Justices Act 1959

Justices Act 1959

An Act to amend and consolidate the law relating to justices

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART I - Preliminary

1.   Short title and commencement

(1)  This Act may be cited as the Justices Act 1959 .

(2)  This Act shall commence on a date to be fixed by proclamation.

2.   Repeals

The Acts that are specified in Schedule 1 are repealed.

3.   Interpretation

[Section 3 Subsection (1) amended by No. 108 of 1974, s. 38 and Sched. 1 ][Section 3 Subsection (1) amended by No. 15 of 1976, s. 2 ][Section 3 Subsection (1) amended by No. 45 of 1987, s. 21 and Sched. 1 ][Section 3 Subsection (1) amended by No. 5 of 1990, s. 3 and Sched. 1 ][Section 3 Subsection (1) amended by No. 46 of 1991, s. 5 and Sched. 3 ][Section 3 Subsection (1) amended by No. 10 of 1993, s. 4 ][Section 3 Subsection (1) amended by No. 8 of 1994, s. 4 ][Section 3 Subsection (1) amended by No. 68 of 1994, s. 3 and Sched. 1 ][Section 3 Subsection (1) amended by No. 38 of 1995, s. 4 ][Section 3 Subsection (1) amended by No. 66 of 1995, s. 4 ]

(1)  [Section 3 Subsection (1) amended by No. 33 of 1963, s. 2 ]In this Act, unless the contrary intention appears –

affected child means a person –

(a) who is under the age of 17 years; and

(b) upon or in respect of whom the defendant is charged with having committed one or more of the following crimes:

(i) [Section 3 Subsection (1) amended by No. 7 of 1999, s. 5, Applied:30 Apr 1999] a crime under section 122 , 124 , 125 , 125A , 126 , 127 , 127A , 128 , 129 , 185 or 186 of the Criminal Code;

(ii) [Section 3 Subsection (1) amended by No. 7 of 1999, s. 5, Applied:30 Apr 1999] a crime under section 298 , 299 or 300 of the Criminal Code in relation to a crime specified in a section referred to in subparagraph (i) ;

breach of duty means any act or omission (not being a simple offence) upon complaint whereof justices may make an order on a person for the payment of money or for doing, or refraining from doing, any other act;

charge of an indictable offence means charge of an indictable offence as such and in order to a committal for trial therefor;

Chief Clerk of Petty Sessions means the person holding office as Chief Clerk of Petty Sessions by virtue of section 16 ;

Chief Magistrate means the Chief Magistrate appointed under section 5 of the Magistrates Court Act 1987 ;

commission of the peace means the letters patent of 4th May 1895, assigning justices to keep the Queen's peace in this State and any letters patent to the same purposes taking their place;

complaint means a written allegation of an indictable or simple offence or of a breach of duty made to a justice;

court of petty sessions means a court held by 2 or more justices in petty session;

court of summary jurisdiction means –

(a) a court of petty sessions; and

(b) a court held by one justice;

decision includes a committal for trial and an admission to bail as well as a conviction, order, order of dismissal, or other determination;

defendant means a person complained against before justices for an indictable offence, simple offence, or breach of duty; and in sections 77 to 87 includes any person against whom a warrant of execution is or may be issued;

district means the municipal district of a city or other municipality;

extra-territorial justice means a justice appointed under section 11 ;

gaol means a prison within the meaning of the Prison Act 1977 ;

gaoler means –

(a) in relation to a gaol that is a prison to which section 6 (3) of the Prison Act 1977 applies, the Director of Corrective Services; and

(b) in relation to a gaol that is a prison to which subsection (6) of section 6 of that Act applies, a gaoler for that prison in accordance with that subsection;

hearing includes the examination of a person charged with an indictable offence;

indictable offence means an offence which may be prosecuted upon indictment before the Supreme Court;

interim restraint order has the same meaning as in Part XA ;

magistrate means a magistrate within the meaning of the Magistrates Court Act 1987 ;

order means an order made upon a complaint of a breach of duty;

pecuniary sum means a sum of money in respect of which a warrant is issued under section 80 (1) , including the prescribed costs of the warrant and of a warrant of commitment issued under section 80 (2) (c) , 80 (4A) or 82 (1) , as the case may require;

petty session means a sitting together of 2 or more justices otherwise than in –

(a) a general session; or

(b) a special session required to be held for administrative purposes under another Act;

police officer means a police officer as defined by the Police Regulation Act 1898 ;

probation officer means a probation officer as defined by the Probation of Offenders Act 1973 ;

public officer means any person employed in any capacity in the public service of the State, and includes –

(a) a police officer; and

(b) a probation officer;

restraint order has the same meaning as in Part XA ;

Secretary means the Secretary of the Department;

simple offence means any offence (indictable or not) punishable, on summary conviction before justices, by fine, imprisonment, or otherwise;

summary conviction, or conviction, means a conviction by justices for a simple offence;

telephone interim restraint order has the same meaning as in Part XA ;

the clerk of petty sessions means the person appointed or assigned as clerk of petty sessions for the district to which the context relates;

the justices means the justices exercising jurisdiction in respect of the matter to which the context relates.

(2)  Where in any enactment the expressions information, information and complaint, charge, and charge of an indictable offence are used in relation to proceedings before justices, they shall be deemed to mean a complaint.

PART II - Justices

4.   Appointment of justices

[Section 4 Inserted by No. 15 of 1976, s. 4 ]

(1)  The Governor may appoint such persons resident in this State as he thinks fit as justices.

(2)  When a person appointed a justice under this section ceases to reside in this State, his appointment shall be deemed to be revoked.

(3)  Every appointment under subsection (1) shall be notified in the Gazette.

4A.   Powers of justices

[Section 4A Inserted by No. 15 of 1976, s. 4 ][Section 4A Amended by No. 45 of 1983, s. 3 ]A justice may exercise all the powers conferred on a justice by this Act or by any other Act or Imperial Act in force in Tasmania or by the common law and may exercise those powers whether or not he has been assigned a justice by a commission of the peace.

4B.   Abrogation of assignment of justices under commission of the peace

[Section 4B Inserted by No. 15 of 1976, s. 4 ]

(1)  After the commencement of the Justices Act 1976 no person shall be assigned a justice under a commission of the peace.

(2)  Nothing is subsection (1) affects the appointment of any person assigned a justice under a commission of the peace but any such justice may exercise all the powers of a justice appointed under section 4 .

4C.   Continuance in office of district justices

[Section 4C Inserted by No. 15 of 1976, s. 4 ]A person holding office as a district justice immediately before the commencement of the Justices Act 1976 shall, on that commencement, hold office as if he were appointed a justice under section 4 , but shall not be required to take the oaths referred to in section 5 (1) .

5.   Oaths to be taken by justices

(1)  [Section 5 Subsection (1) amended by No. 15 of 1976, s. 5 ]A person appointed under section 4 shall not exercise any of the functions of his office until he has taken the oaths required by law to be taken by a justice upon appointment to office.

(2)  If a person has taken the oaths required by law to be taken by a justice on his appointment to office, and afterwards has ceased to hold that office, it is not necessary for him again to take those oaths upon his again becoming a justice, and he does not incur any penalty or forfeiture for not again taking those oaths.

6.   Mayors as justices

[Section 6 Substituted by No. 30 of 1995, s. 3 and Sched. 1 ]The mayor of a council within the meaning of the Local Government Act 1993 is a justice by virtue of that office during the term of that office.

7.   Justices not to engage in judicial duties on attaining age of 70 years

[Section 7 Substituted by No. 15 of 1976, s. 7 ]

(1)  A justice who has attained the age of 70 years shall not –

(a) sit alone or with other justices in a court of summary jurisdiction; or

(b) do any act as an examining justice in respect of a person charged with an indictable offence.

(2)  No finding, decision, or order of a court of summary jurisdiction may be impugned, reversed, or invalidated on the ground that a justice sitting in the court had attained the age of 70 years, and no act of a justice to which subsection (1) (b) applies shall be invalidated or may be impugned on the ground that the justice had attained that age when he did that act.

8.   Resignation of justices

A justice may at any time resign his office by writing, addressed to the Attorney-General; and when his resignation has been accepted by the Governor, and the acceptance has been notified in the Gazette, his office shall be vacated.

9.   Ratepayer not disabled from acting as justice

A justice is not disabled from acting in the due discharge and execution of his duties as justice in any matter relating to a city or other municipality by reason only of his being a ratepayer, or a member of, or interested in, the concerns of the corporation.

10.   Bankrupt incapable of acting as justice

[Section 10 Amended by No. 15 of 1976, s. 8 ]If a justice is adjudged bankrupt, or makes an arrangement or composition with his creditors under the law relating to bankruptcy, or by a deed or other writing compounds with or makes an assignment for the benefit of his creditors, he shall thereupon become incapable of acting as a justice until he has been newly appointed in that behalf.

PART III - Extra-Territorial Justices

11.   Appointment of justices outside Tasmania

The Governor may appoint such and so many persons resident outside the State as he thinks fit to be justices for the State.

12.   Powers of extra-territorial justices

(1)  [Section 12 Subsection (1) amended by No. 15 of 1976, s. 9 ]An extra-territorial justice may –

(a) administer, take, or receive any oath or affidavit which a justice can lawfully administer, take, or receive; and

(b) do any act requisite for authenticating the signature of any person to any document intended to take effect within the State which a justice can do.

(2)  [Section 12 Subsection (2) amended by No. 15 of 1976, s. 9 ]Except as provided by subsection (1) , extra-territorial justices shall not exercise any of the powers or perform any of the duties or functions conferred or imposed upon a justice.

(3)  The powers conferred on an extra-territorial justice by this Act are exercisable only at or in the place or country outside this State mentioned in the instrument of his appointment.

13.   Acts of extra-territorial justices to be effectual in Tasmania

[Section 13 Amended by No. 15 of 1976, s. 10 ]Every oath and affidavit administered, taken, or received by or before, and every act done by, an extra-territorial justice under the authority of this Act, shall be as effectual as if it had been administered, taken, received, or done by or before a justice.

14.   Oaths to be taken by extra-territorial justices

A person appointed an extra-territorial justice shall not exercise any of the functions of his office until he has taken the oath of allegiance prescribed by the Promissory Oaths Act 1869 , before –

(a) some other extra-territorial justice, resident in the State or country in which that person resides;

(b) a justice for that State or country; or

(c) some other prescribed official, resident in that State or country –

but it is not necessary for any such person before exercising any such functions to take the judicial oath prescribed by the last-mentioned Act.

15.   List of extra-territorial justices

[Section 15 Substituted by No. 15 of 1976, s. 11 ][Section 15 Amended by No. 45 of 1986, s. 4 ][Section 15 Amended by No. 5 of 1990, s. 3 and Sched. 1 ]The Secretary shall cause to be kept a list of the names and addresses of all extra-territorial justices, the dates of their respective appointments, and the respective places or countries at or in which their powers under this Act are exercisable.

PART IV - Clerks

16.   Chief Clerk of Petty Sessions

[Section 16 Repealed by No. 15 of 1976, s. 12 ][Section 16 Inserted by No. 45 of 1987, s. 21 and Sched. 1 ]

(1)  [Section 16 Subsection (1) amended by No. 13 of 1989, s. 19 ]The Administrator of the Magistrates Court appointed under the Magistrates Act 1987 is, by virtue of that office and without further commission or authority, the Chief Clerk of Petty Sessions for the purposes of this Act.

(2)  In the performance of their functions and the exercise of their powers under this Act, all clerks and deputy clerks of petty sessions and any persons appointed to assist the clerks of petty sessions shall be subject to the directions of the Chief Clerk of Petty Sessions.

(3)  Subsection (2) does not apply to a magistrate discharging the duties of a clerk of petty sessions under section 19 (1) .

16A.   Appointment of clerks, &c., of petty sessions

[Section 16A Inserted by No. 60 of 1971, s. 2 ][Section 16A Amended by No. 108 of 1974, s. 2 ]

(1)  [Section 16A Subsection (1) substituted by No. 29 of 1984, Sched. 1 ][Section 16A Subsection (1) substituted by No. 5 of 1990, s. 3 and Sched. 1 ][Section 16A Subsection (1) substituted by No. 86 of 2000, Sched. 1, Applied:01 May 2001] The Minister administering the State Service Act 2000 may appoint State Service officers and State Service employees to be the clerk of petty sessions for a district and deputy clerk or deputy clerks of petty sessions for a district and those officers or employees are to hold office in conjunction with State Service employment.

(2)  [Section 16A Subsection (2) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 16A Subsection (2) omitted by No. 29 of 1984, Sched. 1 ][Section 16A Subsection (2) inserted by No. 5 of 1990, s. 3 and Sched. 1 ]Subject to and in accordance with the State Service Act 2000 , there may be appointed or employed such persons as are considered necessary for the purposes of this Act.

17.   Clerks of petty sessions

(1)  [Section 17 Subsection (1) amended by No. 108 of 1974, s. 38 and Sched. 1 ]The clerk of petty sessions is, himself or by deputy, the ordinary clerk of –

(a) all courts of summary jurisdiction;

(b) all justices examining into charges of indictable offences; and

(c) the magistrate acting ministerially or administratively in respect of matters –

within his district.

(1A)  [Section 17 Subsection (1A) inserted by No. 108 of 1974, s. 3 ][Section 17 Subsection (1A) omitted by No. 45 of 1987, s. 21 and Sched. 1 ].  .  .  .  .  .  .  .  

(2)  [Section 17 Subsection (2) substituted by No. 19 of 1965, s. 2 ]The clerk of petty sessions may himself or by deputy receive complaints and issue summonses thereon, summonses to witnesses, and process in execution of convictions and orders as if he were a justice.

(2A)  [Section 17 Subsection (2A) amended by No. 40 of 1999, s. 4, Applied:16 Jul 1999] [Section 17 Subsection (2A) inserted by No. 19 of 1965, s. 2 ]Subject to this section, a justice who is a clerk of petty sessions, deputy clerk of petty sessions, or clerk in the office of a clerk of petty sessions shall not–

(a) sit alone or with other justices in a court of summary jurisdiction; or

(b) do any act as an examining justice in respect of a person charged with an indictable offence.

(2B)  [Section 17 Subsection (2B) inserted by No. 40 of 1999, s. 4, Applied:16 Jul 1999] The Chief Magistrate may authorise a particular, or any, justice who holds the office or position of a clerk of petty sessions, deputy clerk of petty sessions or clerk in the office of a clerk of petty sessions to sit alone in a court of summary jurisdiction.

(2C)  [Section 17 Subsection (2C) inserted by No. 40 of 1999, s. 4, Applied:16 Jul 1999] An authorisation under subsection (2B) is subject to any conditions specified in it.

(2D)  [Section 17 Subsection (2D) inserted by No. 40 of 1999, s. 4, Applied:16 Jul 1999] A justice authorised under subsection (2B) may do one or more of the following:

(a) adjourn to a later date proceedings before the justice;

(b) if the prosecutor consents, admit the defendant to bail;

(c) if the defendant has appeared before the justice in accordance with his or her bail, continue that bail to the date to which the proceedings are being adjourned;

(d) where the justice continues a defendant's bail and both the defendant and the prosecutor consent to a variation of the conditions to which that bail is subject, vary those conditions;

(e) order the defendant to appear before justices on the date to which the proceedings are being adjourned.

(2E)  [Section 17 Subsection (2E) inserted by No. 40 of 1999, s. 4, Applied:16 Jul 1999] An order under subsection (2D)(e) has the same effect as a summons in similar terms.

(2F)  [Section 17 Subsection (2F) inserted by No. 40 of 1999, s. 4, Applied:16 Jul 1999] The Chief Magistrate may vary or revoke an authorisation made under subsection (2B) .

(2G)  [Section 17 Subsection (2G) inserted by No. 40 of 1999, s. 4, Applied:16 Jul 1999] An authorisation under subsection (2B) and any variation or revocation of such an authorisation are to be in writing.

(3)  [Section 17 Subsection (3) amended by No. 108 of 1974, s. 3 ]This section does not prevent justices from using another person as their clerk in court when the clerk of petty sessions or any of his deputies cannot conveniently attend.

17A.   Clerk of petty sessions to have care and custody of records of court

[Section 17A Inserted by No. 115 of 1986, s. 4 ]

(1)  A clerk of petty sessions shall have the care and custody of all the records of the court of which he is the clerk.

(2)  In subsection (1) , records includes, without limiting the generality of that expression –

(a) the complaints and applications lodged with a clerk of petty sessions and any documents filed in connection with those complaints and applications;

(b) where evidence in proceedings in a court of summary jurisdiction is recorded by mechanical means on to tapes or other apparatus, those tapes or other apparatus; and

(c) the record of those proceedings that are taken by the justices pursuant to section 50A (1) .

18.   Deputy clerks of petty sessions, &c.

(1)  Subject to the direction of the justices or of the clerk of petty sessions a deputy clerk of petty sessions may do anything that the clerk of petty sessions may do under any enactment.

(2)  During a petty session or the session of a justice acting judicially or examining into a charge of an indictable offence, any person acting as clerk to the justice or justices may do all that the clerk of petty sessions might do in respect of the business of the session.

19.   Magistrate may discharge duties of the clerk of petty sessions

(1)  [Section 19 Subsection (1) amended by No. 108 of 1974, s. 3 and s. 38 and Sched. 1 ]In a district where the office of clerk of petty sessions is vacant or at a place at which no clerk of petty sessions or deputy clerk of petty sessions is present, the magistrate acting in that place may discharge all or any of the duties of the clerk of petty sessions, and all acts done by that magistrate in pursuance of this section are as valid as if done by the clerk, and all notices required to be given to the clerk, and all other matters and things required to be done with or in reference to the clerk, may be given to or done with or in reference to that magistrate, and shall have the like force and effect.

(2)  The justices in petty sessions at that place or the Minister may require that any of such duties, acts, matters, and things as they or he shall think convenient shall be done by, with, or in reference to some police officer, and thereupon those acts, matters, and things if so done shall be as valid as if done by, with, or in reference to the clerk of petty sessions.

19A.   

[Section 19A Inserted by No. 108 of 1974, s. 5 ][Section 19A Amended by No. 29 of 1984, s. 3 and Sched. 1 ][Section 19A Repealed by No. 45 of 1987, s. 21 and Sched. 1 ].  .  .  .  .  .  .  .  

PART V - Jurisdiction

20.   Hearing of complaints

[Section 20 Amended by No. 108 of 1974, s. 38 and Sched. 1 ]

(1)  Every complaint shall be heard and determined by a magistrate or by one or by more justices, as is directed by the Act relating to the matter, or if there is no such direction, by any 2 or more justices.

(2)  No justice other than a magistrate shall sit or adjudicate under this Act on the hearing of any complaint unless he has been notified as prescribed by the clerk of petty sessions that his attendance is required on the day on which that complaint is to be heard.

(3)  No finding, decision, or order of any court of summary jurisdiction may be impugned, reversed, or invalidated on the ground that a justice sitting in the court has not received a notice as provided by subsection (2) .

21.   Decision of 2 or more justices

[Section 21 Amended by No. 108 of 1974, s. 38 and Sched. 1 ]

(1)  Subject to subsection (2) , when 2 or more justices hear a matter, and do not agree, the decision of the majority shall be the decision of the justices, and if they are equally divided in opinion, the justices present, or a majority of them may –

(a) dismiss the case; or

(b) adjourn the case for a rehearing with additional justices, or by other justices, or by a magistrate sitting alone.

(2)  When 2 justices only are present and acting at the hearing of a matter and do not agree, if one of them is a magistrate, the decision of the magistrate shall prevail.

(3)  Where a complaint must be heard and determined by 2 or more justices, the justices making the decision must be present and act together during the whole of the hearing and determination.

22.   Powers of magistrates

[Section 22 Amended by No. 108 of 1974, s. 38 and Sched. 1 ]

(1)  A magistrate has power to do alone –

(a) whatever may be done by a court of petty sessions; and

(b) any other act which may be done by 2 or more justices in petty session.

(2)  The court held by a magistrate, whether in the exercise of the jurisdiction of 2 or more justices or of jurisdiction exercisable by him as a magistrate, shall be deemed to be a court of petty sessions.

23.   Powers of single justice

[Section 23 Amended by No. 108 of 1974, s. 38 and Sched. 1 ]One justice may –

(a) receive a complaint and issue a summons or warrant thereon;

(b) issue his summons to compel the attendance of witnesses;

(c) do all other necessary acts and matters preliminary to the hearing of a complaint or matter notwithstanding that it must be heard and determined by a magistrate or 2 or more justices;

(d) after the determination of a complaint or matter, whether or not he determined it or took part in its determination, issue a warrant of execution or commitment thereon; and

(e) examine into a complaint of an indictable offence and commit the defendant for trial, or if he pleads guilty, commit him for sentence.

23A.   Time and place of sitting, &c., unrestricted

[Section 23A Inserted by No. 108 of 1974, s. 6 ]Subject to any other provisions of this Act –

(a) all courts of summary jurisdiction;

(b) all justices examining into charges of indictable offences; and

(c) all justices dealing with bail or recognizances –

may sit and act at any time, including Sunday, and at any place.

23AB.   Approval and roster of justices who may constitute courts of summary jurisdiction, &c.

[Section 23AB Inserted by No. 50 of 1995, s. 4 ]The Chief Magistrate may from time to time –

(a) by instrument in writing, approve the justices who may constitute courts of summary jurisdiction, examine charges of indictable offences and deal with bail or recognizances; and

(b) approve and vary rosters of those justices to sit as courts of summary jurisdiction, examine charges of indictable offences and deal with bail or recognizances.

