge the classification of an offence in the information charging the offence and for the purposes of such a challenge the above presumptions do not apply.

Where a summary offence is erroneously dealt with as an indictable offence or a minor indictable offence is erroneously dealt with as a major indictable offence, the proceedings are not invalid but any penalties imposed should conform with what would be appropriate if the offence had been correctly classified at the inception of the proceedings.

If the Act under which an offence is created classifies an offence in a manner inconsistent with this section, that classification prevails.

The authority and jurisdiction by this Act vested in the Supreme Court may, subject to any rules or orders of such Court in relation thereto, be exercised by a Judge of such Court sitting in court or in chambers.

A court is not prevented from trying an offence by reason of the fact that the trial involves a dispute as to the title to property.

Every warrant for the apprehension of a defendant shall—

state shortly the matter of the information upon which it is founded; and

name or otherwise describe the defendant; and

order the person or persons to whom it is directed to apprehend the defendant and bring him before the Magistrates Court to answer the charge contained in the information, and to be further dealt with according to law.

The warrant may be directed specially to any constable or other person by name, or generally to all constables and peace officers of the

State, or both specially and generally as aforesaid; and where the warrant is directed generally it shall be lawful for any constable or other peace officer to execute such warrant in like manner as if the same had been specially directed to him by name.

It shall not be necessary to make the warrant returnable at any particular time, but the same shall remain in force until it is executed.

Every warrant may be executed by apprehending the defendant at any place within the State.

The

Magistrates Court may make rules to provide for summonses for the appearance of persons before the Court, including to provide for the manner in which, and by whom, the summons is to be issued, given, sent to, or served, on the person.

Without limiting the generality of subsection (1), a summons for the appearance of a person—

must be in a form prescribed by the rules; and

must be directed to the person; and

must state in brief the matter or matters in relation to which the person is charged or is to be charged; and

must require the person to appear before the Magistrates Court at a specified time and place to answer to the charge and to be dealt with according to law; and

may include any other information that is, in the opinion of the Court, necessary or expedient for the purposes of this Act or any other Act or law.

Every information, summons, warrant, or other document under this Act in which it is necessary to state the matter charged against any person shall be sufficient if it contains a statement of the specific offence with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge.

The statement of the offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and, if the offence charged is one created by statute, shall contain a reference to the section of the statute creating the offence.

After the statement of the offence, necessary particulars of the offence shall be set out in ordinary language, in which the use of technical terms shall not be required.

Subject to this Act or any other Act, and the regulations or the rules, a summons, notice or other document required or authorised to be issued, given or sent to, or served on, a person under this Act may—

be given personally to the person; or

be left for the person at the person's last known residential, business or (in the case of a body corporate) registered address with someone apparently over the age of 16 years; or

be posted in an envelope addressed to the person at the person's last known residential, business or (in the case of a body corporate) registered address (in which case the summons, notice or other document will be taken to have been served at the time when it would, in the ordinary course of post, have reached the address to which it was posted); or

for the purpose of particular proceedings—be transmitted by fax or email to a fax number or email address provided by the person or a legal practitioner representing the person (in which case the summons, notice or other document will be taken to have been given or served at the time of transmission); or

for the purpose of particular proceedings—be made available to the person by some other electronic means, including (for example)—

by transmission to an Internet address provided by the person or a legal practitioner representing the person (in which case the summons, notice or other document will be taken to have been given or served at the time of transmission); or

by means of providing (by means of an email transmitted to an email address provided by the person or a legal practitioner representing the person) a link to an Internet address from which the person or legal practitioner may access or download the summons, notice or other document (in which case the summons, notice or other document will be taken to have been given or served at the time of transmission of the email); or

by means of a data storage device from which the summons, notice or other document can be accessed or downloaded—

being given personally to the person or a legal practitioner representing the person (in which case the summons, notice or other document will be taken to have been given or served at the time the data storage device is given to the person or legal practitioner, as the case may be); or

being left for the person or a legal practitioner representing the person—

• at the person's last known residential, business or (in the case of a body corporate) registered address with someone apparently over the age of 16 years; or

• at the last known business address of the legal practitioner representing the person with someone apparently over the age of

16 years, (in which case the summons, notice or other document will be taken to have been given or served at the time the data storage device is so left); or

being sent by registered post in an envelope—

• addressed to the person at the person's last known residential, business or (in the case of a body corporate) registered address; or

• addressed to a legal practitioner representing the person at the legal practitioner's business address, (in which case the summons, notice or other document will be taken to have been given or served at the time when proof of receipt is given on delivery of the envelope to the address to which it was posted).