24.   Summons or warrant not avoided by death, &c., of justice

A warrant or summons issued by a justice is not avoided by reason of his dying or ceasing to hold office.

25.   Contempt

(1)  [Section 25 Subsection (1) amended by No. 55 of 1965, s. 5 ][Section 25 Subsection (1) amended by No. 38 of 1974, s. 7 ][Section 25 Subsection (1) amended by No. 43 of 1991, s. 5 and Sched. 1 ]If a person –

(a) wilfully misbehaves himself before justices sitting in any place in the exercise of their jurisdiction under this or any other Act;

(b) wilfully interrupts or obstructs proceedings before such justices; or

(c) is guilty of wilful prevarication in giving evidence before such justices –

that person shall be deemed guilty of contempt of court, and the justices may, during their sitting, by oral order, direct that person to be removed from the court or place, and to be taken into custody, and at any time before they rise may impose on that person a fine not exceeding 10 penalty units or, by warrant, commit that person to a term of imprisonment not exceeding 6 months.

(2)  Where a person is guilty of misconduct mentioned in subsection (1) , the justices may, if they think fit, accept an apology for the misconduct, and may remit any penalty or punishment for it either wholly or in part.

PART VI - General Procedure

26.   Limitation on summary proceedings

(1)  In a case of a simple offence (not being an indictable offence), or of a breach of duty, unless some other time is limited for making complaint by the law relating to the particular case, complaint must be made within 6 months from the time when the matter of complaint arose.

(2)  [Section 26 Subsection (2) inserted by No. 71 of 1993, s. 4 ]Notwithstanding subsection (1) , a complaint for a simple offence (not being an indictable offence) may be made against a person within 12 months after the time when the matter of complaint arose if –

(a) that matter of complaint may also give rise to an indictable offence; and

(b) the person has been charged with that indictable offence within the period of 6 months, or the other time referred to in that subsection.

(3)  [Section 26 Subsection (3) inserted by No. 71 of 1993, s. 4 ]Notwithstanding subsections (1) and (2) , a complaint for a simple offence (not being an indictable offence) may be made against a person at any time if –

(a) the matter of complaint giving rise to a simple offence may also be a matter giving rise to an indictable offence; and

(b) the person has been charged with that indictable offence within the period of 6 months, or the other time, referred to in subsection (1) ; and

(c) the person has consented in writing to the making of that complaint.

27.   Proceedings may be commenced by complaint

(1)  [Section 27 Subsection (1) amended by No. 108 of 1974, s. 8 ]Subject to subsections (2) and (3) , and except as otherwise enacted or prescribed under any enactment, proceedings before justices shall be commenced by a complaint, which may be made or laid by the complainant in person, or by his attorney or other person authorized in that behalf.

(2)  [Section 27 Subsection (2) inserted by No. 108 of 1974, s. 8 ]Where a person has been arrested without a warrant, oral information of the substance of the charge may take the place of a complaint up to the stage of the proceedings at which a complaint is needed for the person charged to plead to it.

(3)  [Section 27 Subsection (3) inserted by No. 108 of 1974, s. 8 ][Section 27 Subsection (3) amended by No. 5 of 1990, s. 3 and Sched. 1 ]A complaint of a breach of the Criminal Code may not be made by a person other than –

(a) a public officer;

(b) a person authorized or directed to make the complaint by the Crown or the Commonwealth; or

(c) an officer of a municipality or another statutory public or local authority –

acting in good faith in his official capacity, without the consent of the Director of Public Prosecutions, who shall satisfy himself by affidavit, statutory declaration, or otherwise that the complainant is acting in good faith and on reasonable grounds.

28.   Complaint against several defendants

(1)  Any number of persons who are alleged to be parties within the meaning of section 73 to the same simple offence or who are alleged to be parties within the meaning of section 3 of the Criminal Code to the same indictable offence may be joined in the same complaint and the charges against them may be heard together or separately, notwithstanding that a party to the offence is not included in the complaint or is not amenable to justice.

(2)  Where 2 or more persons are joined as defendants in the same complaint, whether in respect of the same offence or different offences, the justices may, at any time during the hearing, on the application of any of the defendants, direct that the hearing of the complaint against any of the defendants shall be had separately from the hearing of the complaint against the other or others of them.

29.   Only one matter of complaint: Procedure if otherwise

(1)  A complaint shall be for one matter only and not for 2 or more matters, except –

(a) in the case of indictable offences, where the matters complained of are such that they may be charged in one indictment;

(b) in other cases, if the matters of complaint are –

(i) substantially of the same act or omission on the part of the defendant, although amounting in law to 2 or more offences or 2 or more matters of complaint; or

(ii) founded on the same facts or are, or form part of, a series of offences or matters of complaint of the same or a similar character; or

(c) where otherwise expressly enacted.

(2)  Where several matters of complaint are joined in the one complaint pursuant to subsection (1) , each matter of complaint shall be set out in a separate numbered paragraph.

(3)  If, contrary to subsection (2) , any paragraph in a complaint includes more than one matter of complaint, the justices may, upon such terms and conditions as they think fit, at any stage of the hearing permit the complainant to amend that paragraph so that it shall include only one matter of complaint and to add a new paragraph or new paragraphs with respect to the other matter or matters of complaint.

(4)  Where, on the hearing of a complaint, it appears to the justices that the defendant may be prejudiced or embarrassed in his defence because the complaint contains more than one matter of complaint or that for any other reason it is desirable to direct that one or more of the matters of complaint should be heard separately, the justices may order a separate hearing of any matter of complaint.

(5)  On the hearing of a complaint that does not comply with subsection (1) –

(a) the justices shall, on the application of the defendant, require the complainant to choose one matter of complaint on which to proceed, and shall strike out of the complaint all other matters, without prejudice to the right of the complainant to lay a fresh complaint against the defendant in respect of any matter so struck out; or

(b) if the defendant does not so apply, the justices shall proceed to hear the evidence, and shall determine which matter or matters of complaint, if any, is or are proved, and may convict the defendant accordingly.

30.   Statement of offences, &c.

(1)  Any complaint, summons, warrant, or other document that is laid, issued, or made for the purpose of, or in connection with, proceedings before justices shall be sufficient if it –

(a) describes the matter of complaint with which the defendant is charged or of which he is convicted in ordinary language, avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the matter of complaint; and

(b) contains such particulars as will give reasonable information of the nature of the matter complained of.

(2)  Where an enactment constituting a simple offence or breach of duty states –

(a) the offence or breach of duty to be doing or omitting to do –

(i) any one of any different acts in the alternative; or

(ii) any act in any one of different capacities or with any one of different intentions; or

(b) any part of the offence or breach of duty in the alternative –

the acts, omissions, capacities, intentions, or other matters stated in the alternative in the enactment may be stated in the alternative in a complaint for that simple offence or breach of duty.

31.   Irregularities and amendments

(1)  An objection shall not be taken or allowed to a complaint in respect of –

(a) an alleged defect therein, in substance or in form; or

(b) a variance between it and the evidence in support thereof.

(2)  Notwithstanding the provisions of subsection (1) , where –

(a) a complaint fails to disclose an offence or matter of complaint; or

(b) the defendant appears to have been prejudiced by any defect or variance referred to in that subsection –

the justices shall, unless the complaint is amended as provided in subsection (3) , dismiss the complaint.

(3)  If it appears to the justices that the complaint –

(a) fails to disclose an offence or matter of complaint, or is otherwise defective; and

(b) ought to be amended so as to disclose an offence or matter of complaint, or otherwise to cure the defect –

the justices may amend the complaint upon such terms as may be just.

(4)  An objection shall not be taken or allowed to a warrant or summons in respect of –

(a) an alleged defect therein, in substance or in form; or

(b) a variance between it and the evidence in support of the complaint in connection with which it is issued –

but the justices may adjourn the hearing if it appears to them that the defendant has been prejudiced by the defect or variance.

(5)  Any –

(a) conviction or order made by justices; or

(b) warrant of committal, or other warrant or proceeding issued or had by or before justices –

may be amended, according to the evidence, by the justices by or before whom it was made, issued, or had, or by any court before which it comes, on appeal or otherwise, at any time after it has been signed, and before it has been executed, upon such terms as to costs, or otherwise, as to the justices or court seems fit.

(6)  A conviction or order of, or other proceeding before, justices shall not be quashed or set aside for a mere matter of form or technical error, or mistake in a name, date, or title, or in a matter of description only, but in all cases regard shall be had alone to the substantial merits and justice of the case.

(7)  A warrant of commitment issued upon any conviction by justices shall not be void or invalid, or be quashed, for any defect in substance or in form, and a party shall not be entitled to be discharged out of custody on account of any such defect where –

(a) it is alleged in the warrant that the party has been convicted of an offence; and

(b) it appears to the court before which the warrant is returned that the conviction proceeded on good and valid grounds.

32.   Process on complaint

[Section 32 Amended by No. 8 of 1961, s. 3 ]When complaint is made to a justice he may –

(a) issue a summons to the person complained against;

(b) where the complaint is –

(i) that a person has committed or is accessory to having committed an indictable offence within the State;

(ii) that a person charged with having committed or with being suspected of having committed an indictable offence on the high seas or in any creek, harbour, haven, or other place in which the Admiralty of England has and claims to have jurisdiction or on land outside the State, of which offence cognizance may be taken by the Supreme Court, is suspected of being within the State; or

(iii) that a person has committed a simple offence the matter whereof is substantiated before him on oath –

issue his warrant for the apprehension of the person complained against; or

(c) where the person complained against is imprisoned for any other cause, issue his warrant to the gaoler to bring up the body of that person as often as is required for the proceedings upon the complaint, and the gaoler shall obey the warrant.

33.   Apprehension of person summoned

Where a summons has been issued to a person, a justice may, before or after the time for appearance mentioned in the summons, issue a warrant for the apprehension of that person.

34.   Power of police officers, &c., to admit to bail

[Section 34 Substituted by No. 108 of 1974, s. 9 ][Section 34 Amended by No. 48 of 1984, s. 4 ][Section 34 Amended by No. 45 of 1986, s. 5 ][Section 34 Amended by No. 64 of 1994, s. 4 ][Section 34 Amended by No. 43 of 1991 ][Section 34 Amended by No. 21 of 1992, s. 4 ][Section 34 Substituted by No. 10 of 1994, s. 7 and Sched. 2 ][Section 34 Subsection (1) amended by No. 66 of 1995, s. 5 ]

(1)  [Section 34 Subsection (1) amended by No. 40 of 1999, s. 5, Applied:16 Jul 1999] [Section 34 Subsection (1) amended by No. 50 of 1995, s. 5 ]Subject to subsection (3) , where a person has been taken into custody for a simple offence, for a breach of duty, pursuant to a warrant issued by a justice under section 12 of the Bail Act 1994 or to facilitate the making of an application for a restraint order–

(a) an officer of police; or

(b) a police officer who is in charge, or has for the time being the charge, of a police office or police station; or

(c) in the case of an offence against the Road Safety (Alcohol and Drugs) Act 1970 , an approved operator within the meaning of section 3 (6) of that Act –

must inquire into the case and must, unless there is reasonable ground for believing that such a course would not be desirable in the interests of justice, admit that person to bail.

(2)  [Section 34 Subsection (2) amended by No. 40 of 1999, s. 5, Applied:16 Jul 1999] [Section 34 Subsection (2) added by No. 66 of 1995, s. 5 ]In the case of a person taken into custody to facilitate the making of an application for a restraint order, the person considering under subsection (1) whether to admit that person to bail, in determining whether there is reasonable ground for believing that to do so would not be in the interests of justice–

(a) must consider the protection and welfare of the person for whose benefit the restraint order, interim restraint order or telephone interim restraint order is sought or was made to be of paramount importance; and

(b) must take into account any previous violence by that person against the person for whose benefit the restraint order, interim restraint order or telephone interim restraint order is sought or was made or against any other person whether or not that person was convicted of an offence, or had a prior restraint order made against him or her, in respect of that violence.

(3)  [Section 34 Subsection (3) inserted by No. 50 of 1995, s. 5 ] Subsection (1) does not apply if the person is detained under section 4 (2) of the Criminal Law (Detention and Interrogation) Act 1995 .

34A.   Procedure on arrest

[Section 34A Inserted by No. 108 of 1974, s. 9 ][Section 34A Amended by No. 21 of 1992, s. 5 ][Section 34A Amended by No. 64 of 1994, s. 5 ][Section 34A Amended by No. 10 of 1994, sched. 2 ][Section 34A Substituted by No. 50 of 1995, s. 6 ]

(1)  Where a person, other than a prescribed person, who is taken into custody for an offence or a breach of duty or under section 5 (5A) of the Bail Act 1994 is brought before a justice, the justice must determine whether there is alleged against that person an act or omission that would constitute an offence or a breach of duty and –

(a) if there is not, the justice must release him or her; or

(b) if there is, the justice must, except in a case to which section 67 applies, proceed as provided in section 35 .

(2)  Where a prescribed person is brought before a justice, the justice must –

(a) cause the application for the restraint order to be read to the person or explain to the person, in simple terms, the contents and meaning of the application; and

(b) determine whether there is alleged against the person conduct that would constitute grounds for the making of a restraint order under Part XA .

(3)  If a justice is satisfied that –

(a) there is not alleged against a prescribed person who is brought before the justice conduct that would constitute grounds for the making of a restraint order under Part XA , the justice must release the person; or

(b) there is alleged against that person any such conduct, the justice must –

(i) proceed as provided in section 35 ; or

(ii) make an interim restraint order under section 106D notwithstanding that the justice is acting alone in making that order.

(4)  For the purposes of this section, prescribed person means a person –

(a) who is taken into custody to facilitate the making of an application for a restraint order under Part XA ; or

(b) who, after having been taken into custody as specified in paragraph (a) and released on bail under section 34 , is taken into custody under section 5 (5A) of the Bail Act 1994 .

35.   Power of justice to admit person to bail

[Section 35 Substituted by No. 10 of 1994, s. 7 and Sched. 2 ][Section 35 Substituted by No. 108 of 1974, s. 9 ][Section 35 Amended by No. 45 of 1986, s. 6 ][Section 35 Amended by No. 77 of 1986, s. 5 ][Section 35 Amended by No. 57 of 1987, s. 4 ][Section 35 Amended by No. 43 of 1991 ][Section 35 Amended by No. 64 of 1994, s. 15 ][Section 35 Amended by No. 50 of 1995, s. 7 ]

(1)  Where a person referred to in section 34A is brought before a justice, the justice must ask the person whether he or she wishes to apply for bail and, if the person so wishes, the justice –

(a) may make an order for bail for the person; or

(b) may refuse bail.

(2)  [Section 35 Subsection (2) added by No. 66 of 1995, s. 6 ]In determining whether to refuse to bail or to admit to bail a person who is a prescribed person within the meaning of section 34A or a person referred to in section 34A (1) who has been taken into custody in respect of an offence constituted by a breach of a restraint order, interim restraint order or telephone interim restraint order, the justice –

(a) must consider the protection and welfare of the person for whose benefit the restraint order, interim restraint order or telephone interim restraint order is sought or was made to be of paramount importance; and

(b) must take into account any previous violence by that person against the person for whose benefit the restraint order, interim restraint order or telephone interim restraint order is sought or was made or against any other person whether or not that person was convicted of an offence, or had a prior restraint order made against him or her, in respect of that violence.

36.   

[Section 36 Substituted by No. 108 of 1974, s. 9 ][Section 36 Repealed by No. 10 of 1994, s. 7 and Sched. 2 ].  .  .  .  .  .  .  .  

36A.   

[Section 36A Inserted by No. 108 of 1974, s. 9 ][Section 36A Repealed by No. 10 of 1994, s. 7 and Sched. 2 ].  .  .  .  .  .  .  .  

36B.   

[Section 36B Inserted by No. 57 of 1987, s. 5 ][Section 36B Repealed by No. 10 of 1994, s. 7 and Sched. 2 ].  .  .  .  .  .  .  .  

37.   Admission to courts of summary jurisdiction

(1)  Subject to subsection (2) and to the Admission to Courts Act 1916 , and the regulations thereunder, the room or place in which justices sit to hear and determine a complaint upon which a conviction or order may be made, is an open and public court, to which all persons may have access so far as it can conveniently contain them.

(2)  The justices may, if they think fit, and shall, if required by a party, at any time during the hearing, order that all witnesses, other than the complainant and the defendant, and the witness under examination, except in so far as in particular cases and for special circumstances they see fit otherwise so to do, shall go and remain outside, and beyond the hearing of the court until required to give evidence.

(3)  If a witness wilfully disobeys an order under subsection (2) , he shall be deemed guilty of a contempt of court, and may be punished as provided in section 25 .

(4)  [Section 37 Subsection (4) omitted by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] .  .  .  .  .  .  .  .  

37A.   Publication of accounts of certain proceedings

[Section 37A Inserted by No. 108 of 1974, s. 10 ]

(1)  [Section 37A Subsection (1) amended by No. 43 of 1991, s. 5 and Sched. 1 ]Notwithstanding anything in section 13 of the Defamation Act 1957 , a person shall not publish or cause or allow to be published an account of the proceedings on an application in respect of bail, except an account giving the fact of the application and stating that an order has been made in respect thereof.

Penalty:  Fine not exceeding 10 penalty units or imprisonment for a term not exceeding 6 months.

(2)  Subsection (1) does not apply to –

(a) a report of proceedings in the Supreme Court or before a judge that is written as a law report; or

(b) the publication of an account of proceedings referred to in that subsection that is published after the final determination of the charge upon which the applicant was then held in custody.

(3)  Notwithstanding anything contained in any other Act, a person who unlawfully publishes or causes or allows to be published an account of proceedings before justices that is forbidden to be published (other than an account to which subsection (1) applies) is liable to the penalty prescribed by that subsection.

38.   Representation of parties by counsel, &c.

(1)  A complainant may, by himself, his counsel, or attorney, conduct his case, and examine and cross-examine witnesses.

(2)  A defendant shall be admitted, by himself, his counsel, or attorney, to make his full answer and defence to the complaint, and to examine and cross-examine witnesses.

(3)  The complainant, if a public officer, may, by himself, by any other public officer, or by his counsel, or attorney, conduct his case, and examine and cross-examine witnesses.

(4)  With the consent of the justices, a police officer may conduct the case of any complainant, and examine and cross-examine witnesses.

39.   Evidence: How taken

A witness shall be examined upon oath, or in such other manner as is prescribed or allowed by the Acts relating to giving evidence in courts of justice, and the justices may administer to witnesses the usual oath.

40.   Prosecutor or complainant a competent witness

Upon a complaint of an indictable offence, simple offence, or breach of duty, the prosecutor or complainant is a competent witness to support the complaint.

41.   Justice may summon witnesses to attend and give evidence

(1)  A justice may issue a summons to a person requiring him to be and appear as a witness at a time and place mentioned in the summons before such justices as shall then be there to testify what he knows concerning the matter of a complaint.

(2)  If the justice is satisfied by evidence upon oath that it is probable that a person whose evidence is desired will not attend to give evidence without being compelled so to do, then, instead of issuing a summons, he may issue a warrant in the first instance.

(3)  [Section 41 Subsection (3) inserted by No. 108 of 1974, s. 11 ]A person served with a summons issued under this section may, at any reasonable time before the time at which he is thereby required to appear, apply –

(a) where the party responsible for the issue of the summons is a public officer, to a superintendent of police or a police officer who is in charge, or has for the time being the charge, of a police office or police station; and

(b) in any other case, to the party responsible for the issue of the summons –

to advance him a reasonable sum towards his costs and expenses of attending, and the person applied to shall, subject to subsection (4) , forthwith advance him that sum.

(4)  [Section 41 Subsection (4) added by No. 108 of 1974, s. 11 ]A person applied to under subsection (3) may –

(a) if he is a public officer or an officer of the Commonwealth, arrange for a witness to use official transport to attend or return from the court; or

(b) where it is reasonable to use public transport to attend or return from the court, provide a witness with a ticket or warrant enabling him so to travel –

in lieu of advancing the witness the costs and expenses of that travel.

42.   Failure of witness to attend

[Section 42 Substituted by No. 108 of 1974, s. 12 ][Section 42 Substituted by No. 71 of 1993, s. 5 ]

(1)  A person who, without reasonable excuse, fails or refuses to comply with a summons issued under section 41 is guilty of an offence.

Penalty:  Fine not exceeding 5 penalty units.

(2)  A justice before whom a person is summoned to appear as a witness may issue a warrant for the arrest of that person if –

(a) that person fails or refuses to comply with the summons; and

(b) a reasonable excuse for that failure or refusal is not given; and

(c) the summons was served on that person or had come to that person's knowledge.

(3)  [Section 42 Subsection (3) omitted by No. 66 of 1995, s. 7 ].  .  .  .  .  .  .  .  

(4)  [Section 42 Subsection (4) amended by No. 66 of 1995, s. 7 ]A justice may –

(a) refuse to admit to bail a person taken into custody under a warrant issued under subsection (2) and brought before the justice;

(b) admit that person to bail; or

(c) orally order that person to appear before a court of petty sessions at the time and place to which the proceedings in which that person is required as a witness have been adjourned.

(5)  An order under subsection (4) (c) has the same effect as a summons issued under section 41 .

43.   Witness not answering

If on the appearance of a person required as a witness before justices, either voluntarily or in obedience to a summons, or upon being brought before them by virtue of a warrant, that person –

(a) refuses to be examined upon oath concerning the matters;

(b) refuses to take an oath; or

(c) having taken an oath refuses to answer such questions concerning the matter as are then put to him –

without offering any sufficient excuse for his refusal, any justice then present and having there jurisdiction may by warrant commit the person so refusing to a gaol, there to remain and be imprisoned for 7 days, unless in the meantime he consents to be examined and to answer concerning the matter.

44.   Production of documents before justices

(1)  When justices have authority to summon any person as a witness, they have the like authority to require and compel him to bring and produce, for the purposes of evidence, all documents and writings, or articles in his possession or power, and to proceed against him in case of neglect or refusal so to do in the same manner as in case of neglect or refusal to attend or refusal to be examined.

(2)  A person is not bound under this section to produce a document, writing, or article not specified or otherwise sufficiently described in the summons, or which he would not be bound to produce under a subpoena duces tecum in the Supreme Court.

45.   Expenses of witnesses

(1)  A party to a proceeding under this Act, not being a public officer, is liable as in civil proceedings to a witness whose attendance at the proceedings he has procured by summons or otherwise for expenses and compensation, notwithstanding that an order may be or is made for the payment of that party's costs (including witnesses' expenses and compensation) by another party to the proceedings.

(2)  [Section 45 Subsection (2) amended by No. 13 of 1996, s. 23, Applied:01 Jul 2001] A party to a proceeding under this Act may ask the justices hearing it to fix the expenses and compensation of any witness to whom he is liable therefor, and the justices shall, before concluding the proceeding, make an order fixing them in accordance with the scale for the time being prescribed for the purposes of section 17 of the Criminal Procedure (Attendance of Witnesses) Act 1996 .

(3)  If the justices have reason to believe that a person who has appeared and given evidence, or, as the case may be, has appeared and produced any documents, writings, or articles, on the hearing of a complaint, has –

(a) attempted to evade service of a summons served on him for that purpose; or

(b) failed to appear in obedience to a summons so served or in pursuance of a recognizance to appear and give evidence –

or if, in the opinion of the justices, the conduct or demeanour of that person when appearing before the justices on the hearing of the complaint is unsatisfactory or improper, the justices may expressly fix less than they would otherwise fix under this section or may refuse to make an order fixing the expenses and compensation to be paid to that person.

(4)  Where a person is liable to pay a witness in a proceeding under this Act a reasonable amount or as much as he deserves for expenses and compensation, an order under subsection (2) is conclusive of the amount.

(5)  [Section 45 Subsection (5) omitted by No. 108 of 1974, s. 38 and Sched. 1 ].  .  .  .  .  .  .  .  

(6)  [Section 45 Subsection (6) amended by No. 13 of 1996, s. 23, Applied:01 Jul 2001] A public officer who is a party to a proceeding under this Act may, at or after the hearing, obtain an order under subsection (2) as if he were personally liable to the witnesses whose attendance at the proceeding he has procured, and may, in the case of an indictable offence, have included in the order the expenses and compensation of any person who might be entitled under section 17 of the Criminal Procedure (Attendance of Witnesses) Act 1996 as if he were personally liable to that person for the expenses and compensation.

(7)  [Section 45 Subsection (7) amended by No. 45 of 1986, s. 7 ][Section 45 Subsection (7) amended by No. 5 of 1990, s. 3 and Sched. 1 ]A witness whose expenses and compensation are fixed by an order under subsection (6) is entitled to payment by the Secretary of the amount so fixed, out of moneys to be provided by Parliament for that purpose, upon claim made and verified as directed by the Attorney-General.

(8)  [Section 45 Subsection (8) amended by No. 45 of 1986, s. 7 ][Section 45 Subsection (8) amended by No. 5 of 1990, s. 3 and Sched. 1 ]A clerk of petty sessions who receives a sum allowed for costs under section 77 shall account to the Secretary for any payment made under subsection (7) upon an order under subsection (6) obtained in the same proceedings.

(9)  A public officer who receives a sum allowed him for costs under section 77 shall pay over that sum to the clerk of petty sessions who would have received it if it had been levied by execution.

(10)  [Section 45 Subsection (10) substituted by No. 13 of 1996, s. 23, Applied:01 Jul 2001] Payment under subsection (7) is taken as satisfaction of an entitlement under section 17 of the Criminal Procedure (Attendance of Witnesses) Act 1996 in respect of the same attendance of a witness.

(11)  Nothing in this section affects the operation of section 77 , and the justices are not bound to make the amount which a witness is entitled to receive under this section from the party who procured his attendance the same as the amount which they allow under that section against the opposite party.

46.   Discharge of witness on recognizance

A witness or person sought to be made a witness may be discharged upon recognizance.

47.   Place of committal when defendant on remand

[Section 47 Substituted by No. 108 of 1974, s. 13 ]Where justices have power to remand a defendant in custody, they may, instead of committing him to a gaol, commit him to another place of security or to such other custody as they think fit.

48.   Recognizances

[Section 48 Amended by No. 10 of 1994, s. 7 and Sched. 2 ]Where justices are authorized to discharge a witness or other person upon recognizance, they may order his discharge upon his entering into a recognizance, with or without sureties at their discretion, conditioned for his appearance at the time and place to which the hearing is adjourned, or which is named in the recognizance.

49.   Issue of warrant for non-appearance

[Section 49 Amended by No. 10 of 1994, s. 7 and Sched. 2 ]If a witness or other person, does not appear at the time and place mentioned in the recognizance, then the justices who are there present may adjourn the hearing, and may issue a warrant for his apprehension.

50.   Commitment

The person to whom a warrant of commitment is directed shall convey the person therein named or described to the gaol or other place mentioned in the warrant, and there deliver him, together with the warrant, to the gaoler of that gaol or place, who shall thereupon give the person delivering the prisoner into his custody a receipt for the prisoner, setting forth the state and condition in which the prisoner was when he was delivered into the custody of the gaoler.

50A.   Justices' record

[Section 50A Inserted by No. 108 of 1974, s. 14 ]

(1)  Justices before whom any proceedings subject to this Part take place shall take, or cause to be taken, a record of –

(a) the course of;

(b) the evidence received in; and

(c) their decision and orders in –

those proceedings.

(2)  [Section 50A Subsection (2) added by No. 45 of 1986, s. 8 ]A party to proceedings subject to this Part or a person who appears to the clerk of petty sessions to have a sufficient interest in the subject-matter of the proceedings may, on application made to the clerk and upon payment of the relevant fee prescribed in the rules made under section 144 , obtain from the clerk a certified copy of the recording of the proceedings unless the clerk certifies that no recording of the proceedings exists from which a copy may be taken.

(3)  [Section 50A Subsection (3) added by No. 45 of 1986, s. 8 ]On receipt of an application under subsection (2) , the clerk may, if the recording of the proceedings has been transcribed, upon payment of the relevant fee prescribed in the rules made under section 144 , provide the applicant with a certified transcript of the recording.

(4)  [Section 50A Subsection (4) added by No. 45 of 1986, s. 8 ]For the purposes of subsections (2) and (3) , certified, in relation to a copy of the recording of proceedings or a transcript of the recording of those proceedings, means certified by the person who copied the recording, or who transcribed the recording, of the proceedings as being a true and accurate copy of the recording or transcript of the recording.

50B.   Adjournment of proceedings

[Section 50B Inserted by No. 108 of 1974, s. 14 ]

(1)  [Section 50B Subsection (1) substituted by No. 8 of 1994, s. 5 ]Any justice or justices hearing any proceedings may, after hearing such of the parties to the proceedings as are present in court, adjourn the proceedings to another court.

(2)  [Section 50B Subsection (2) amended by No. 57 of 1987, s. 6 ]A clerk of petty sessions may, if a consent, in writing, to the adjournment of proceedings has been –

(a) signed by the parties to the proceedings or their attorneys or agents; and

(b) lodged with him at any time before the date set down for the hearing of the proceedings before a justice or justices in his district –

adjourn those proceedings from the court in which they have been set down for hearing to another court.

(3)  Where, pursuant to subsection (2) , a clerk of petty sessions adjourns proceedings to a court outside his district, he shall forward all necessary documents to the clerk of petty sessions for the district in which the court is situated.

(4)  The rules made under section 144 may provide for or with respect to matters incidental to the adjournment of proceedings under this section, including the continuation of bail and remand.

50C.   Power to remand in certain cases

[Section 50C Inserted by No. 115 of 1986, s. 5 ]

(1)  Where justices find that a person is guilty of an offence, the justices may, instead of sentencing that person for that offence forthwith, remand him for sentencing by themselves or by other justices.

(2)  Where justices remand a person under subsection (1) , those justices may order that a report or further information be obtained in respect of that person so that they or the other justices to whom that person is remanded to be sentenced, as the case may be, may be better informed as to the sentence that they should impose on him.

(3)  Where justices remand a person under subsection (1) to be sentenced by other justices, it is not necessary for those other justices to hear evidence as to the commission of the offence of which that person was found guilty by the first-mentioned justices, except in so far as those other justices may consider that that evidence will assist them in determining the sentence that should be imposed on him.

50D.   Vexatious litigants

[Section 50D Inserted by No. 65 of 1994, s. 4 ]

(1)  Where a person is declared to be a vexatious litigant under an order in force under section 194G of the Supreme Court Civil Procedure Act 1932 , that person may not, without the leave of the Chief Magistrate or the Deputy Chief Magistrate, institute any proceedings in a court of summary jurisdiction.

(2)  If proceedings are pending in a court of summary jurisdiction when an order is made as mentioned in subsection (1) , those proceedings are taken to be stayed unless leave is given as mentioned in that subsection.

(3)  Where proceedings pending in a court of summary jurisdiction are taken to be stayed and the person declared to be a vexatious litigant has not applied for, or has not been granted, leave to proceed in those proceedings, any other party to those proceedings may apply to a magistrate for an order for the costs incurred by that party in those proceedings.

PART VII - Proceedings on Indictable Offences

Division 1 - Proceedings where indictment filed

51.   Certificate where indictment filed

Where an indictment is filed in the Supreme Court by the Attorney-General, or other authorized officer, against a person then at large, whether that person is bound by any recognizance to appear to answer the indictment or is not so bound, the proper officer of the Supreme Court shall, at any time thereafter, if that person has not already appeared and pleaded to the indictment, grant to the officer filing the indictment, upon his application, a certificate that the indictment has been filed.

52.   Summons or warrant may be issued against person indicted

[Section 52 Substituted by No. 108 of 1974, s. 15 ]Where a certificate granted under section 51 is produced to a justice, he shall –

(a) if the person producing the certificate requests him to do so, issue a summons to the person against whom the relevant indictment is filed, ordering him to appear before the Supreme Court at the day, time, and place specified in the summons and to be there dealt with; or

(b) if no such request is made to the justice, issue his warrant to apprehend that last-mentioned person.

53.   Committal

Where a person is by virtue of a warrant issued under section 52 apprehended and brought before justices, and it is proved upon oath before them that the person apprehended is the person indicted, he shall, without further inquiry or examination, be committed for trial.

54.   Detainer of prisoner in gaol

If a person so indicted as mentioned in section 51 is, at the time of the production of the certificate under that section to the justice, confined in gaol for any other offence than that charged in the indictment, the justice, upon proof upon oath that the person indicted and the person so confined are one and the same, shall issue his warrant directed to the gaoler of the gaol in which the person indicted is then confined, commanding him to detain that person in his custody until he is lawfully removed therefrom for the purpose of being tried upon the indictment, or until he is otherwise removed or discharged out of his custody by due course of law.

Division 2 - Examination and committal

55.   Disobedience of summons

When a person charged with an indictable offence, and against whom a summons has been issued, does not appear before the justices at the time and place mentioned in the summons, and it is made to appear to the justices that the summons was duly served a reasonable time before the time therein appointed for appearing to it, then the justices, or one of them, may issue a warrant to apprehend the defendant and bring him before justices to answer the complaint and be further dealt with according to law.

56.   Exclusion of strangers

(1)  The room or place in which justices take the examination and statements in a case where a person is charged with an indictable offence is not an open court for that purpose, and the justices may, if it appears to them that the ends of justice will be thereby best answered, order that no person may have access to, or be, or remain, in that room or place without their permission.

(2)  The power to exclude any person shall not be exercised for the purpose of excluding any counsel or attorney for the prosecution, or other person conducting the prosecution, the counsel or attorney of any person then being in that place as a defendant, or the defendant himself.

56A.   Procedure when brought before justices

[Section 56A Inserted by No. 33 of 1963, s. 3 ][Section 56A Amended by No. 41 of 1991, s. 4 ][Section 56A Amended by No. 38 of 1995, s. 5 ][Section 56A Amended by No. 41 of 1991, s. 4 ][Section 56A Amended by No. 108 of 1974, s. 38 and Sched. 1 ]

(1)  [Section 56A Subsection (1) amended by No. 108 of 1974, s. 16 ][Section 56A Subsection (1) amended by No. 45 of 1986, s. 9 ][Section 56A Subsection (1) substituted by No. 34 of 1989, s. 4 ]When a person charged with an indictable offence first appears before justices, the justices shall, if that person is not represented by counsel –

(a) cause the charge to be read to the person or state to the person in simple terms with what he or she is charged; and

(b) explain to the person his or her rights and duties under this Act in respect of the charge; and

(c) inform the person that he or she is entitled to have the proceedings in respect of the charge adjourned in order to consider a course of action or to obtain legal advice in relation to the charge.

(1A)  [Section 56A Subsection (1A) inserted by No. 34 of 1989, s. 4 ]Nothing in subsection (1) requires the justices to explain to the person referred to in that subsection the pleas which may be entered under subsection (3) .

(2)  [Section 56A Subsection (2) amended by No. 108 of 1974, s. 38 and sched ][Section 56A Subsection (2) amended by No. 45 of 1986, s. 9 ][Section 56A Subsection (2) substituted by No. 34 of 1989, s. 4 ]If a defendant, whether represented by counsel or not, does not require an adjournment or, if the proceedings are adjourned, on the resumption of the proceedings –

(a) the charge shall be read to the defendant unless the defendant waives that requirement; and

(b) the defendant shall be called upon to plead to the charge.

(2A)  [Section 56A Subsection (2A) inserted by No. 34 of 1989, s. 4 ]Notwithstanding subsection (2) , the justices may at any time adjourn the proceedings to another date without calling upon the defendant to plead to the charge.

(3)  [Section 56A Subsection (3) amended by No. 108 of 1974, s. 38 and Sched. 1 ]The defendant shall then plead –

(a) that he is guilty of the crime charged, or with the consent of the justices and the prosecutor of any other crime of which he might be convicted on an indictment for the crime charged;

(b) that he is not guilty;

(c) that further proceedings may not be had on the complaint; or

(d) that he has cause to show why he should not be convicted of the charge.

(4)  [Section 56A Subsection (4) amended by No. 108 of 1974, s. 38 and Sched. 1 ]If he pleads as provided in subsection (3) (c) he shall state his ground and the justices shall before proceeding further hear and determine the plea and –

(a) amend the complaint;

(b) dismiss the complaint; or

(c) overrule the plea.

(5)  If the complaint is amended or the plea is overruled, the defendant shall be asked to plead to the amended complaint or to plead further, as the case requires.

(6)  [Section 56A Subsection (6) amended by No. 108 of 1974, s. 16 ][Section 56A Subsection (6) substituted by No. 41 of 1991, s. 4 ]If the defendant pleads not guilty or cause to show, the defendant shall be asked to choose one of the following courses:

(a) [Section 56A Subsection (6) amended by No. 62 of 2000, Sched. 1, Applied:14 Nov 2000] .  .  .  .  .  .  .  .  

(b) [Section 56A Subsection (6) amended by No. 62 of 2000, Sched. 1, Applied:14 Nov 2000] that the defendant does not dispute that an order for committal be made and requires the depositions of one or more witnesses to be taken before a justice before the order for committal is made;

(c) that the defendant does not require any depositions of witnesses to be taken before a justice.

(6AA)  [Section 56A Subsection (6AA) inserted by No. 38 of 1995, s. 5 ]For the purposes of subsection (6) , the taking of a deposition of a witness who is an affected child means the taking of the deposition in accordance with section 57A .

(6A)  [Section 56A Subsection (6A) inserted by No. 108 of 1974, s. 16 ][Section 56A Subsection (6A) substituted by No. 45 of 1986, s. 9 ][Section 56A Subsection (6A) amended by No. 41 of 1991, s. 4 ][Section 56A Subsection (6A) amended by No. 38 of 1995, s. 5 ]For the purposes of subsection (6) , the taking of a deposition of a witness other than an affected child means –

(a) the examination of the witness before a justice;

(b) the reduction to writing or recording, by mechanical means on to tapes or other apparatus as may be directed by the justice, of the statement made by the witness as a result of that examination; and

(c) the signature of that statement by the witness when it is reduced to writing or, where the statement of the witness is recorded by mechanical means on to tapes or other apparatus, the certification of the transcript of the recording.

(6B)  [Section 56A Subsection (6B) inserted by No. 45 of 1986, s. 9 ]For the purposes of subsection (6A) (c) , certification, in relation to a transcript of a recording, means the certification by the person who transcribed the recording that the transcript is a true and accurate record of the recording.

(6C)  [Section 56A Subsection (6C) inserted by No. 41 of 1991, s. 4 ]At the examination of a person in accordance with subsection (6) (a) or (b) the defendant shall be present unless the justice permits the examination to proceed in the absence of that person.

(7)  If the defendant on being asked to plead stands mute or does not answer directly to the charge he shall be deemed to plead not guilty.

(8)  [Section 56A Subsection (8) substituted by No. 108 of 1974, s. 16 ][Section 56A Subsection (8) amended by No. 41 of 1991, s. 4 ]If the defendant, on being asked to make a choice under subsection (6) , stands mute or does not make a definite choice, he shall be deemed to have made the requisition set forth in paragraph (a) of that subsection.

(9)  [Section 56A Subsection (9) added by No. 22 of 1973, s. 2 ][Section 56A Subsection (9) amended by No. 108 of 1974, s. 38 and Sched. 1 ]If the defendant pleads not guilty, or pleads cause to show, the justices shall then warn the defendant that if he is committed for trial he may not be permitted at that trial to give evidence of an alibi or to call witnesses in support of an alibi unless he gives the prosecution written notice of that alibi and of those witnesses within the time provided in the Criminal Code , and shall advise the defendant that the form giving such notice will be made available to him on request to the clerk of petty sessions.

(10)  [Section 56A Subsection (10) added by No. 108 of 1974, s. 16 ]A plea of guilty for the purposes of this section –

(a) shall be endorsed on the complaint; and

(b) shall be in the following form:

Form

and the defendant shall sign the plea or shall affix his mark thereto, which mark shall be certified to by the justices.

57.   Mode of taking evidence

[Section 57 Substituted by No. 45 of 1986, s. 10 ]

(1)  [Section 57 Subsection (1) amended by No. 33 of 1963, s. 4 ][Section 57 Subsection (1) amended by No. 108 of 1974, s. 38 and sched ]Except in a case in which the defendant has not required that the depositions of witnesses be taken before justices where a person is charged with an indictable offence, and not tried summarily, the depositions of the witnesses shall be reduced to writing or recorded by mechanical means on to tapes or other apparatus as may be directed by the justices.

(2)  [Section 57 Subsection (2) added by No. 33 of 1963, s. 4 ]Where the deposition of a witness is reduced to writing it shall be read over to, or by, the witness as the justices may direct and shall be signed by the witness and by the justices.

(3)  Where the deposition of a witness is recorded by mechanical means on to tapes or other apparatus, the certified transcript of the recording shall be deemed to be the deposition of that witness.

(4)  [Section 57 Subsection (4) amended by No. 66 of 1995, s. 8 ][Section 57 Subsection (4) amended by No. 115 of 1986, s. 6 ]Notwithstanding the provisions of section 56A (6A) , where a witness has made a statutory declaration or an affidavit, the declaration or affidavit may be received as his or her evidence and signed deposition and shall be signed by the justices, but the justices, if they think just cause exists for doing so, may, or if the opposite party requests shall, summon the witness to attend as a witness for further examination or cross-examination.

(5)  For the purposes of subsection (3) , certified, in relation to the transcript of a recording, means certified by the person who transcribed the recording as being a true and accurate record of the recording.

57A.   Depositions of affected children

[Section 57A Inserted by No. 38 of 1995, s. 6 ]

(1)  If a defendant requires, under section 56A (6) (a) or (b) , the deposition of witnesses to be taken before a justice –

(a) a witness who is an affected child must not be examined before a justice; and

(b) the deposition of the affected child is the presentation of a copy of a written, electronic or other recording of a statement made by the affected child accompanied by a certificate of a kind referred to in subsection (4) .

(2)  Notwithstanding subsection (1) , a justice may summon an affected child who is required to make a deposition for the purposes of section 56A (6) to attend as a witness for examination or further examination (including cross-examination) if the justice is satisfied that there exist special circumstances which justify the child being so examined.

(3)  If an affected child attends as a witness after being summoned under subsection (2) , the deposition of the affected child consists of any deposition referred to in subsection (1) previously made by the child and the deposition of the child taken before a justice in accordance with section 57 .

(4)  A certificate is evidence of the facts stated in it if it –

(a) is on or accompanying a copy of a recording of an affected child's statement; and

(b) purports to be made by a person who was present when the child made the statement; and

(c) specifies that the copy is a true and accurate copy of the recording.

58.   Procedure on adjournment

[Section 58 Substituted by No. 108 of 1974, s. 17 ]

(1)  If for any reason the proceedings on a complaint of an indictable offence are adjourned, the justices shall –

(a) remand the defendant in custody, a justice issuing his warrant accordingly;

(b) admit the defendant to bail; or

(c) order the defendant orally to appear before justices at the time and place to which the proceedings are adjourned.