A summons, notice or other document required or authorised to be given or sent to, or served on, a person under this Act may only be given or sent to, or served on, the person by means referred to in subsection (1)(d) or (e) if, before so doing, it has been ascertained that the person or legal practitioner will be readily able to access or download and (if required) print, the summons, notice or other document.

Without limiting the generality of paragraph (e) of subsection (1), the regulations or the rules may prescribe electronic means of service other than those referred to in that paragraph for the purposes of this Act.

Without limiting the effect of the preceding subsections, a summons, notice or other document required or authorised to be given or sent to, or served on, a person by this Act may, if the person is a company or registered body within the meaning of the Corporations

Act 2001 of the Commonwealth, be served on the person in accordance with that

Act.

If a summons, notice or other document is given or sent to, or served, otherwise than by being given personally to the person to whom it is to be given or sent, or on whom it is to be served, the Magistrates

Court may require the summons, notice or other document to again be given or sent to, or re‑served on, the person if there is reasonable cause to believe that the summons, notice or other document has not come to the notice of the person.

If—

an information and summons in the form required by the rules under section 57A is served on the defendant named in the summons in accordance with the rules; and

the defendant fails to appear in obedience to the summons but pleads guilty in writing to the offence to which that summons relates, the

Magistrates Court may proceed to deal with the matter in the manner provided by sections 62B and 62C.

Subject to this section, if a summons is served in accordance with section 27 on the defendant named in the summons and—

either the defendant fails to appear in obedience to the summons; or

the defendant fails to plead guilty in the manner provided for under section 57A to the offence to which the summons relates, the

Magistrates Court may—

proceed in the absence of the defendant to the hearing of the information to which the summons relates (and, despite section 62C, adjudicate the matter as if the defendant had personally appeared in obedience to the summons); or

order that the information be heard in the absence of the defendant and adjourn the hearing (and, on the adjourned hearing, proceed in the manner provided for in paragraph (c)).

If a hearing is adjourned under subsection (1)(d), it is not necessary for the Magistrates Court to be constituted of the same judicial officer at the adjourned hearing.

On conviction after a hearing under subsection (1), the Magistrates Court must not—

impose any penalty other than a fine; or

disqualify the defendant from holding or obtaining a licence to drive a motor vehicle; or

treat the offence as other than a first offence unless the informant proves that the defendant has previously been convicted of such an offence; or

make an order for payment of compensation of an amount that exceeds an amount specified in the information, unless—

the summons was given personally to the defendant; or

—

the

Court has first adjourned the hearing of the information to a specified time and place; and

the defendant is personally served, not less than 14 days before the time to which the hearing has been adjourned, with a notice informing the defendant of—

the conviction; and

the time and place to which the hearing has been adjourned; and

the provisions of section 76A;

and

the defendant does not, within 14 days after the date of service of the notice on the defendant, apply in accordance with section 76A, for an order setting aside the conviction.

If a defendant, not being a defendant who has been personally served with a notice under subsection (3)(f), is convicted after a hearing under subsection (1), the Registrar must, within 7 days of that conviction, serve on the defendant a notice setting out the particulars of the conviction, the penalty imposed and section 76A.

If a defendant who has been personally served with a notice under subsection (3)(f) is convicted after a hearing under subsection (1), the Registrar must, within 7 days after the imposition of a penalty in respect of that conviction, serve on the defendant a notice setting out the particulars of that conviction and the penalty imposed.

In any proceeding, without prejudice to any other mode of proof—

the service on any person of any summons, notice, process, or document required or authorised to be served; or

the handwriting of any officer or person on any warrant, summons, notice, process, or document; or

the payment or tender, to any person summoned to attend as a witness, of any sum in respect of the costs or expenses of such attendance, may be proved by an affidavit taken before a justice or before a commissioner for taking affidavits in the Supreme Court: Provided that the Magistrates Court may require the person making such affidavit to be called as a witness, or require further evidence of the facts.

Service may also be proved by tender of a certificate of service signed by the person who effected service.

A document appearing to be an affidavit or certificate under this section may be accepted, without further evidence, as proof of the matters stated in it.

A person who gives a false certificate under this section is guilty of an offence.

Maximum penalty: Imprisonment for two years.