(2)  [Section 58 Subsection (2) amended by No. 45 of 1986, s. 11 ][Section 58 Subsection (2) amended by No. 71 of 1993, s. 6 ]Where the defendant is remanded in custody, the justices shall inform the defendant, and the warrant for his remand shall provide that the defendant shall be so remanded for a period (not exceeding 28 clear days at any one time) and then be brought before justices as specified in the warrant.

(3)  [Section 58 Subsection (3) amended by No. 45 of 1986, s. 11 ][Section 58 Subsection (3) omitted by No. 34 of 1989, s. 5 ].  .  .  .  .  .  .  .  

(4)  An order under subsection (1) (c) has the same effect as a summons in similar terms.

59.   

[Section 59 Repealed by No. 108 of 1974, s. 17 ].  .  .  .  .  .  .  .  

60.   

[Section 60 Repealed by No. 108 of 1974, s. 18 ].  .  .  .  .  .  .  .  

61.   

[Section 61 Amended by No. 33 of 1963, s. 5 ][Section 61 Repealed by No. 62 of 2000, Sched. 1, Applied:14 Nov 2000] .  .  .  .  .  .  .  .  

62.   Committal of defendant

[Section 62 Substituted by No. 108 of 1974, s. 19 ][Section 62 Amended by No. 34 of 1989, s. 6 ][Section 62 Substituted by No. 41 of 1991, s. 5 ]

(1)  Where a defendant has pleaded not guilty or cause to show and –

(a) [Section 62 Subsection (1) amended by No. 62 of 2000, Sched. 1, Applied:14 Nov 2000] .  .  .  .  .  .  .  .  

(b) [Section 62 Subsection (1) amended by No. 62 of 2000, Sched. 1, Applied:14 Nov 2000] has not disputed that an order for committal be made, and has required the depositions of one or more witnesses to be taken before a justice and those depositions have been taken; or

(c) the defendant has not required any depositions of witnesses to be taken before a justice –

the justice shall order the defendant to be committed for trial in the Supreme Court on a day during the next criminal sitting of that Court, and in the meantime shall –

(d) by warrant, remand the defendant in custody, to be safely kept so remanded until he or she is delivered in due course of law; or

(e) admit the defendant to bail.

(2)  [Section 62 Subsection (2) added by No. 10 of 1994, s. 7 and Sched. 2 ]If, at any time before the day to which a defendant is committed for trial in the Supreme Court, a magistrate is of opinion that he or she should be released on bail, the magistrate may admit the defendant to bail.

63.   Defendant pleading guilty

[Section 63 Substituted by No. 108 of 1974, s. 19 ]

(1)  Where a defendant has pleaded guilty as provided in section 56A , the justices shall commit the defendant to the Supreme Court for sentence.

(2)  So far as they are applicable, all the provisions of this Act relating to committal for trial apply to committal for sentence, and bail may be similarly granted and witnesses be similarly bound to appear and give evidence, but there shall be added to the condition of the recognizance to give evidence a proviso that, if the defendant is sentenced without trial in respect of the offence of which he has pleaded guilty, the recognizance shall be void.

(3)  [Section 63 Subsection (3) amended by No. 33 of 1982, s. 6 ]For the purposes of this section, the Supreme Court –

(a) may be held by any judge at any time, notwithstanding that no rule or order for the purpose has been made under section 11 of the Supreme Court Act 1887 ;

(b) has jurisdiction over the defendant so committed for sentence as if he had appeared and pleaded guilty to an indictment for the offence set forth in accordance with section 56A (10) ; and

(c) may, subject to subsection (5) , proceed as is done at criminal sittings so as finally to dispose of the charge and all incidental matters.

(4)  [Section 63 Subsection (4) amended by No. 45 of 1986, s. 12 ]For the purposes of this section, a defendant so committed shall be brought before the Supreme Court as soon as practicable not less than 10 days after his committal, and, if no judge is available or likely to be available at the place to which he is committed during that period, the Registrar of the Supreme Court shall arrange for him to be brought before the Supreme Court at Hobart or Launceston as soon as practicable.

(5)  If the defendant is sentenced to imprisonment, the judge by whom the defendant is sentenced shall issue a warrant of commitment, directing that the defendant shall be conveyed to a gaol to be named in the warrant and be there detained for such time as the warrant shall direct; and the sentence takes effect from the date of its signing, unless the judge otherwise directs.

(6)  If, upon being brought up for sentence the defendant withdraws his plea of guilty, the court, on application on behalf of the Attorney-General, may direct the defendant to be tried at a criminal sitting of the Supreme Court and, in the meantime, may remand him in custody, admit him to bail, or may make such other order in the matter as the court deems right or just.

64.   

[Section 64 Repealed by No. 10 of 1994, s. 7 and Sched. 2 ].  .  .  .  .  .  .  .  

65.   

[Section 65 Repealed by No. 10 of 1994, s. 7 and Sched. 2 ].  .  .  .  .  .  .  .  

66.   Warrant of deliverance

When justices admit to bail a person then in a gaol charged with an offence for which he is so admitted to bail, they shall send to or cause to be lodged with the gaoler a warrant of deliverance, requiring the gaoler to discharge the person so admitted to bail if he is detained for no other lawful cause, and when the warrant of deliverance is delivered to or lodged with the gaoler, he shall forthwith comply.

67.   Restriction on bail

[Section 67 Amended by No. 77 of 1968, s. 10 and Sched. 1 ][Section 67 Amended by No. 115 of 1986, s. 8 ]No person above the age of 17 years charged with treason or murder may be admitted to bail except by order of the Supreme Court or a judge.

68.   Recognizance of witnesses, &c.

The justices before whom a witness is examined may bind him by recognizance, with or without sureties, in such sum as they may think fit, to appear at the court at which the defendant is to be tried, then and there to give evidence against or for the defendant.

69.   Power of justices to commit refractory witnesses

If a witness refuses to enter into a recognizance when required under section 68 , the justices may, by warrant, commit him to gaol, there to be safely kept until after the trial of the defendant, unless in the meantime he duly enters into the required recognizance before a justice.

69A.   Witnesses where no depositions taken

[Section 69A Inserted by No. 33 of 1963, s. 8 ][Section 69A Amended by No. 108 of 1974, s. 21 ][Section 69A Substituted by No. 41 of 1991, s. 6 ]

(1)  Where, in accordance with section 62 , a justice has ordered that a defendant be committed for trial in the Supreme Court, the Crown or the defendant may subsequently apply to a justice to summon a person who may have been summoned in accordance with section 41 .

(2)  [Section 69A Subsection (2) amended by No. 38 of 1995, s. 7 ]On receipt of an application made under subsection (1) in respect of a person who is not an affected child, a justice must not issue a summons unless –

(a) the person making the application for the summons has first obtained the leave of the Supreme Court to do so; or

(b) the application is made by the Crown in respect of a person to be called by the Crown as a witness and the justice is satisfied that that person is in poor health or about to leave the State permanently; or

(c) the application is made by the defendant in respect of a defence witness the defendant requires the Crown to call as a witness at trial and the Crown has declined to call that witness; or

(d) the application is made by the defendant in respect of evidence proposed by the Crown to be adduced at trial where that evidence was not disclosed at the time the order of committal was made; or

(e) the justice is satisfied that the Crown and the defendant agree that the summons should be issued.

(2A)  [Section 69A Subsection (2A) inserted by No. 38 of 1995, s. 7 ]On receipt of an application made under subsection (1) in respect of a person who is an affected child, a justice must not issue a summons unless the person making the application has first obtained the leave of the Supreme Court to do so.

(2B)  [Section 69A Subsection (2B) inserted by No. 38 of 1995, s. 7 ]The Supreme Court must not grant leave for a person to apply under subsection (1) for a summons in respect of an affected child unless it is satisfied that there exist special circumstances that justify the summoning of the child.

(3)  Section 41 applies in respect of a person summoned to appear in accordance with this section.

(4)  On the appearance of a person summoned to appear in accordance with this section, the Crown or the defendant may apply to the justice –

(a) for the examination of that person; or

(b) to bind the person by recognizance, with or without sureties, in such sum as the justice thinks fit, to appear at the court at which the defendant's matter is to be determined –

and the justice may order accordingly.

(5)  [Section 69A Subsection (5) amended by No. 38 of 1995, s. 7 ]At the examination of a person in accordance with subsection (4) (a) –

(a) the defendant shall be present unless the justice permits the examination to proceed in the absence of the defendant; and

(b) sections 57 and 57A shall apply in respect of the depositions of that person.

(6)  An application may be made in respect of a person under subsection (4) (b) whether or not that person has been examined under subsection (4) (a) .

70.   Discharge of persons committed for trial

[Section 70 Subsection (2) amended by No. 43 of 1991, s. 5 and Sched. 1 ]

(1)  Where a person is in gaol having been committed thereto by a justice to take his trial for an indictable offence, and a Crown Law Officer, within the meaning of the Criminal Code , decides upon the evidence before him not to file an indictment against that person for that offence, the Crown Law Officer may issue a warrant under his hand to the gaoler in whose custody that person is to release that person forthwith.

(2)  [Section 70 Subsection (2) amended by No. 55 of 1965, s. 5 ]A gaoler to whom a warrant under this section is delivered shall forthwith and without fee or reward release the prisoner named in the warrant from imprisonment in respect of the offence therein mentioned.

Penalty:  Fine not exceeding 5 penalty units.

PART VIII - Crimes Triable Summarily

71.   Petty crimes triable summarily

[Section 71 Substituted by No. 108 of 1974, s. 22 ]

(1)  [Section 71 Subsection (1) substituted by No. 75 of 1983, s. 4 ][Section 71 Subsection (1) amended by No. 45 of 1986, s. 13 ]Where a person is brought before justices upon a complaint for an offence under –

(a) one of the sections of the Criminal Code referred to in Schedule 2 in respect of property the value of which does not exceed $500; or

(b) section 278 or 279 of the Criminal Code in respect of a document, seal, or die which relates to an amount not exceeding $500, whether as the consideration for a transaction or dealing or otherwise –

the section creating that offence shall, unless the justices think that the offence should be dealt with in the Supreme Court, be deemed, subject to subsection (2) , to have created a simple offence, and the complaint shall be dealt with accordingly.

(2)  [Section 71 Subsection (2) amended by No. 45 of 1986, s. 13 ]An offence mentioned in subsection (1) may be dealt with in the Supreme Court unless –

(a) the person arraigned therefor has been convicted therefor;

(b) a complaint against him therefor has been dismissed upon summary trial by virtue of that subsection; or

(c) [Section 71 Subsection (2) amended by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] a complaint against him therefor has been dismissed under the Sentencing Act 1997 or he has been released on probation under that Act on the hearing of proceedings relating to such an offence.

72.   Other crimes triable summarily

[Section 72 Substituted by No. 108 of 1974, s. 22 ]

(1)  [Section 72 Subsection (1) amended by No. 75 of 1983, s. 5 ][Section 72 Subsection (1) amended by No. 45 of 1986, s. 14 ]Where a person is brought before justices upon a complaint for an offence –

(a) under a section of the Criminal Code referred to in Part I of Schedule 3 ;

(b) under a section of the Criminal Code referred to in Part II of that Schedule, in respect of property the value of which exceeds $500 and does not exceed $5 000;

(c) [Section 72 Subsection (1) amended by No. 12 of 2000, s. 4, Applied:28 Apr 2000] under section 244 or 245(a)(iii) of the Criminal Code , except where it is alleged in the complaint that–

(i) in the circumstances in which the offence was committed, property to the value of more than $5 000 was stolen; or

(ii) in the commission of the offence, the defendant intended to commit a crime other than stealing; or

(d) under section 278 or 279 of the Criminal Code in respect of a document, seal, or die which relates to an amount exceeding $500 and not exceeding $5 000, whether as the consideration for a transaction or dealing or otherwise –

instead of asking him to plead under section 56A , the justices may, in the prescribed form of words or in words of like import, ask the defendant if he is willing to be tried by the justices instead of by jury and, if that person, or, if he is under the age of 17 years, his parent or guardian, does not object to his being tried by the justices, the section creating the offence shall be deemed to have created a simple offence and the complaint shall be dealt with accordingly, subject to the provisions of this section.

(2)  [Section 72 Subsection (2) amended by No. 45 of 1986, s. 14 ]In a case to which subsection (1) applies, if the complainant, before the defendant is asked whether he objects to being tried by the justices, shows to the justices that the defendant –

(a) is under committal to the Supreme Court for trial or sentence; or

(b) has been charged with an offence for which he may be so committed, the proceedings in respect of which are pending or not concluded –

and requests that the procedure provided by this section shall not apply, the justices may proceed as if this section had not been enacted.

72A.   Attempts triable summarily

[Section 72A Inserted by No. 108 of 1974, s. 22 ]

(1)  An attempt to commit an offence mentioned in section 71 (1) or section 72 (1) is an offence triable and punishable in the same way as the offence attempted.

(2)  On a complaint of an offence referred to in subsection (1) , the defendant may, where the evidence so requires, be convicted of an attempt to commit the offence.

(3)  On a complaint of attempting to commit an offence referred to in subsection (1) , the defendant may, where the evidence so requires, be convicted of the offence that he is alleged to have attempted to commit.

72B.   Hearings under this Part

[Section 72B Inserted by No. 108 of 1974, s. 22 ]

(1)  Where a charge is heard and determined summarily under this Part –

(a) the complaint shall be deemed good and sufficient for the purposes of Part VI ; and

(b) the defendant or any one of joint defendants may, if he is found not guilty of the offence with which he is charged, be convicted of any other offence of which he might be convicted on an indictment charging the same facts if it is established by the evidence to have been committed by him.

(2)  [Section 72B Subsection (2) amended by No. 45 of 1986, s. 15 ]If, during the hearing of a charge to be determined under this Part, the justices consider for any reason that the charge should be dealt with in the Supreme Court, they shall –

(a) if they have not convicted the defendant, either abandon the hearing and begin again in accordance with Part VII or complete it and convict or discharge the defendant and if they convict him commit him to the Supreme Court for sentence; or

(b) if they have convicted the defendant, commit him to the Supreme Court for sentence.

(3)  Where a person has been committed for sentence after conviction as provided in subsection (2) –

(a) section 63 applies as nearly as possible as if he had pleaded guilty when charged with his offence, but so that the conviction stands, unless it is subsequently quashed by the Supreme Court; and

(b) the justices shall transmit to the Registrar of the Supreme Court a statement from the record made by them pursuant to section 50A containing particulars of the facts found by them, together with a report of their reasons for committing.

(4)  [Section 72B Subsection (4) omitted by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] .  .  .  .  .  .  .  .  

72C.   Limitation excluded

[Section 72C Inserted by No. 108 of 1974, s. 22 ] Section 26 does not apply to complaints dealt with under this Part.

PART IX - Proceedings in Case of Simple Offences and Breaches of Duty

72D.   Summons and complaint evidence in certain cases

[Section 72D Inserted by No. 66 of 1975, s. 2 ]

(1)  [Section 72D Subsection (1) substituted by No. 8 of 1994, s. 6 ]If a person who is served with a summons to answer a complaint of an offence or breach of duty prescribed for the purposes of section 144 (4) (ca) –

(a) does not file a plea of not guilty and does not appear as summoned; or

(b) files a plea of not guilty but does not, after being given notice by a justice or clerk of petty sessions of the time and place fixed for the hearing of the complaint, appear at that hearing; or

(c) pleads not guilty in answer to the complaint, either in person or through counsel, but does not appear at the time and place fixed for the hearing of the complaint –

the complaint and summons may be received in evidence as prima facie proof of the matters contained in them.

(2)  [Section 72D Subsection (2) amended by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] [Section 72D Subsection (2) substituted by No. 45 of 1986, s. 16 ]Notwithstanding subsection (1) , a person shall not be imprisoned or sentenced to a community service order, within the meaning of the Sentencing Act 1997 , if that person is not present at the hearing of the complaint referred to in that subsection.

73.   Accessories

(1)  Subject to any contrary intention in the Act creating the offence, where a simple offence is committed, each of the following persons is deemed to be a party to, and to be guilty of, the offence, and may be charged with actually committing it, namely:

(a) a person who actually commits the offence;

(b) a person who does any act or makes any omission for the purpose of enabling or aiding another person to commit the offence;

(c) a person who abets another person in committing the offence;

(d) a person who instigates another person to commit the offence.

(2)  A person who instigates another person to do an act or make an omission of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted a simple offence on his part, is guilty of the same offence as if he had himself done the act or made the omission, and may be charged with himself committing the offence.

(3)  A person who is alleged to have instigated, aided, or abetted the commission of a simple offence may be convicted upon a complaint charging him with having committed the offence, or upon a complaint charging him with having instigated, aided, or abetted, as the case may be, the commission thereof.

74.   Attempts

(1)  Where, upon the hearing of a complaint for a simple offence, the complete commission of the offence charged is not proved but the evidence establishes that the defendant attempted to commit that offence, he may be convicted of such an attempt.

(2)  An attempt to commit a simple offence is an act or omission done or made with intent to commit that offence, and forming part of a series of events which if it were not interrupted would constitute the actual commission of the offence.

(3)  The offence of attempting to commit a simple offence may be committed, although the offender voluntarily desists from the actual commission of the simple offence itself, and whether under the circumstances it was possible to commit that simple offence or not.

(4)  The point at which a series of events as mentioned in subsection (2) begins depends upon the circumstances of each particular case.

(5)  Whether an act or omission is, or is not, too remote to constitute an attempt to commit a simple offence is a question of law.

(6)  [Section 74 Subsection (6) added by No. 115 of 1986, s. 9 ]Where, upon the hearing of a complaint for an attempt to commit a simple offence, the evidence establishes that the defendant has completed the commission of the simple offence, he may be convicted of the simple offence.

(7)  [Section 74 Subsection (7) added by No. 115 of 1986, s. 9 ]Where a person has been convicted of an attempt to commit a simple offence, he is not liable to be tried for the simple offence of which he was so convicted of having attempted to commit.

74A.   Procedure where defendant not represented

[Section 74A Substituted by No. 34 of 1989, s. 8 ]

(1)  When a person charged with a simple offence to which he or she has not entered a plea in writing authorized by rules made under section 144 first appears before justices, the justices shall, if that person is not represented by counsel –

(a) cause the charge to be read to the person or state to the person in simple terms with what he or she is charged; and

(b) inform the person that he or she is entitled to have the proceedings in respect of the charge adjourned in order to consider a course of action or to obtain legal advice in relation to the charge.

(2)  Nothing in subsection (1) requires the justices to explain to the person referred to in that subsection the pleas which may be entered under subsection (5) .

(3)  If a defendant, whether represented by counsel or not, does not require an adjournment or, if the proceedings are adjourned, on the resumption of the proceedings –

(a) the charge shall be read to the defendant unless the defendant waives that requirement; and

(b) the defendant shall be called upon to plead to the charge.

(4)  Notwithstanding subsection (3) , the justices may at any time adjourn the proceedings to another date without calling upon the defendant to plead to the charge.

(5)  The defendant may plead –

(a) guilty of the offence charged or, with the consent of the justices and the prosecutor, of any other offence of which the defendant might be convicted on the complaint; or

(b) not guilty; or

(c) that further proceedings ought not to be had on the complaint; or

(d) that the defendant has cause to show why he or she should not be convicted of the charge.

(6)  A defendant who pleads as provided in subsection (5) (c) , shall state the grounds for making the plea and the justices shall, before proceeding further, hear and determine the plea and –

(a) amend the complaint; or

(b) dismiss the complaint; or

(c) overrule the plea.

(7)  If the complaint is amended or the plea is overruled, the defendant shall be asked to plead to the amended complaint or to plead further, as the case requires.

(8)  A defendant who, on being asked to plead, stands mute or does not answer directly to the charge shall be deemed to plead not guilty.

74B.   Procedure on adjournment

[Section 74B Inserted by No. 108 of 1974, s. 23 ]

(1)  If for any reason a complaint is not heard and determined on the day on which the defendant is first brought before a court of summary jurisdiction in respect of it and an adjournment is ordered, the court shall –

(a) remand the defendant in custody, a justice issuing his warrant accordingly;

(b) admit the defendant to bail; or

(c) order the defendant orally to appear before a court of petty sessions at the time and place to which the proceedings are adjourned.

(2)  [Section 74B Subsection (2) amended by No. 45 of 1986, s. 17 ]Where the defendant is remanded in custody, the court shall inform the defendant, and the warrant shall provide that the defendant shall be kept there for a period (not exceeding 28 clear days at any one time) and then be brought before a court of petty sessions as specified in the warrant.

(3)  [Section 74B Subsection (3) substituted by No. 45 of 1986, s. 17 ][Section 74B Subsection (3) substituted by No. 57 of 1987, s. 7 ][Section 74B Subsection (3) omitted by No. 34 of 1989, s. 9 ].  .  .  .  .  .  .  .  

(4)  An order under subsection (1) (c) has the same effect as a summons in similar terms.

(5)  The provisions of this section apply in respect of any adjournment of the proceedings on a complaint of a simple offence.

74BA.   Discharge after conviction

[Section 74BA Inserted by No. 15 of 1992, s. 4 ]

(1)  Where justices convict a person of an offence they may, having regard to the circumstances, the nature of the offence and the character of the person, determine the proceedings by discharging the person.

(2)  In discharging a person, justices may exercise any other powers that would have been available had the person not been so discharged.

(3)  This section does not apply in relation to any offence –

(a) for which a mandatory penalty is imposed under any Act or regulations; or

(b) for which a minimum and maximum penalty is imposed under any Act or regulations; or

(c) in respect of which a court must take certain action under any Act or regulations.

74C.   

[Section 74C Inserted by No. 108 of 1974, s. 23 ][Section 74C Subsection (1) amended by No. 15 of 1988, s. 3 ][Section 74C Subsection (1) substituted by No. 73 of 1975, s. 34 and Sched. 1 ][Section 74C Subsection (2A) inserted by No. 115 of 1986, s. 10 ][Section 74C Subsection (6) amended by No. 45 of 1986, s. 18 ][Section 74C Subsection (10A) inserted by No. 115 of 1986, s. 10 ][Section 74C Repealed by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] .  .  .  .  .  .  .  .  

74D.   

[Section 74D Inserted by No. 15 of 1992, s. 5 ][Section 74D Repealed by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] .  .  .  .  .  .  .  .  

75.   

[Section 75 Substituted by No. 108 of 1974, s. 24 ][Section 75 Repealed by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] .  .  .  .  .  .  .  .  

76.   

[Section 76 Amended by No. 55 of 1965, s. 5 ][Section 76 Amended by No. 45 of 1986, s. 19 ][Section 76 Amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 76 Repealed by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] .  .  .  .  .  .  .  .  

76A.   

[Section 76A Inserted by No. 108 of 1974, s. 25 ][Section 76A Subsection (1) amended by No. 115 of 1986, s. 11 ][Section 76A Repealed by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] .  .  .  .  .  .  .  .  

77.   Costs

(1)  [Section 77 Subsection (1) amended by No. 108 of 1974, s. 26 ]Where justices make a conviction or order in favour of the complainant they may, in their discretion, order that the defendant shall pay to the complainant the whole or a specified proportion of his costs of and incidental to his complaint.

(2)  [Section 77 Subsection (2) amended by No. 108 of 1974, s. 26 ]Where justices dismiss the complaint or make an order in favour of the defendant they may, in their discretion, order that the complainant shall pay to the defendant the whole or a specified proportion of his costs of and incidental to his defence.

(2A)  [Section 77 Subsection (2A) inserted by No. 107 of 1976, s. 8 ]The provisions of subsection (2) apply only in the case of a complaint for a breach of duty.

(3)  [Section 77 Subsection (3) substituted by No. 108 of 1974, s. 26 ][Section 77 Subsection (3) amended by No. 45 of 1986, s. 20 ][Section 77 Subsection (3) substituted by No. 40 of 1999, s. 6, Applied:16 Jul 1999] Where costs are allowed under subsection (1) or subsection (2) they shall be assessed by the justices or, when directed by the justices, by the clerk of petty sessions.

(3A)  [Section 77 Subsection (3A) inserted by No. 40 of 1999, s. 6, Applied:16 Jul 1999] When costs are assessed by the clerk of petty sessions, the clerk must have regard to the same matters as justices would have regard to if the justices were assessing the costs, including the amount that could have been awarded in respect of witnesses' expenses under section 45 .

(4)  [Section 77 Subsection (4) substituted by No. 108 of 1974, s. 26 ]An assessment of costs under subsection (3) –

(a) shall be in writing;

(b) shall be signed by the justices or the clerk of petty sessions, as the case may require;

(c) shall be deemed to be part of the conviction or order of dismissal to which it relates; and

(d) shall comply with such requirements (if any) as are prescribed by the rules made under section 144 .

(5)  The sum allowed for costs in a conviction or order by which a penalty or sum of money is adjudged to be paid shall be recoverable in the same manner and under the same warrants as the penalty or sum of money adjudged to be paid by the conviction or order is recoverable.

(6)  [Section 77 Subsection (6) omitted by No. 108 of 1974, s. 26 ].  .  .  .  .  .  .  .  

(7)  When a case is adjourned, the justices may, in their discretion, order that the costs of, or occasioned by, the adjournment, be paid by any party to any other party.

(8)  [Section 77 Subsection (8) substituted by No. 107 of 1976, s. 8 ]Nothing in this section prejudices or affects the operation of the Costs in Criminal Cases Act 1976 but subsections (3) and (4) of this section apply to the assessment of costs ordered to be paid under that Act.

77A.   Amount of costs

[Section 77A Inserted by No. 8 of 1994, s. 7 ]

(1)  In determining the amount of costs to be granted in an order for costs under this Act, justices may have regard to any scale of costs, fees or expenses prescribed or agreed upon under any enactment.

(2)  Justices who, pursuant to subsection (1) , have regard to any scale of costs, fees or expenses in determining the amount of costs to be granted in an order for costs must specify that scale in the order.

(3)  The clerk of petty sessions must, if directed to do so by justices, tax any costs granted by justices in respect of a matter under this Act.

(4)  A taxation of costs carried out pursuant to subsection (3) may be subject to review by the justices who presided in the proceedings in respect of which the costs were granted.

78.   

[Section 78 Substituted by No. 108 of 1974, s. 27 ][Section 78 Amended by No. 45 of 1983, s. 4 ][Section 78 Amended by No. 121 of 1985, s. 17 ][Section 78 Amended by No. 45 of 1986, s. 21 ][Section 78 jAmended by No. 115 of 1986, s. 12 ][Section 78 Substituted by No. 10 of 1993, s. 5 ][Section 78 Repealed by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] .  .  .  .  .  .  .  .  

79.   

[Section 79 Substituted by No. 108 of 1974, s. 27 ][Section 79 Substituted by No. 10 of 1993, s. 5 ][Section 79 Repealed by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] .  .  .  .  .  .  .  .  

80.   

[Section 80 Substituted by No. 108 of 1974, s. 27 ][Section 80 Substituted by No. 10 of 1993, s. 5 ][Section 80 Subsection (1) amended by No. 66 of 1995, s. 9 ][Section 80 Subsection (4A) inserted by No. 8 of 1994, s. 8 ][Section 80 Repealed by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] .  .  .  .  .  .  .  .  

81.   

[Section 81 Repealed by No. 108 of 1974, s. 27 ][Section 81 Inserted by No. 10 of 1993, s. 5 ][Section 81 Amended by No. 8 of 1994, s. 9 ][Section 81 Repealed by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] .  .  .  .  .  .  .  .  

82.   

[Section 82 Repealed by No. 108 of 1974, s. 27 ][Section 82 Inserted by No. 10 of 1993, s. 5 ][Section 82 Repealed by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] .  .  .  .  .  .  .  .  

83.   

[Section 83 Repealed by No. 108 of 1974, s. 27 ][Section 83 Inserted by No. 10 of 1993, s. 5 ][Section 83 Subsection (2) amended by No. 8 of 1994, s. 10 ][Section 83 Repealed by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] .  .  .  .  .  .  .  .  

84.   

[Section 84 Repealed by No. 108 of 1974, s. 27 ].  .  .  .  .  .  .  .  

85.   

[Section 85 Repealed by No. 108 of 1974, s. 27 ].  .  .  .  .  .  .  .  

85A.   

[Section 85A Repealed by No. 108 of 1974, s. 27 ].  .  .  .  .  .  .  .  

86.   

[Section 86 Repealed by No. 108 of 1974, s. 27 ].  .  .  .  .  .  .  .  

87.   Commitment in other cases

When an order is not for the payment of money, but for the doing of some other act, and directs that in case of the defendant's neglect or refusal to do that act he shall be imprisoned with or without hard labour, then, if the defendant neglects or refuses to do the act, a justice may issue his warrant of commitment of the defendant to gaol, there to be imprisoned, with or without hard labour, as the case may be, for such time as the justice making the order directs.

88.   

[Section 88 Amended by No. 108 of 1974, s. 38 and sched. ][Section 88 Repealed by No. 10 of 1993, s. 6 ].  .  .  .  .  .  .  .  

89.   

[Section 89 Subsection (1) amended by No. 108 of 1974, s. 38 and sched. ][Section 89 Subsection (1) substituted by No. 10 of 1993, s. 7 ][Section 89 Repealed by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] .  .  .  .  .  .  .  .  

90.   

[Section 90 Substituted by No. 108 of 1974, s. 28 ][Section 90 Amended by No. 10 of 1993, s. 8 ][Section 90 Repealed by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] .  .  .  .  .  .  .  .  

91.   

[Section 91 Repealed by No. 108 of 1974, s. 28 ].  .  .  .  .  .  .  .  

92.   

[Section 92 Amended by No. 75 of 1973, s. 2 and Sched. 1 ][Section 92 Repealed by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] .  .  .  .  .  .  .  .  

92A.   

[Section 92A Inserted by No. 33 of 1963, s. 11 ][Section 92A Subsection (1) amended by No. 73 of 1993, Sched. 1, Applied:30 Mar 1998] [Section 92A Subsection (2) amended by No. 108 of 1974, s. 29 ][Section 92A Repealed by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] .  .  .  .  .  .  .  .  

92B.   

[Section 92B Inserted by No. 38 of 1966, s. 2 ][Section 92B Subsection (4) amended by No. 96 of 1976, s. 15 and Sched. II ][Section 92B Subsection (4A) inserted by No. 45 of 1986, s. 22 ][Section 92B Repealed by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] .  .  .  .  .  .  .  .  

92C.   

[Section 92C Inserted by No. 45 of 1986, s. 23 ][Section 92C Repealed by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] .  .  .  .  .  .  .  .  

PART X - Surety of the Peace

93.   Power to require surety

(1)  A justice may require surety of a person when he is required to do so by a person who –

(a) deposes on oath that the person from whom surety is sought will –

(i) do him, his wife or child, or a person under his care or charge bodily harm;

(ii) cause him or any of them to be unlawfully imprisoned;

(iii) burn or injure his house; or

(iv) procure another person to do any of those things –

and that he does not require it out of malice or for vexation; and

(b) satisfies the justice by the evidence of himself or of others that he has just cause for his fear because the person of whom surety is sought has –

(i) threatened so to do; or

(ii) lain in wait for that purpose.

(2)  A justice may require surety of a person when he is –

(a) required so to do by any person who gives him satisfactory evidence on oath that the person from whom surety is sought has –

(i) used provoking or insulting language;

(ii) exhibited an offensive writing or object; or

(iii) done an offensive act to or in the presence of the party complaining, for the purpose of annoyance and provocation, or publicly and to the common annoyance of the Sovereign's subjects; and

(b) of opinion that such conduct is likely to be repeated and may tend to provoke a breach of the peace.

(3)  A justice may require surety of a person when he is –

(a) satisfied by evidence that the person from whom surety is sought has threatened to do, or to procure some other person to do, any act which would –

(i) if done, be punishable as an offence; and

(ii) be calculated to cause serious injury to the complainant, or any person in his care or charge, or to any property of the complainant or such person; and

(b) of opinion that there is just cause for fear that the person so threatening will, if not prevented, carry his threat into execution.

(4)  A justice may require surety of a person when he is satisfied by evidence that the person from whom surety is sought –

(a) has either by word of mouth or letter, challenged another person to fight;

(b) has knowingly been the messenger of any such challenge from another;

(c) has accepted or intends to accept any such challenge; or

(d) intends to fight or to be present aiding or abetting at any such fight or breach of the peace.

(5)  A justice may require surety of a person where that person has by word or writing, incited or attempted to incite another person to take part in a riot, or to commit any other breach of the peace.

(6)  Where a justice is by this section empowered to require surety of a person, he may call on him to enter into recognizance to the Sovereign with or without sureties, as he thinks fit, for keeping the peace.

94.   How application for surety of the peace is to be made

(1)  Where a person applies to a justice to have any other person bound over to keep the peace, the application shall be by way of complaint, to be verified by the oath of the applicant.

(2)  In the complaint the facts upon which the complainant relies in support of his application shall be fully set forth; and, if any of such facts be not within the personal knowledge of the complainant, they shall, if the justice so require, be verified by the corroborative oath of some other person.

(3)  If the justice receiving the complaint, and considering the matter thereof, sees sufficient cause so to do, he shall thereupon issue his warrant, requiring that the person against whom the complaint is made be apprehended and brought before him, or some other justice or justices, to answer to the complaint, and to be further dealt with according to law.

(4)  If the justice is of opinion that the complainant has cause for his application, but that no person or property is in immediate danger from the defendant, he may, if he thinks fit, issue his summons in the first instance to compel the appearance of the defendant.

95.   How application is to be heard

(1)  A complaint for surety of the peace shall be heard and determined in open court, and in the same manner as nearly as a complaint for a simple offence.

(2)  Upon the appearance of the person from whom surety is sought, the complaint shall be read over to him, and, if he has no cause to allege why he should not be bound over to keep the peace, the justice then present may thereupon require him to enter into recognizance accordingly.

(3)  If he has any such cause to allege, he may require the complainant or his witnesses to be examined upon oath, and cross-examine them, and may by way of defence adduce evidence to explain, or controvert the truth of, the facts relied upon by the complainant in support of his application, or to show that the complaint is made for malice only or vexation.

96.   Complaint to be dismissed if preferred from malice only and without just cause of fear

If the justice hearing the complaint is of opinion that the complainant has no just cause of fear, or that the complaint has been made out of malice or for vexation, and without just cause of fear, he shall dismiss the case, and may order the complainant to pay to the defendant such costs as to him shall seem just and reasonable in that behalf.

97.   If complaint reasonable defendant to be required to give security

(1)  [Section 97 Subsection (1) amended by No. 45 of 1986, s. 24 ]If the justice hearing the complaint considers that there are good grounds so to do, he may order the defendant to enter with one or more sureties as to him seems meet into a recognizance to the Queen in such sum as the justice deems sufficient, conditioned that the defendant do keep the peace –

(a) towards the complainant;

(b) towards Her Majesty and all her liege people; or

(c) towards Her Majesty and all her liege people, and especially towards the complainant –

for a time to be fixed by the order not exceeding 2 years from the date of the recognizance.

(2)  A recognizance for the purposes of this Part may be entered into by the principal or any sureties thereto before a justice, and it is not necessary for all the parties to the recognizance to be present at the same time.

98.   Power of justice to order defendant to pay costs

(1)  The costs of the proceedings for surety of the peace shall be paid in the first instance by the complainant; but the justice may, if he thinks fit, order that the defendant pay to the complainant such costs as he deems reasonable.

(2)  Payment of costs which the justice may order to be paid by either party to the other shall be enforced in like manner as costs ordered to be paid under Part IX .

99.   Power of justice to commit defendant until he enters into the required recognizance

(1)  If the defendant refuses or neglects to enter into a recognizance when so required or is unable to find sufficient sureties to the satisfaction of the justice requiring them, the justice may issue his warrant, commanding that the defendant be taken to a gaol, there to be kept until he enters into the recognizance.

(2)  A person shall not be detained in prison under this section for a longer period than he would have been bound under recognizance of the peace if he had entered into the recognizance upon the day of the making of the order.

100.   Right of complainant to require defendant to be bound over to keep the peace

Where a complaint is laid against a person for an assault punishable summarily, the complainant may, in the same complaint require that the defendant be bound over to keep the peace.

101.   Power to require convicted persons to give sureties of the peace in addition to or in lieu of punishment

Wherever, upon the hearing of any complaint for an offence punishable summarily, it appears to the justices, by the evidence, that the defendant has used threats, or done an act for which he might be required to enter into recognizance of the peace, they may, if they think fit, require the defendant to enter into such a recognizance, either in addition to or in lieu of the punishment to which he is liable upon conviction of the offence, and whether the complainant has required sureties of the peace against the defendant or not.

102.   Power of justices, upon sufficient cause, to require persons to give sureties of the peace where no complaint is made

When a person within the view or hearing of a justice uses a threat or other language, or does an act, on proof of which he might on complaint made be required to enter into recognizance of the peace, the justice may forthwith, and without further proof, require that person to enter into such recognizance of the peace as the justice deems sufficient, and in default of his doing may commit him to prison as provided in section 99 .

103.   Power to release persons imprisoned in default of finding sureties if complainant dies

If the person upon whose complaint a justice has required the defendant to find surety of the peace dies, and the defendant is then in prison in default of giving surety, the justice who made the order, if he thinks fit, may order the defendant to be released from custody without giving surety.

104.   Recognizances not to be discharged by release from complainant

No person who has been required to enter into recognizance of the peace is discharged therefrom by a release from the complainant, and if in custody in default of entering into the recognizance, he is not entitled to be liberated in consequence of any such release.

105.   How recognizances of the peace may be forfeited

(1)  Where a recognizance to keep the peace is entered into before a justice by a person as principal or surety, a court of petty sessions may, upon application, adjudge the recognizance to be forfeited upon proof –

(a) of conviction of the party bound as principal by the recognizance of an offence which is in law a breach of the condition of the recognizance; or

(b) that the party so bound as principal has done or threatened to do an act the doing or threatening of which would, if proved against him, have been a ground for calling upon him to enter into such a recognizance –

and upon further proof that a notice in writing, signed by the person seeking to put the recognizance in force, has, 7 clear days before the application is made, been personally served upon or left at the usual place of abode of the party or each of the parties, if more than one, against whom it is sought to put the recognizance in force, that an application will be made, at a time and place to be stated in the notice that the recognizance may be adjudged to be forfeited.

(2)  Upon adjudging the recognizance to be forfeited, the court may order the persons bound thereby, whether as principal or sureties, or any of them to pay the sums for which they are respectively bound.

106.   Execution of forfeiture

If the sum of money which a person is ordered to pay under section 105 (2) is not paid either immediately, or within such time as the court appoints, a justice may, without further notice to that person, cause the sum, with the costs of all proceedings rendered necessary by the non-payment, to be levied and recovered by execution against the goods and chattels of that person, and in default of sufficient goods and chattels that person may be imprisoned for 3 months unless the sum adjudged to be paid, and all costs and charges of the execution, and also if the justice thinks fit so to order, of taking and conveying that person to gaol, are sooner paid.

PART XA - Restraint Orders

[Part XA Inserted by No. 9 of 1985, s. 4 ][Part XA Substituted by No. 8 of 1988, s. 5 ]

106A.   Interpretation of Part XA

[Section 106A Substituted by No. 8 of 1988, s. 5 ][Section 106A Subsection (1) amended by No. 64 of 1994, s. 6 ][Section 106A Subsection (1) amended by No. 66 of 1995, s. 10 ][Section 106A Subsection (1) amended by No. 107 of 1995, s. 4 ]

(1)  [Section 106A Subsection (1) amended by No. 21 of 1992, s. 6 ]In this Part –

[Section 106A Subsection (1) amended by No. 40 of 1999, s. 7, Applied:16 Jul 1999] external restraint order means an order made by a court of another State, a Territory of the Commonwealth or New Zealand which has been made to prevent a person from acting in a manner specified in section 106B (1) ;

facsimile copy means a copy of a document made by transmitting the document by use of a facsimile machine;

family contact order means a Division 11 contact order within the meaning of Part 7 of the Family Law Act 1975 of the Commonwealth;

interim restraint order means an order made under section 106D ;

[Section 106A Subsection (1) amended by No. 40 of 1999, s. 7, Applied:16 Jul 1999]

possession, in relation to a thing, includes –

(a) having it in one's custody; and

(b) having it under one's control in any place (whether or not another person has custody of it); and

(c) having an ability to obtain its custody at will; and

(d) having a claim to its custody if the claimant has committed it to the custody of another person, even though it is temporarily not in the control of the person having the claim;

premises includes any, or any part of any, of the following (whether a public place or private property):

(a) an area of land;

(b) a building or structure (whether movable or immovable), including a residence;

(c) a vehicle, vessel or aircraft;

(d) a caravan or trailer;

property, in relation to a person, means property that –

(a) the person owns; or

(b) the person does not own but in normal circumstances –

(i) is used and enjoyed by the person; or

(ii) is available for the person's use or enjoyment; or

(iii) is in the person's possession; or

(iv) is at the premises at which the person is residing;

[Section 106A Subsection (1) amended by No. 40 of 1999, s. 7, Applied:16 Jul 1999] registered external restraint order means an external restraint order which has been registered under section 106GB (1) (a) or (3) ;

relevant family contact order means, in relation to a restraint order or interim restraint order, a family contact order relating to access between –

(a) the person for whose benefit a restraint order or interim restraint order is sought or made or the person against whom the restraint order or interim restraint order is sought or made; and

(b) a child who is a member of the family of either of those persons;

restraint order means an order made under section 106B ;

sealed copy includes a facsimile copy of a sealed copy;

stalking means the doing of any one or more of the following except when done for a lawful purpose:

(a) following another person;

(b) loitering outside the residence of another person or another place frequented by another person;

(c) entering or interfering with the property of another person;

(d) keeping another person under surveillance;

(e) giving offensive material to, or leaving offensive material where it is likely to be found by, given to or brought to the attention of, another person;

(f) acting in a way that could reasonably be expected to arouse another person's apprehension or fear;

telephone interim restraint order means an order made under section 106DA ;

[Section 106A Subsection (1) amended by No. 82 of 2000, Sched. 1, Applied:13 Dec 2000] working day means a day other than a Sunday or a statutory holiday as defined in the Statutory Holidays Act 2000 .

(1A)  [Section 106A Subsection (1A) inserted by No. 66 of 1995, s. 10 ]For the purposes of the definition of stalking in subsection (1) , an act is done for a lawful purpose if the act is done –

(a) by a law enforcement official as part of an official investigation; or

(b) by a member of the media (including a freelancer) as part of his or her professional occupation; or

(c) by a person during picketing that is otherwise lawful; or

(d) by a commercial agent, commercial sub-agent, inquiry agent or process server, within the meaning of the Commercial and Inquiry Agents Act 1974 , as part of his or her professional occupation; or

(e) by another person as part of his or her professional occupation.

(2)  In this Part, a reference to an application under this Part shall not include a reference to an application made under section 106B (3) or section 106G (2) .

(3)  [Section 106A Subsection (3) inserted by No. 107 of 1995, s. 4 ]For the purposes of this Part, a person is a member of the family of another person if that person is a member of the family of the other person within the meaning of section 60D (2) of the Family Law Act 1975 of the Commonwealth.

106B.   Restraint orders

[Section 106B Substituted by No. 8 of 1988, s. 5 ]

(1)  [Section 106B Subsection (1) amended by No. 66 of 1995, s. 11 ]Where on an application made under this section, justices are satisfied on the balance of probabilities –

(a) that –

(i) a person has caused personal injury or damage to property; and

(ii) that person is, unless restrained, likely again to cause personal injury or damage to property; or

(b) that –

(i) a person has threatened to cause personal injury or damage to property; and

(ii) that person is, unless restrained, likely to carry out that threat; or

(c) that –

(i) a person has behaved in a provocative or offensive manner;

(ii) the behaviour is such as is likely to lead to a breach of the peace; and

(iii) that person is, unless restrained, likely again to behave in the same or a similar manner; or

(d) that a person has stalked the person for whose benefit the application is made or a third person the stalking of whom has caused the person for whose benefit the application is made to feel apprehension or fear –

they may make an order imposing such restraints upon that person as are necessary or desirable to prevent the person from acting in a manner specified in this subsection.

(2)  An application for a restraint order may be made –

(a) by a police officer;

(b) by a person against whom, or against whose property, the behaviour that forms the subject-matter of the application was directed, or, where that person is a child, a parent or guardian of that child; or

(c) by a person to whom leave is granted under subsection (3) .

(3)  A person other than a person referred to in subsection (2) (a) or (b) may apply to justices for leave to make an application for a restraint order.

(4)  An application referred to in subsection (3) may be made in the absence of the respondent to the application.

(4AA)  [Section 106B Subsection (4AA) inserted by No. 107 of 1995, s. 5 ]An application for a restraint order must include information of any relevant family contact order, or of any pending application for a relevant family contact order, of which the applicant is aware.

(4AAB)  [Section 106B Subsection (4AAB) inserted by No. 107 of 1995, s. 5 ][Section 106B Subsection (4AAB) substituted by No. 40 of 1999, s. 8, Applied:16 Jul 1999] In deciding whether or not to make a restraint order, the justices  –

(a) must consider the protection and welfare of the person for whose benefit the order is sought to be of paramount importance; and

(b) must consider whether access between the person for whose benefit the order is sought, or the person against whom the order is sought, and any child who is a member of the family of either of those persons is relevant to the making of the restraint order; and

(c) must consider any relevant family contact order of which the justices have been informed.

(4AAC)  [Section 106B Subsection (4AAC) inserted by No. 107 of 1995, s. 5 ]A restraint order is not invalid merely because –

(a) the applicant fails to inform the justices of any relevant family contact order, or of any pending application for a relevant family contact order; or

(b) the justice fail to consider access or any relevant family contact order as required by subsection (4AAB) .

(4A)  [Section 106B Subsection (4A) inserted by No. 66 of 1995, s. 11 ][Section 106B Subsection (4A) substituted by No. 40 of 1999, s. 8, Applied:16 Jul 1999] In determining the nature of the orders which may be included in a restraint order, the justices hearing the application for the order must consider the protection and welfare of the person for whose benefit the order is sought to be of paramount importance.

(4B)  [Section 106B Subsection (4B) inserted by No. 40 of 1999, s. 8, Applied:16 Jul 1999] Without limiting the nature of the orders which may be included in a restraint order, the justices hearing the application for the order may include in the restraint order one or more of the following orders:

(a) an order directing the person against whom the order is made to vacate premises, restraining that person from entering premises, or limiting that person's access to premises, whether or not that person has a legal or equitable interest in the premises;

(b) an order prohibiting or restricting the possession by the person against whom the order is made of all or any firearms specified in the order or directing the forfeiture or disposal of any firearms in the possession of that person;

(c) an order prohibiting the person against whom the order is made from stalking the person for whose benefit the order is made;

(d) an order prohibiting the person against whom the order is made from causing another person to engage in conduct restrained by justices.

(5)  [Section 106B Subsection (5) amended by No. 64 of 1994, s. 7 ][Section 106B Subsection (5) substituted by No. 40 of 1999, s. 8, Applied:16 Jul 1999] Before making an order of a kind referred to in subsection (4B)(a) , the justices must consider –

(a) the effect of making or declining to make the order on the accommodation of the persons affected by the proceedings; and

(b) the effect of making or declining to make the order on any children of, or in the care of, the persons affected by the proceedings; and

(c) the need for suitable arrangements to be made to allow the person against whom the order is sought to take possession of personal property on the premises.

(5A)  [Section 106B Subsection (5A) inserted by No. 64 of 1994, s. 7 ]Without limiting the nature of the orders which may be made under this section, if justices make a restraint order, the justices may include in that order any one or more of the following orders:

(a) an order directing the person against whom the restraint order is sought to deliver property, in the manner specified in the order, to a person for whose benefit the restraint order is made or to allow a person for whose benefit the restraint order is made, in the manner specified in the order, to recover possession of property or have access to property;

(b) an order directing the person for whose benefit the restraint order is made to allow a person against whom the restraint order is made, in the manner specified in the order, to recover possession of property or have access to property.

(5B)  [Section 106B Subsection (5B) inserted by No. 64 of 1994, s. 7 ]A restraint order that affects possession of or access to premises or property does not affect any legal or equitable interest held by any person in the premises or property.

(6)  A restraint order shall remain in force for such period as justices consider necessary to protect the person for whose benefit the order is made or until an order is made revoking the restraint order.

(7)  [Section 106B Subsection (7) inserted by No. 21 of 1992, s. 7 ]A restraint order may –

(a) cancel or suspend any licence or other permit relating to the possession of a firearm by the person against whom the order is made; and

(b) prohibit the person from applying for, or being granted or issued, any such licence or other permit during the period specified in the order.

(8)  [Section 106B Subsection (8) inserted by No. 21 of 1992, s. 7 ][Section 106B Subsection (8) omitted by No. 64 of 1994, s. 7 ].  .  .  .  .  .  .  .  

106C.   Issue of warrants in respect of applications for restraint orders

[Section 106C Substituted by No. 8 of 1988, s. 5 ]

(1)  Where an application for a restraint order, whether or not filed with a clerk of petty sessions, and the materials required by the rules to accompany such an application are produced to a justice, the justice may, if in his opinion it is a case of urgency and he sees sufficient cause to do so, issue a warrant for the apprehension of the person against whom the restraint order is sought.

(2)  Where a justice issues a warrant for the apprehension of a person pursuant to subsection (1) and an application for a restraint order has not been filed at the time the warrant is issued, the application shall be filed as soon as practicable after the warrant is issued.

106D.   Interim restraint orders

[Section 106D Substituted by No. 8 of 1988, s. 5 ]

(1)  Where an application for a restraint order has been filed with a clerk of petty sessions, justices may, if they see sufficient cause to do so and whether or not they are satisfied of any of the matters specified in section 106B (1) –

(a) make an interim restraint order at any stage of the proceedings in respect of the application for the restraint order;

(b) at any stage of those proceedings vary an interim restraint order so made; and

(c) whether or not they make an interim restraint order, give such directions with respect to the further hearing of the application for the restraint order as they consider necessary.

(2)  An interim restraint order shall be expressed to operate for such period, not exceeding 60 days, as may be specified by the justices.

(3)  Notwithstanding subsection (2) , if it appears to justices that the period for which an interim restraint order is expressed to have effect will expire before the conclusion of the proceedings in respect of the application for a restraint order, they may extend the interim restraint order until –

(a) a restraint order is served on the person against whom it is sought; or

(b) the proceedings are otherwise terminated.

(4)  [Section 106D Subsection (4) amended by No. 64 of 1994, s. 8 ]An interim restraint order may be made, varied, or extended in the absence of the person against whom a restraint order is sought whether or not a sealed copy of the application for the restraint order has been served on that person.

(5)  In addition to, or in lieu of, making an interim restraint order, justices may issue a warrant for the apprehension of the person against whom a restraint order is sought.

(6)  [Section 106D Subsection (6) amended by No. 66 of 1995, s. 12 ]The provisions of section 106B (4A) , (5) and (5A) apply to the making of an interim restraint order in the same manner as they apply to the making of a restraint order.

(6A)  [Section 106D Subsection (6A) inserted by No. 107 of 1995, s. 6 ]The provisions of section 106B (4AAB) and (4AAC) apply to the making, variation or extension of an interim restraint order in the same manner as they apply to the making of a restraint order.

(7)  [Section 106D Subsection (7) inserted by No. 21 of 1992, s. 8 ]An interim restraint order may –

(a) suspend, for the period during which the order is in force, any licence or other permit relating to the possession of a firearm by the person against whom the order is made; and

(b) prohibit the person from applying for, or being granted or issued, any such licence or other permit during that period.

(8)  [Section 106D Subsection (8) inserted by No. 21 of 1992, s. 8 ]A suspension referred to in subsection (7) takes effect when the interim restraint order is served on the person against whom it is made.

106DA.   Telephone interim restraint orders

[Section 106DA Inserted by No. 66 of 1995, s. 13 ]

(1)  In this section –

intimidation means verbal or physical intimidation or verbal and physical intimidation;

telephone includes radio and facsimile machine.

(2)  A police officer may apply by telephone to a magistrate for an interim restraint order against a person if –

(a) the police officer has reasonable grounds for believing that –

(i) the person has intimidated another person; and

(ii) the intimidation is likely to continue and give rise to an assault; and

(b) it is not practicable to immediately apply for a restraint order because of the time and place at which the intimidation giving rise to the application occurred.

(3)  A police officer who is making or intends to make an application for a telephone interim restraint order may detain the person against whom the order is sought at the scene of the intimidation, using such force as is necessary and reasonable, for as long as is reasonably necessary for –

(a) the application to be made and heard; and

(b) any order, or a copy of any order, made to be served.

(4)  A magistrate to whom an application is made under subsection (2) may make an interim restraint order by telephone if the magistrate considers there is sufficient cause to do so and whether or not he or she is satisfied of any of the matters specified in section 106B (1) .

(5)  The provisions of section 106B (4A) , (5) and (5A) apply to the making of a telephone interim restraint order in the same manner as they apply to the making of a restraint order.

(6)  The provisions of section 106D (7) and (8) apply to a telephone interim restraint order in the same manner as they apply to an interim restraint order.

(7)  A telephone interim restraint order is made by the magistrate –

(a) orally communicating the terms of the order to the applicant; or

(b) transmitting the terms of the order to the applicant by facsimile machine.

(8)  A magistrate who makes a telephone interim restraint order must –

(a) record in writing –

(i) the name and rank of the applicant police officer; and

(ii) the name of the person against whom the order is made; and

(iii) the name of the person for whose benefit the order is made; and

(iv) the reasons for the application; and

(v) the terms of the order; and

(vi) the date and time the order was made; and

(vii) the period for which the order operates; and

(b) provide that record or a copy of it to a clerk of petty sessions.

(9)  Where a telephone interim restraint order is made orally, the police officer must record in writing the information specified in subsection (8) (a) (ii) , (iii) , (v) , (vi) and (vii) and the name of the magistrate who made the order.

(10)  A record made by a police officer under subsection (9) is taken to be the telephone interim restraint order.

(11)  A paper that has been produced by or directly from the facsimile transmission of the terms of a telephone interim restraint order to the applicant is taken to be the telephone interim restraint order.

(12)  A telephone interim restraint order or a copy of such an order is to be served personally on the person against whom the order is made as soon as practicable after it is made.

(13)  A telephone interim restraint order operates for a period, not exceeding 5 working days, specified in the order.

(14)  Before a telephone interim restraint order expires, a police officer must –

(a) apply for a restraint order; or

(b) report to the magistrate who made the telephone interim restraint order the reasons why an application for a restraint order is not being made.

(15)  A person who has been detained to facilitate the making of a telephone interim restraint order has not been taken into custody for the purposes of sections 34 and 34A .

106E.   Procedure in relation to hearing and determining applications under this Part

[Section 106E Substituted by No. 8 of 1988, s. 5 ]

(1)  [Section 106E Subsection (1) substituted by No. 64 of 1994, s. 9 ]Except as otherwise provided by this Act or ordered by justices –

(a) an application under this Part is to be heard and determined –

(i) in open court; and

(ii) in the same manner, as nearly as practicable, as a complaint for a simple offence; and

(b) a person who makes an application under this Part is to be treated, as nearly as practicable, as a complainant.

(1A)  [Section 106E Subsection (1A) inserted by No. 64 of 1994, s. 9 ]At the hearing of an application under this Part, the following persons may conduct the applicant's or respondent's case and examine and cross-examine witnesses:

(a) the applicant or respondent;

(b) a legal practitioner who represents the applicant or respondent;

(c) a police officer who represents the applicant or respondent.

(1B)  [Section 106E Subsection (1B) inserted by No. 64 of 1994, s. 9 ]If a police officer could, if available as a witness, give direct oral evidence of a fact in his or her professional capacity in the hearing of an application under this Part, the statutory declaration of the police officer in relation to that fact and made in support of the application is, subject to subsection (1C) , admissible as evidence of the fact in the hearing, notwithstanding that the police officer may be available as a witness.

(1C)  [Section 106E Subsection (1C) inserted by No. 64 of 1994, s. 9 ]A statutory declaration referred to in subsection (1B) is not admissible as evidence in the hearing of an application under this Part if the justices, having regard to all the circumstances, are of the opinion that the representation in the statutory declaration ought not to be admitted without being tested by cross-examination.

(1D)  [Section 106E Subsection (1D) inserted by No. 64 of 1994, s. 9 ]The representation of a legally-qualified medical practitioner in a document tending to establish a fact is admissible as evidence of the fact in the hearing of an application under this Part, notwithstanding that the medical practitioner may be available as a witness, if –

(a) the medical practitioner, in his or her professional capacity, could give direct oral evidence of the fact in the hearing; and

(b) the justices, having regard to all the circumstances, are of the opinion that justice does not require that the representation be tested by cross-examination.

(2)  If the justices hearing an application under this Part are satisfied that –

(a) a sealed copy of the application has been served on the respondent to the application; or

(b) reasonable attempts have been made to serve a sealed copy of the application on the respondent –

they may proceed in the absence of the respondent and may –

(c) make the order sought in the application or such other order as they consider necessary; or

(d) issue a warrant for the apprehension of the respondent.

(3)  If the parties to an application under this Part consent, justices may make an order under this Part in accordance with the terms consented to by the parties.

(4)  [Section 106E Subsection (4) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] [Section 106E Subsection (4) inserted by No. 49 of 1999, Sched. 1, Applied:01 Feb 2000] At any time in proceedings under this Part, the justices may determine that it is appropriate that those proceedings be heard and determined by the Magistrates Court (Youth Justice Division) or the Magistrates Court (Children's Division) and may transfer the proceedings to that court.

(5)  [Section 106E Subsection (5) amended by No. 2 of 1998, Sched. 2, Applied:01 Jul 2000] [Section 106E Subsection (5) inserted by No. 49 of 1999, Sched. 1, Applied:01 Feb 2000] If proceedings are transferred to the Magistrates Court (Youth Justice Division) or the Magistrates Court (Children's Division) under subsection (4) , that court has jurisdiction to hear and determine those proceedings.

106EA.   When order takes effect

[Section 106EA Inserted by No. 64 of 1994, s. 10 ][Section 106EA Amended by No. 66 of 1995, s. 14 ]An order made under this Part takes effect –

(a) if the respondent to the application is present before the justices when the order is made, on the making of the order; or

(b) if the respondent to the application is not present before the justices when the order is made, when the respondent is served personally with the order or a copy of the order.

106F.   Powers of justices to remand in custody, admit to bail, &c.

[Section 106F Substituted by No. 8 of 1988, s. 5 ]

(1)  If for any reason the proceedings in respect of an application under this Part are adjourned, justices may –

(a) remand the respondent to the application in custody, with a justice issuing his warrant accordingly;

(b) admit the respondent to bail; or

(c) order the respondent to appear before justices at the time and place to which the proceedings are adjourned.

(1A)  [Section 106F Subsection (1A) inserted by No. 66 of 1995, s. 15 ]In making a determination under subsection (1) in respect of an application for a restraint order or interim restraint order –

(a) the protection and welfare of the person for whose benefit the order is sought is of paramount importance; and

(b) the justices must take into account any previous violence by the person against whom the order is sought against any other person whether or not that person was convicted of an offence, or had a prior restraint order made against him or her, in respect of that violence.

(2)  Where the respondent to an application under this Part is remanded in custody, the justices who remand that person shall inform him that he shall, and the warrant shall provide that he shall, be kept for a period not exceeding 28 clear days at any one time and then be brought before justices as specified in the warrant.

(3)  The period for which a person may be admitted to bail under this section shall not, without his consent, exceed 60 days.

(4)  An order under subsection (1) (c) has the same effect as a summons in similar terms.

106G.   Variation, extension, and revocation of restraint orders

[Section 106G Inserted by No. 8 of 1988, s. 5 ]

(1)  A person who may make an application for a restraint order or a person against whom a restraint order has been made may at any time apply to justices for the variation, extension, or revocation of the restraint order.

(2)  A person other than a person referred to in subsection (1) may apply to justices for leave to make an application for the variation, extension, or revocation of a restraint order.

(3)  An application referred to in subsection (2) may be made in the absence of the respondent to the application.

(3A)  [Section 106G Subsection (3A) inserted by No. 107 of 1995, s. 7 ]The provisions of section 106B (4AAB) and (4AAC) apply to the variation or extension of a restraint order in the same manner as they apply to the making of a restraint order.

(4)  A restraint order which has been varied under this section shall have effect for the period for which the restraint order before it was varied had effect unless otherwise provided by the justices hearing the application for the variation of the restraint order.

(5)  A restraint order may be extended for such period as justices consider necessary to protect the person for whose benefit the restraint order was made or until an order is made revoking the restraint order.

106GA.   Application for registration of external restraint order

[Section 106GA Inserted by No. 21 of 1992, s. 9 ]

(1)  [Section 106GA Subsection (1) amended by No. 40 of 1999, Sched. 1, Applied:16 Jul 1999] A person may apply to the Chief Clerk of Petty Sessions for the registration of an external restraint order.

(2)  An application is to –

(a) be made in a form approved by the Chief Clerk of Petty Sessions; and

(b) [Section 106GA Subsection (2) amended by No. 40 of 1999, Sched. 1, Applied:16 Jul 1999] be accompanied by a copy of the external restraint order; and

(c) [Section 106GA Subsection (2) amended by No. 40 of 1999, Sched. 1, Applied:16 Jul 1999] be accompanied by such evidence of effective service of the external restraint order on the person against whom it was made as the Chief Clerk considers appropriate.

106GB.   Registration of external restraint order

[Section 106GB Inserted by No. 21 of 1992, s. 9 ]

(1)  On receipt of an application under section 106GA , the Chief Clerk of Petty Sessions must –

(a) [Section 106GB Subsection (1) amended by No. 40 of 1999, Sched. 1, Applied:16 Jul 1999] register the external restraint order to which the application relates; or

(b) [Section 106GB Subsection (1) amended by No. 40 of 1999, Sched. 1, Applied:16 Jul 1999] refer that external restraint order to justices for adaptation and modification.

(2)  [Section 106GB Subsection (2) amended by No. 40 of 1999, Sched. 1, Applied:16 Jul 1999] On the referral of an external restraint order, justices may–

(a) vary the period during which the order has effect in its operation in this State; and

(b) make such other adaptations and modifications to the order as they consider necessary or desirable for its effective operation in this State.

(3)  [Section 106GB Subsection (3) amended by No. 40 of 1999, Sched. 1, Applied:16 Jul 1999] The Chief Clerk of Petty Sessions must register an external restraint order which has been adapted and modified under subsection (2) .

(4)  [Section 106GB Subsection (4) amended by No. 40 of 1999, Sched. 1, Applied:16 Jul 1999] On registering an external restraint order, the Chief Clerk of Petty Sessions must provide the Commissioner of Police with a copy of the registered external restraint order.

(5)  [Section 106GB Subsection (5) amended by No. 40 of 1999, Sched. 1, Applied:16 Jul 1999] Notice of the registration of an external restraint order is not to be served on the person against whom the order was made except where the person who applied for that registration has consented to that service.

(6)  [Section 106GB Subsection (6) amended by No. 40 of 1999, Sched. 1, Applied:16 Jul 1999] A registered external restraint order is registered for the period during which the order, or the order as adapted and modified, is in force.

106GC.   Effect of registration of external restraint order

[Section 106GC Inserted by No. 21 of 1992, s. 9 ]An interstate restraint order which has been registered under section 106GB (1) (a) or (3) –

(a) has the same effect as a restraint order made under this Part; and

(b) may be enforced against a person as if it were a restraint order which had been made under this Part and personally served on that person.

106GD.   Variation, &c., of registered interstate restraint order

[Section 106GD Inserted by No. 21 of 1992, s. 9 ]

(1)  In this section, prescribed person means –

(a) [Section 106GD Subsection (1) amended by No. 40 of 1999, Sched. 1, Applied:16 Jul 1999] a person who applied for the registration of an external restraint order; or

(b) [Section 106GD Subsection (1) amended by No. 40 of 1999, Sched. 1, Applied:16 Jul 1999] a person for whose benefit a registered external restraint order has been made; or

(c) [Section 106GD Subsection (1) amended by No. 40 of 1999, Sched. 1, Applied:16 Jul 1999] a person against whom a registered external restraint order has been made; or

(d) a person whom justices have granted leave to make an application under this section.

(2)  A prescribed person may apply to justices for one or more of the following purposes:

(a) [Section 106GD Subsection (2) amended by No. 40 of 1999, Sched. 1, Applied:16 Jul 1999] the variation of a registered external restraint order as it applies in this State;

(b) [Section 106GD Subsection (2) amended by No. 40 of 1999, Sched. 1, Applied:16 Jul 1999] the variation of the period during which a registered external restraint order has effect in its operation in this State;

(c) [Section 106GD Subsection (2) amended by No. 40 of 1999, Sched. 1, Applied:16 Jul 1999] the cancellation of the registration of a registered external restraint order.

(2A)  [Section 106GD Subsection (2A) amended by No. 40 of 1999, Sched. 1, Applied:16 Jul 1999] [Section 106GD Subsection (2A) inserted by No. 107 of 1995, s. 8 ]An application for the variation of a registered external restraint order as it applies in this State or the variation of the period during which such an order has effect in its operation in this State must include information of any relevant family contact order, or of any pending application for a relevant family contact order, of which the applicant is aware.

(3)  On receipt of an application under subsection (2) , justices may do one or more of the acts specified in that subsection.

(4)  [Section 106GD Subsection (4) amended by No. 40 of 1999, Sched. 1, Applied:16 Jul 1999] An application by a person referred to in subsection (1) (a) , (b) or (d) may be heard and determined in the absence of any person against whom the registered external restraint order has been made.

(5)  [Section 106GD Subsection (5) amended by No. 40 of 1999, Sched. 1, Applied:16 Jul 1999] A registered external restraint order varied under subsection (2) (a) or (b) is registered for the period during which the order, as varied, has effect in its operation in this State.

(6)  [Section 106GD Subsection (6) amended by No. 40 of 1999, Sched. 1, Applied:16 Jul 1999] [Section 106GD Subsection (6) inserted by No. 107 of 1995, s. 8 ]The provisions of section 106B (4AAB) and (4AAC) apply to the variation of a registered external restraint order as it applies in this State or the variation of the period during which such an order has effect in its operation in this State in the same manner as they apply to the making of a restraint order.

106GE.   Access order prevails if inconsistency

[Section 106GE Inserted by No. 107 of 1995, s. 9 ][Section 106GE Amended by No. 40 of 1999, Sched. 1, Applied:16 Jul 1999] A restraint order, interim restraint order, telephone interim restraint order or registered external restraint order operates subject to any declaration made under section 68S of the Family Law Act 1975 of the Commonwealth.

106H.   Costs

[Section 106H Inserted by No. 8 of 1988, s. 5 ]

(1)  The justices hearing an application under this Part made by a person other than a police officer may, if they think fit, order either party to pay to the other such costs as the justices consider reasonable.

(2)  Payment of costs which justices may order to be paid by either party to the other under this section shall be enforced in like manner as costs ordered to be paid under Part IX .

106I.   Contravention of restraint order, &c.

[Section 106I Inserted by No. 8 of 1988, s. 5 ]

(1)  [Section 106I Subsection (1) amended by No. 64 of 1994, s. 11 ][Section 106I Subsection (1) amended by No. 66 of 1995, s. 16 ]Where a person in respect of whom a restraint order, interim restraint order or telephone interim restraint order, as made, varied or extended has effect contravenes or fails to comply with the order, that person is guilty of an offence and is liable on summary conviction to a fine not exceeding 10 penalty units or to imprisonment for a period not exceeding 6 months.

(2)  Where a police officer has reasonable cause to suspect that a person has committed an offence under subsection (1) , he may, without warrant, arrest and detain that person and may, for the purpose of arresting and detaining such a person, enter, by force if necessary, any premises on which he has reasonable cause to believe that person is present and search those premises for that person.

(3)  Section 34 does not apply to a person arrested and detained under subsection (2) .

106J.   Power of justices to make orders under this Part at hearing of complaint for offence

[Section 106J Inserted by No. 8 of 1988, s. 5 ]Where, upon the hearing of a complaint for an offence punishable summarily, justices are satisfied on the balance of probabilities as to the matters set out in section 106B (1) , they may make an order under this Part in addition to any other order which they may make.

106K.   Restriction of publication of names of parties, &c.

[Section 106K Inserted by No. 8 of 1988, s. 5 ]

(1)  Where it appears to justices that for the furtherance of, or otherwise in the interests of, the administration of justice it is desirable to prohibit the publication of the name of any party to, or witness in, any proceedings before justices under this Part, justices may, either before or during the course of the proceedings or after the proceedings, make an order forbidding the publication of the name of the party or witness.

(2)  Where justices make an order under subsection (1) , the publication of any reference or allusion to any party or witness, the name of whom by an order under that subsection is forbidden to be published, shall, if that reference or allusion is, in the opinion of the justices making the order, intended, or is sufficient, to disclose the identity of the party or witness, be deemed to be a publication of the name of the party or witness.

(3)  Where justices make an order under subsection (1) forbidding the publication of any name, they shall report the fact to the Attorney-General and shall embody in their report a statement of the name forbidden to be published by that order and the circumstances in which the order was made.

(4)  No person shall print or publish any name that justices have, under subsection (1) , ordered not to be published.

(5)  A person who contravenes subsection (4) is guilty of an offence and is liable on summary conviction to a fine not exceeding 5 penalty units or to imprisonment for a period not exceeding 3 months.

106L.   Power of police to enter certain premises

[Section 106L Inserted by No. 8 of 1988, s. 5 ]

(1)  A police officer may –

(a) at the request of a person who apparently resides on any premises; or

(b) if he has reason to believe that a person on those premises is or may be under threat or attack or has recently been under threat or attack or that an attack on such a person is imminent –

enter those premises and remain on the premises for such period as he considers necessary to prevent a breach of the peace.

(1A)  [Section 106L Subsection (1A) inserted by No. 21 of 1992, s. 10 ]A police officer who has entered premises pursuant to subsection (1) may apprehend, without warrant, a person on those premises to facilitate the making of an application for a restraint order in respect of that person.

(2)  A police officer who enters premises pursuant to subsection (1) may, without warrant –

(a) search any person on those premises whom he suspects on reasonable grounds to have in his possession any object;

(b) search those premises for the presence of any object; and

(c) seize and detain any object –

which the police officer suspects on reasonable grounds has been used or may be used to threaten or injure any person on those premises.

(3)  For the purpose of subsection (2) , if a person on premises entered by a police officer pursuant to subsection (1) alleges to a police officer that an object has been used to threaten or injure that person, that allegation shall be sufficient justification for a police officer to search any person, to search the premises, and to seize and detain that object.

(3A)  [Section 106L Subsection (3A) inserted by No. 21 of 1992, s. 10 ][Section 106L Subsection (3A) substituted by No. 64 of 1994, s. 12 ]If a police officer has reason to believe that a person has acted in a manner that would constitute grounds for the making of a restraint order and in so acting has used an object to threaten or injure another person, the officer may, without warrant and using such force as is necessary –

(a) enter any premises on which the officer has reasonable cause to suspect that the object may be found; and

(b) search those premises for the object; and

(c) search any person whom the officer has reasonable cause to suspect has possession of the object; and

(d) seize and retain the object.

(3B)  [Section 106L Subsection (3B) inserted by No. 64 of 1994, s. 12 ]For the purposes of subsection (3A) , if a person alleges to a police officer that another person has acted in a manner that would constitute grounds for the making of a restraint order and in so acting has used an object to threaten or injure him, her or any other person, that allegation is sufficient justification for a police officer to take any action specified in subsection (3A) .

(4)  [Section 106L Subsection (4) amended by No. 21 of 1992, s. 10 ]On an application made by a police officer or by any person who claims to be the owner of an object seized and detained under subsection (2) or (3A) , justices may order that the object –

(a) be forfeited to Her Majesty;

(b) be destroyed;

(c) be returned to that person; or

(d) be otherwise disposed of in such manner as justices think fit.

(5)  [Section 106L Subsection (5) amended by No. 21 of 1992, s. 10 ]Where an object is seized and detained under subsection (2) , or (3A) and an application for an order has not been made under subsection (4) within 60 days after the date of the seizure, the object shall be returned to the person from whom it was seized.

106M.   Rules for purposes of Part XA

[Section 106M Inserted by No. 8 of 1988, s. 5 ]

(1)  The Governor may make rules for the purposes of this Part.

(2)  Rules made for the purposes of this Part may authorize justices, upon such terms and conditions as they consider necessary, to dispense with the need for compliance by a party to proceedings under this Part with the provisions of any such rules.

106N.   Forms of application, restraint order, &c.

[Section 106N Inserted by No. 64 of 1994, s. 13 ]A restraint order, an interim restraint order or an application under this Part, including an application under section 106B (3) and 106G (2) , is to be –

(a) in the prescribed form; or

(b) where a form is not prescribed, in a form approved by the Chief Magistrate.

PART XI - [Part XI Heading substituted by No. 108 of 1974, s. 30 ]Motions to Review, Appeals, and Similar Proceedings

Division 1 - Motions to review to the Supreme Court and hearings de novo

[Part XI, Div. 1 Substituted by No. 108 of 1974, s. 30 ]

107.   Summary mode of reviewing decisions of justices

[Section 107 Substituted by No. 108 of 1974, s. 30 ]

(1)  A person who is aggrieved by an order of justices may, upon notice in accordance with this section, move the Supreme Court to review that order.

(2)  A notice of motion under this section –

(a) shall be known as a notice to review; and

(b) shall set forth in specific terms the ground on which review is sought.

(3)  [Section 107 Subsection (3) amended by No. 71 of 1993, s. 7 ]An applicant under this section shall, within 21 days after the making of the order to be reviewed –

(a) file a notice to review in the Supreme Court; and

(b) serve a copy of that notice on –

(i) the person interested in upholding the order; and

(ii) the clerk to the justices making the order.

(4)  The grounds set forth in a notice to review shall allege –

(a) an error or mistake on the part of the justices on a matter or question of fact alone, or of law alone, or of both fact and law; or

(b) that the justices had no jurisdiction to make the relevant order.

(5)  [Section 107 Subsection (5) amended by No. 71 of 1993, s. 7 ]A notice to review shall be made returnable on the prescribed day for the return of those notices that first occurs not less than 28 days after the making of the relevant order by the justices.

(6)  A judge in his discretion may, on an affidavit setting forth reasonable grounds, extend the time mentioned in subsection (3) at any time within that time or after it has expired.

108.   Applicant limited to grounds to be stated in notice to review

[Section 108 Substituted by No. 108 of 1974, s. 30 ]

(1)  On the hearing of a motion made on notice to review, the applicant shall be held to the ground set forth in his notice to review unless the court, on such terms as to costs and otherwise as it thinks proper, allows amendment of the notice.

(2)  A notice to review may be amended under this section by adding new grounds and by striking out and amending existing grounds.

109.   Interlocutory proceedings

[Section 109 Substituted by No. 108 of 1974, s. 30 ]

(1)  On the application of a person who has filed or been served with a notice to review, a judge may, ex parte or on summons to such parties as he requires or the rules or practice of the court require –

(a) vary the return day of the notice to review;

(b) impose conditions as to costs and security to be complied with before the motion is heard;

(c) stay proceedings on the order or suspend the operation thereof ab initio; and

(d) admit the applicant for the review to bail –

in his discretion and on such terms as to costs and otherwise as he thinks fit.

(2)  [Section 109 Subsection (2) amended by No. 115 of 1986, s. 18 ]A clerk to justices who has been served with a notice to review shall forthwith deliver the notice to the justices and shall –

(a) within 7 days of the delivery of the notice, cause to be transmitted to the Registrar of the Supreme Court the documents that are prescribed for that purpose (in this section referred to as "the prescribed documents"); and

(b) take such steps as are necessary to preserve any tape recording of the proceedings to which the notice relates.

(3)  [Section 109 Subsection (3) amended by No. 45 of 1986, s. 25 ]A party to a notice to review is entitled to obtain from –

(a) the Registrar of the Supreme Court an office copy of the prescribed documents or any part thereof; and

(b) the clerk to the justices, upon payment of the prescribed fee (if any), a certified transcript of the recording of the proceedings to which the notice relates or any portion of those proceedings specified by the party unless the clerk certifies that no recording of the proceedings exists from which a transcript may be taken.

(3A)  [Section 109 Subsection (3A) inserted by No. 45 of 1986, s. 25 ]For the purposes of subsection (3) , certified, in relation to a transcript of the recording of proceedings, means certified by the person who transcribed the recording as being a true and accurate record of the recording.

(4)  Subject to subsection (5) , on the hearing of a motion to review, the Supreme Court shall have regard to the prescribed documents transmitted under subsection (2) and to such affidavits (if any) as have been filed that purport to set out material that was before the justices whose order is being reviewed.

(5)  The Supreme Court may have regard to the notes of evidence (if any) transmitted under subsection (2) so far as they are not contradicted on oath, by affidavit, or otherwise.

110.   Powers of Supreme Court

[Section 110 Substituted by No. 108 of 1974, s. 30 ]

(1)  The Supreme Court shall be constituted by a single judge for the hearing of motions to review under section 107 , but the judge may reserve the motion or any point arising thereon for the Full Court or direct the motion or any such point to be argued in the Full Court, and the Full Court has power to hear and determine any motion or point so reserved or directed to be argued.

(2)  [Section 110 Subsection (2) amended by No. 45 of 1986, s. 26 ][Section 110 Subsection (1) amended by No. 71 of 1993, s. 8 ]On the hearing of a motion to review, the court shall, upon consideration of the evidence and materials adduced and brought before the justices and such further evidence (if any) as it thinks fit, review the order so far as relates to the ground set forth in the notice to review, and thereupon may do all or any of the following things, namely:

(a) dismiss the motion;

(ab) in a case where the court considers that no substantial miscarriage of justice has occurred even though the cause or matter raised by the motion might be decided in favour of the applicant, dismiss the motion;

(b) confirm, vary, amend, rescind, set aside, or quash the order reviewed;

(c) remit the cause or matter to the justices by whom it was dealt with, either with or without any direction in law;

(d) order that the cause or matter be re-tried by a magistrate;

(e) prohibit the justices concerned, or any other person, from proceeding or further proceeding in respect of the order;

(f) amend or cause to be amended, on such terms as are just, any defect or error in any proceedings before the justices;

(g) make all such orders and cause all such proceedings to be had and taken as the court thinks necessary to secure a final determination of the cause or matter on the merits;

(h) exercise, in addition to any other powers conferred by this section, any power which the court might exercise upon certiorari, mandamus, prohibition, or habeas corpus;

(i) exercise any power that might have been exercised by the justices in relation to whose order the motion to review is made.

(3)  On the hearing of a motion to review, all such amendments shall be made under subsection (2) (f) as may be necessary for the purpose of determining the cause or matter on the merits.

111.   Hearings de novo

[Section 111 Substituted by No. 108 of 1974, s. 30 ]

(1)  Notwithstanding anything contained in section 110 and subject to this section, a person who has filed, or has been served with, a notice to review may apply to the Supreme Court for an order that the complaint to which the notice relates be heard de novo and determined in the Supreme Court.

(2)  An application for an order under subsection (1) may be made on a return day fixed for the notice to review to which it relates or on summons on any day before that day and shall in any case, except with the consent of the respondent to the application, be made before the commencement of the hearing of the motion to review to which it relates.

(3)  No application for an order under subsection (1) shall be made in relation to a notice to review an order –

(a) made ex parte, unless the applicant has first applied to set it aside;

(b) made on the applicant's plea of guilty; or

(c) made by 2 or more justices.

(4)  An order shall not be made under subsection (1) unless the court is satisfied that, having regard to all the circumstances, the interests of justice require that the complaint be reheard de novo.

(5)  Without limiting the generality of the provisions of subsection (4) , the court may make an order under subsection (1) , if –

(a) there does not exist, or it is not practicable to bring into existence, any sufficient account of that part of the proceedings to which any ground set out in the notice to review relates;

(b) at the hearing of the complaint the applicant was not represented by counsel and evidence available at that time amounting to a substantial ground of defence was not then adduced; or

(c) the parties to the notice to review consent to the making of an order.

(6)  Upon the making of an order under subsection (1) , the court –

(a) may make such orders as to costs occasioned by the notice to review and the application as the court thinks fit;

(b) may require security for the costs of the rehearing of the complaint to be given; and

(c) may extend the operation of any order made on the notice to review or make any order that, but for the application, might have been made on the notice to review pursuant to section 109 (1) (c) or (d) .

(7)  Where a complaint is heard and determined de novo pursuant to this section, the court has all the powers of the justices at the original hearing of the complaint, and the orders and warrants of the court have the like effect, and are enforceable in the like manner, as if they were made or issued by the justices.

(8)  Notwithstanding anything contained in the foregoing provisions of this section, the court may, if it considers it expedient so to do, order that a complaint in respect of which an application for an order under subsection (1) has been made shall be reheard by a magistrate and may exercise the powers referred to in subsection (6) on making such an order.

112.   Right of justices to show cause

[Section 112 Substituted by No. 108 of 1974, s. 30 ]

(1)  Where a notice to review is served on the clerk to the justices pursuant to section 107 (3) (b) (ii) , the justices may make and file in the Supreme Court without fee an affidavit setting forth –

(a) the grounds of the order sought to be reviewed; and

(b) any facts that they consider to have a material bearing on the question at issue.

(2)  An affidavit under this section may be sworn before a justice, and sent by post to the Registrar of the Supreme Court for filing.

(3)  Where an affidavit is filed under this section, the court shall, before determining the matter so as to overrule, set aside, or vary the act or order of the justices, take into consideration the matters set forth in the affidavit, although no counsel appears on behalf of the justices.

113.   Affidavits

[Section 113 Substituted by No. 108 of 1974, s. 30 ]

(1)  On the hearing of a motion to review, a party may not use an affidavit that has not been filed and a copy thereof delivered to every other party at least 48 hours before the motion is returnable, except by leave of the court, which may be granted on terms as to costs or otherwise.

(2)  This section does not apply to affidavits filed by justices under section 112 .

Division 2 - Appeals to, and review by, magistrates

[Part XI, Div. 2 Substituted by No. 108 of 1974, s. 30 ]

113A.   Alternative appeals in certain cases

[Section 113A Inserted by No. 108 of 1974, s. 30 ]

(1)  A person who is aggrieved by an order made by a court of petty sessions (other than one constituted by a magistrate) may appeal to a magistrate as provided in this section.

(2)  [Section 113A Subsection (2) amended by No. 71 of 1993, s. 9 ]An appellant shall, within 21 days after the making of the order to which the appeal relates, serve on the person concerned in upholding the order, and on the appropriate clerk of petty sessions, a notice of appeal setting forth the grounds of the appeal.

(3)  [Section 113A Subsection (3) amended by No. 45 of 1987, s. 21 and Sched. 1 ]A clerk of petty sessions shall, on receipt of a notice of appeal, transmit a copy of the notice to the Chief Magistrate.

(4)  [Section 113A Subsection (4) amended by No. 45 of 1987, s. 21 and Sched. 1 ]The Chief Magistrate shall cause to be given to the appellant or his attorney and to the person concerned in upholding the order or his attorney 14 days' notice of the day on which, and the place at which, the appeal is to be heard.

(5)  An appeal under this section operates as a stay of execution of the order appealed against –

(a) in respect of the payment of money; and

(b) in respect of the imprisonment of the appellant, if a justice, in his discretion, admits the appellant to bail –

(i) with such surety or sureties as the justice may require; and

(ii) to appear on the appeal and at every time and place to which, during the course of the proceedings, the hearing may be from time to time adjourned.

(6)  Except as provided in subsection (5) , a magistrate or any 2 justices may, on summons to the respondent, and on such terms and conditions as seem fit to him or them, stay any proceedings upon an order appealed against, or suspend its operation ab initio.

(7)  If an appellant proceeds under section 107 , he shall be deemed to have waived his right of appeal under this section, and any proceedings taken by him under this section shall be deemed to be void, and the magistrate may order him to pay any other party's costs occasioned by his appeal.

(8)  No appeal lies under this section against an order –

(a) made on the appellant's plea of guilty; or

(b) against sentence only.

(9)  A magistrate may, on an affidavit setting forth reasonable grounds, enlarge the time for serving a notice of appeal or doing any act under subsection (5) , either before or after the time has expired.

(10)  On an appeal under this section, the magistrate –

(a) shall hear the appeal by way of re-hearing;

(b) may at any time allow the grounds of appeal set forth in the notice of appeal to be amended on such terms as to costs or otherwise as the magistrate thinks fit;

(c) may adjourn the hearing on terms, if he considers it proper to do so;

(d) may exercise in relation to the appeal any power that might have been exercised by the justices against whose order the appeal is made; and

(e) may confirm, reverse, mitigate, or vary the order of the justices appealed against or make such other order in the matter as he thinks fit.

113B.   Review by magistrate

[Section 113B Inserted by No. 108 of 1974, s. 30 ]

(1)  [Section 113B Subsection (1) amended by No. 45 of 1986, s. 27 ]Subject to compliance with the provisions of the rules made under section 144 , a person who is aggrieved by an order made by a court of petty sessions (other than one constituted by a magistrate) in relation to an offence or a breach of duty may apply to a magistrate to review that order.

(2)  [Section 113B Subsection (2) amended by No. 45 of 1986, s. 27 ]On the hearing of an application under this section, the magistrate may –

(a) if he is of opinion that the matter received by him from the original court is insufficient to enable him to review the order; or

(b) with the consent of the party who was the defendant in the original proceedings –

proceed as if the defendant was then and there appearing before him on the first hearing of the relevant complaint and had pleaded guilty to the matter of complaint contained therein.

(3)  Upon the hearing of an application under this section –

(a) the magistrate may exercise any of the powers contained in paragraphs (a) , (b) , (f) , and (g) of section 110 (2) ; and

(b) the provisions of section 111 (7) apply, with the necessary modifications, to the hearing of an application under this section.

(4)  [Section 113B Subsection (4) amended by No. 45 of 1986, s. 27 ]The receipt by an original court of an application under this section operates as a suspension ab initio of the order to be reviewed, except in so far as that order imposes a term of imprisonment on a person referred to in the order.

(5)  [Section 113B Subsection (5) amended by No. 45 of 1986, s. 27 ]Notwithstanding anything contained in subsection (4) , a justice may grant bail to a person sentenced to a term of imprisonment under the order for any period not exceeding 28 days if, in the opinion of the justice, adequate measures can be taken to secure the attendance of that person at the hearing of the application.

Division 3 - Stated case

114.   Right of justices to state case

(1)  Where, in the opinion of the justices, the matter before them involves a question of law of such public and general importance as to make it desirable in the public interest that it should be determined by the Supreme Court, the justices instead of deciding the matter may state a case for the opinion of the Supreme Court, and may adjourn the hearing of the matter pending the receipt of the opinion of the Supreme Court thereon.

(2)  In any such case the justices shall forthwith prepare and state a case setting forth the material facts and their findings thereon, and stating the question of law upon which they desire the opinion of the Supreme Court; and shall transmit the case without delay to the Registrar of the Supreme Court.

(3)  On receipt of a case stated under this section the Registrar shall set it down for hearing and give the parties at least 3 days' notice thereof.

(4)  On the hearing of a case stated, the Supreme Court –

(a) shall be constituted by a single judge;

(b) may remit the case to the justices for amendment if, in its opinion, the case is defective;

(c) may reserve the case or any point arising thereon for the Full Court or direct the case or any such point to be argued in the Full Court; and

(d) shall cause the case to be remitted to the justices with the opinion of the Court on the question therein submitted.

(5)  The Full Court has power to hear and determine any case or point that is reserved for the Full Court or directed to be argued in the Full Court pursuant to subsection (4) (c) .

Division 4 - Proceeding in lieu of mandamus

115.   Rule to show cause and order thereon

(1)  Where a justice refuses to do an act relating to the duties of his office as justice, the person requiring the act to be done may apply to the Supreme Court or a judge, upon an affidavit of the facts, for a rule or order calling upon the justice and the person to be affected by the act to show cause why the act should not be done.

(2)  If after due service of the rule or order good cause is not shown against it, the court or judge may make it absolute with or without or upon payment of costs.

(3)  Upon being served with the rule or order absolute, the justice shall obey it and do the act by it required to be done.

(4)  No action or proceeding may be commenced or prosecuted against the justice for having obeyed the rule and done the act thereby required.

Division 5 - General provisions

116.   Interpretation

In this Part, unless the contrary intention appears, order includes conviction, dismissal of a complaint, determination, and adjudication.

117.   Limitation of this Part

[Section 117 Substituted by No. 108 of 1974, s. 31 ]An order committing a defendant for trial is not subject to review or appeal under this Part.

117A.   Applications to justices for relief

[Section 117A Inserted by No. 108 of 1974, s. 31 ]

(1)  A person who is aggrieved by an order of justices may –

(a) forthwith after the making of the order or within such further time thereafter as the justices allow; and

(b) on giving notice in the prescribed form of his intention to file a notice of review under section 107 –

apply to the justices for relief as provided in this section.

(2)  [Section 117A Subsection (2) amended by No. 10 of 1994, s. 7 and Sched. 2 ]On an application under this section, the justices may, in their discretion and on such terms as to costs and otherwise as they think fit, grant the application by –

(a) staying proceedings on the order to which the application relates or suspending the operation thereof ab initio; and

(b) admitting the applicant to bail –

for such period as appears to be desirable for the notice of review to be returnable in the Supreme Court.

118.   Proceedings not to be quashed for want of form

A complaint, conviction, order, or other proceeding before justices shall not be quashed or set aside, or adjudged void, or insufficient for want of form.

119.   Amendment of convictions, &c.

(1)  When evidence given before the justices in substance supports the adjudication of the justices, and if that evidence would have justified the justices in making any necessary allegation or finding omitted in the adjudication, or in the formal conviction or order, or any warrant issued in pursuance of the adjudication, all necessary amendments shall be made by the Supreme Court, and when in a conviction there is some excess which may, consistently with the merits of the case, be corrected, the conviction shall be amended accordingly, and shall stand good for the remainder.

(2)  All amendments made under this section shall be subject to such order as to costs and otherwise as the court thinks fit.

120.   Want of complaint or summons

[Section 120 Amended by No. 108 of 1974, s. 38 and Sched. 1 ]When the person convicted, or against whom an order has been made, or a person whose goods have been condemned or directed to be sold as forfeited, was present at the hearing of the case, the conviction or order shall be sustained, although there may have been no complaint or summons, unless he objected at the hearing that there was no complaint or summons, and the Supreme Court is of opinion that the course of procedure was prejudicial to the conduct of his case.

121.   Distribution of penalty

A conviction or order shall not be defeated for the want of any distribution, or for a wrong distribution, of the penalty or forfeiture.

121A.   Period pending review, &c.

[Section 121A Inserted by No. 108 of 1974, s. 32 ]

(1)  A person who is sentenced to a term of imprisonment by the order of justices and who is required to be treated in the same manner as a person awaiting trial may, except in respect of a period in which he is otherwise liable to undergo imprisonment for a crime or simple offence, elect (subject to the grant of any application for bail) between continuing to undergo his sentence or being treated in the same manner as a person awaiting trial.

(2)  [Section 121A Subsection (2) omitted by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] .  .  .  .  .  .  .  .  

(3)  If a person whose period of imprisonment is not running as provided in subsection (2) does not prosecute his motion to review or appeal, he may –

(a) if in prison, notify his gaoler that he elects to continue to undergo his sentence; or

(b) if on bail, surrender to his gaoler –

and in either case his gaoler shall make the prescribed declaration and resume the execution of the imprisonment originally ordered.

122.   Power of court or judge to admit to bail

(1)  [Section 122 Subsection (1) amended by No. 108 of 1974, s. 38 and Sched. 1 ][Section 122 Subsection (1) amended by No. 10 of 1994, s. 7 and Sched. 2 ]Where a person committed to gaol by virtue of a summary conviction or order has been brought up by writ of habeas corpus, and the Supreme Court postpones the final decision of the case, the Court may admit the person to bail to secure his appearance at such time and place, and upon such conditions, as the Court may appoint.

(2)  If the judgment of the Supreme Court is against the person discharged, it may remand him to his former custody, there to serve the rest of the term for which he was committed.

123.   Appeals to Full Court

(1)  If a party to a motion to review, an appeal, or a case stated is dissatisfied with a rule or order of the Supreme Court in point of law or upon the admission or rejection of evidence he may, subject to this section, appeal from that rule or order to the Full Court.

(2)  The decisions of the Supreme Court on the hearing of an appeal as to –

(a) the sufficiency of the statement of a ground of appeal; or

(b) the amending or refusing to amend an order appealed against or a ground of appeal –

are not subject to appeal under this section.

(3)  On the hearing of an appeal under this section the Full Court may –

(a) draw any inference of fact;

(b) order –

(i) any judgment to be entered that ought to have been given; or

(ii) a hearing de novo on such terms as to costs or otherwise as it thinks just; and

(c) make such other orders as it thinks just and proper to ensure the determination on the merits of the real questions in controversy between the parties.

(4)  An appeal under this section shall not succeed on the ground merely of misdirection or improper reception or rejection of evidence, unless in the opinion of the Full Court substantial wrong or miscarriage has been thereby occasioned in the court below.

123A.   Bail where appeal to Full Court

[Section 123A Inserted by No. 40 of 1999, s. 9, Applied:16 Jul 1999] If an appeal is made to the Full Court under section 123 , the Full Court may, on the application of the appellant, make an order for bail for the appellant or refuse bail.

124.   Rules of court

The judges may make general rules and orders to regulate the practice and procedure under this Part, and for carrying this Part into effect, and, subject to the provisions of this Act, may prescribe the fees to be taken and the costs to be allowed.

125.   Costs on appeal

(1)  In proceedings under this Part the court or a judge may make such order as to costs, both in the Supreme Court and before the justices, as to the court or judge seems proper.

(2)  [Section 125 Subsection (2) omitted by No. 107 of 1976, s. 8 ].  .  .  .  .  .  .  .  

Division 6 - Appeals relating to bail

[Part XI, Div. 6 Inserted by No. 10 of 1994, s. 7 and Sched. 2 ]

125A.   No appeal if police bail refused

[Section 125A Inserted by No. 10 of 1994, s. 7 and Sched. 2 ]An appeal does not lie from a refusal to admit a person to bail under section 34 .

125B.   Appeal to magistrate

[Section 125B Inserted by No. 10 of 1994, s. 7 and Sched. 2 ]A person who has been refused bail, or who is aggrieved by an order for bail made by a justice or a condition to which any such order is subject, may appeal in the prescribed manner to a magistrate.

125C.   Appeal to Supreme Court

[Section 125C Inserted by No. 10 of 1994, s. 7 and Sched. 2 ]A person who is aggrieved by –

(a) an order for bail made by a magistrate; or

(b) a condition to which any such order for bail is subject; or

(c) a refusal of a magistrate to make an order for bail –

may appeal in the prescribed manner to a judge of the Supreme Court.

125D.   Appeal to be by way of rehearing

[Section 125D Inserted by No. 10 of 1994, s. 7 and Sched. 2 ]An appeal under this Division is to be by way of a venire de novo.

PART XII - Protection of Justices in the Execution of Their Office

126.   Action for act done within jurisdiction as a justice

(1)  An action brought against a justice for an act done by him in the execution of his duty as a justice with respect to a matter within his jurisdiction as a justice shall be an action as for a tort.

(2)  In the statement of claim or plaint it shall be expressly alleged that the act was done maliciously and without reasonable and probable cause.

(3)  If at the trial the plaintiff fails to prove the allegation mentioned in subsection (2) , he shall be non-suited, or a verdict shall be given for the defendant, with costs.

127.   Action for act done without or in excess of jurisdiction

(1)  An action against a justice for an act done by him in a matter –

(a) of which by law he has not jurisdiction; or

(b) in which he has exceeded his jurisdiction –

may be maintained by any person injured by that act or by any act done under any conviction or order made, or any warrant issued by the justice in that matter, in the same form and in the same cases as such an action might have been maintained before the passing of this Act.

(2)  In the statement of claim or plaint it is not necessary to allege that the act was done maliciously and without reasonable and probable cause.

(3)  No such action may be brought –

(a) for anything done under the conviction or order until after that conviction or order has been set aside, or has been quashed under Part XI ;

(b) for anything done under a warrant issued by the justice to procure the appearance of that person if the warrant has been followed by a conviction or order in the same matter until after that conviction or order has been set aside or has been quashed under Part XI ; or

(c) for anything done under a warrant issued by the justice to procure the appearance of that person if –

(i) the warrant has not been followed by a conviction or order in the same matter; or

(ii) the warrant was upon a complaint for an alleged indictable offence, and a summons had been issued previously to the warrant and duly served, and that person had not appeared according to the exigency thereof.

128.   No action maintainable for exercise of discretion, &c.

An action shall not be brought against a justice –

(a) for or by reason of the manner in which he has exercised his discretion in the execution of a discretionary power conferred on him by an Act;

(b) for anything done under a warrant of execution or of commitment on the ground of a defect in the conviction or order on which it was founded if, either before or after the granting of the warrant, the conviction or order has been confirmed or amended under Part XI ;

(c) by reason of a defect in a conviction or order made by some other justice on which he has bona fide and without collusion granted a warrant of execution or of commitment; or

(d) by reason of a want of jurisdiction in another justice by whom a conviction or order has been made on which he has bona fide and without collusion granted a warrant of execution or of commitment.

129.   Setting aside of proceedings when prohibited action brought

If an action is brought in the Supreme Court or a court of requests against a justice which by this Act is declared to be not maintainable a judge or a commissioner of that court of requests may, upon the application of the defendant, and upon an affidavit of the facts, set aside the proceedings in the action, with or without costs.

130.   Notice of action

(1)  An action shall not be brought against a justice for anything done by him in the execution of his office unless notice in writing of the intended action has been delivered to the justice or left for him at his usual place of abode by the party intending to commence the action, or by his attorney or solicitor.

(2)  The notice shall state clearly and explicitly the cause of action and the court in which it is intended to bring the action.

(3)  The notice shall be endorsed with the name and place of abode of the party intending to bring the action, and, if it is served by his attorney or solicitor, with the name and place of abode or of business of that attorney or solicitor.

131.   Where action may be brought

(1)  An action against a justice for anything done by him in the execution of his office may, subject to this section, be brought in the Supreme Court, or in a court of requests of competent jurisdiction.

(2)  Such an action shall not be continued in a court of requests if the justice, or his attorney, within 6 days after being served with the summons gives notice in writing to the plaintiff that he objects to being sued in the court of requests for the cause of action, and all proceedings afterwards had in that court in the action shall be null and void.

132.   Where plaintiff does not recover damages beyond amount tendered, judgment to be for defendant

If at the trial of an action subject to this Part, the court or jury find that the plaintiff is not entitled to damages beyond the amount, if any, tendered or paid into court –

(a) judgment shall be given for the defendant;

(b) the plaintiff shall not be at liberty to elect to be non-suited; and

(c) so much of the amount, if any, paid into court as is sufficient to pay the defendant's costs, shall be paid out of court to the defendant, and the residue, if any, to the plaintiff.

133.   Damages

[Section 133 Amended by No. 60 of 1971, s. 5 ]If the plaintiff in an action subject to this Part claims as damages the amount of a penalty or sum of money levied or paid under the conviction or order, or seeks to recover damages in respect of imprisonment suffered by him thereunder, and it is proved –

(a) that he was guilty of the offence of which he was convicted, or that he was liable by law to pay the sum he was ordered to pay; and

(b) that the imprisonment, if any, so suffered by him was no greater than the punishment assigned by law for the offence of which he was convicted, or for non-payment of the sum he was ordered to pay –

he is not entitled to recover the amount of the penalty or sum so levied or paid or any sum as damages for the imprisonment or any costs.

134.   Costs

(1)  Subject to section 133 , if the plaintiff in an action subject to this Part recovers a verdict, or obtains judgment by default, he is entitled, unless the court otherwise orders –

(a) to costs in the same manner as if this Act had not been passed; or

(b) if he has alleged in the statement of claim or plaint that the act complained of was done maliciously and without reasonable and probable cause, to his full costs as between solicitor and client.

(2)  Unless the court otherwise orders, the defendant in any such action, if he obtains judgment by verdict or otherwise, or if the plaintiff discontinues the action, is entitled to his full costs as between solicitor and client.

(3)  [Section 134 Subsection (3) amended by No. 55 of 1965, s. 5 ]If the plaintiff in any such action recovers a sum less than $20 as damages, he is not entitled to recover from the defendant any costs of suit.

PART XIII - Miscellaneous

135.   Warrant not to be void for form only

[Section 135 Amended by No. 66 of 1975, s. 3 ]A warrant of commitment or to apprehend shall not be held void by reason only of a defect or error therein if there is a conviction or order which is good and valid, or which may be amended and made good and valid, under this Act to sustain it.

136.   Protection of defective or irregular execution

(1)  [Section 136 Subsection (1) amended by No. 66 of 1975, s. 4 ]Where there is a defect or want of form in a conviction or order –

(a) execution made thereon under this Act shall be deemed not to be unlawful; and

(b) the person making the execution shall be deemed not to be a trespasser –

by reason thereof.

(2)  A person making an execution under this Act shall be deemed not to be a trespasser from the beginning by reason of an irregularity afterwards committed by him in the execution.

(3)  A person aggrieved by an irregularity as mentioned in subsection (2) may recover satisfaction for any special damage caused him by the irregularity.

136A.   Recording of depositions and proceedings

[Section 136A Inserted by No. 45 of 1986, s. 28 ]Where a deposition or the whole or part of proceedings in any cause or matter under this Act is recorded by mechanical means on to tapes or other apparatus –

(a) the tapes or apparatus shall be preserved for such period as may be prescribed in the rules made under section 144 ; and

(b) the person who recorded the deposition or the proceedings shall certify the recording to be a true and accurate record of the deposition or proceedings to which it relates.

137.   Fees

[Section 137 Substituted by No. 19 of 1965, s. 4 ]

(1)  [Section 137 Subsection (1) amended by No. 55 of 1984, s. 3 ][Section 137 Subsection (1) amended by No. 45 of 1986, s. 29 ]Fees shall not be received or demanded from –

(a) a public officer; or

(b) subject to subsection (1A) , a duly appointed officer of a statutory public body or board –

in respect of proceedings under this Act instituted by him in the execution of his duty.

(1A)  [Section 137 Subsection (1A) inserted by No. 55 of 1984, s. 3 ] Subsection (1) does not apply to a duly appointed officer of a municipality in respect of proceedings under this Act instituted by him pursuant to Part VII of the Local Government (Highways) Act 1982 where a composition has been made to the corporation of the municipality under section 100 (1) of that Act .

(2)  A person who is summarily convicted or against whom an order is made upon the complaint of a person exempted from payment of fees by this section shall pay the amount of the prescribed fees that would otherwise have been payable in respect of the proceedings if all documents used therein had been prepared by the clerk of petty sessions, and that amount shall for purposes of recovery be deemed to be costs ordered under section 77 .

(3)  Fees under subsection (2) that relate to the preparation of documents that were prepared not by the clerk of petty sessions but by the complainant shall when recovered be paid over to the complainant.

(4)  [Section 137 Subsection (4) omitted by No. 71 of 1993, s. 10 ].  .  .  .  .  .  .  .  

138.   Power to order delivery of possession of goods in custody of police officer

(1)  [Section 138 Subsection (1) amended by No. 40 of 1999, s. 10, Applied:16 Jul 1999] When possession has been taken by a police officer of property in relation to which an offence is alleged to have been committed and–

(a) proceedings taken against the alleged offender have terminated by his conviction or discharge; or

(b) the alleged offender is not known or cannot be found–

or when property reasonably supposed to have been stolen has come into the possession of a police officer, and in either case the police officer is not satisfied as to who is entitled to the property or the owner of the property is not known or cannot be found, the officer may apply to a court of petty sessions for directions for the disposal of the property.

(2)  The justices, after such inquiry as they may think sufficient, may make an order for the delivery of the property to any person who appears to them to be entitled thereto, or if no claim to the property is established may make an order that it shall be sold or otherwise disposed of, and that the net proceeds of the sale, if any, shall be paid into the Consolidated Revenue if no claim thereto is established within 3 months after the date of their order.

(3)  If there are several claimants to the property, the justices, after hearing the several claimants appearing before them, may make an order for the delivery of the property on such terms as they may think necessary for securing the safe custody thereof pending any action which may be brought for the recovery thereof.

(4)  An order under this section does not prejudice the right of a person to recover in a court of competent jurisdiction the property to which the order relates from the person to whom it is so delivered if proceedings for the recovery thereof are taken within 6 months after the order is made.

139.   Prisoner to be present for statement under Evidence Act 1910

Where a prisoner in custody has served or received notice of an intention to take a statement as provided in section 135 of the Evidence Act 1910 –

(a) a judge;

(b) a justice by whom the prisoner was committed;

(c) a magistrate; or

(d) one of the visiting justices of the gaol in which the prisoner is confined –

may, by an order in writing, direct the gaoler having the custody of the prisoner to convey him to the place mentioned in the notice for the purpose of being present at the taking of the statement, and the gaoler shall convey the prisoner or cause him to be conveyed accordingly, and the expenses of his conveyance shall be paid out of the funds applicable to the other expenses of the gaol.

140.   

[Section 140 Substituted by No. 33 of 1963, s. 12 ][Section 140 Amended by No. 55 of 1965, s. 5 ][Section 140 Amended by No. 23 of 1973, s. 4 ][Section 140 Amended by No. 93 of 1986, s. 4 ][Section 140 Subsection (1) substituted by No. 108 of 1974, s. 33 ][Section 140 Subsection (1) amended by No. 66 of 1975, s. 4 ][Section 140 Subsection (1) substituted by No. 66 of 1995, s. 17 ][Section 140 Subsection (1A) inserted by No. 108 of 1974, s. 33 ][Section 140 Subsection (2) amended by No. 93 of 1986, s. 4 ][Section 140 Subsection (2A) inserted by No. 108 of 1974, s. 33 ][Section 140 Subsection (2B) substituted by No. 93 of 1986, s. 4 ][Section 140 Subsection (3) amended by No. 108 of 1974, s. 33 ][Section 140 Subsection (4A) amended by No. 93 of 1986, s. 4 ][Section 140 Subsection (4B) inserted by No. 108 of 1974, s. 33 ][Section 140 Subsection (4B) amended by No. 93 of 1986, s. 4 ][Section 140 Subsection (5) amended by No. 108 of 1974, s. 33 ][Section 140 Subsection (5) substituted by No. 93 of 1986, s. 4 ][Section 140 Subsection (6) substituted by No. 108 of 1974, s. 33 ][Section 140 Subsection (7) omitted by No. 93 of 1986, s. 4 ][Section 140 Subsection (9) inserted by No. 108 of 1974, s. 33 ][Section 140 Subsection (11) added by No. 93 of 1986, s. 4 ][Section 140 Repealed by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] .  .  .  .  .  .  .  .  

140A.   

[Section 140A Inserted by No. 108 of 1974, s. 34 ][Section 140A Subsection (1) amended by No. 93 of 1986, s. 4 ][Section 140A Repealed by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] .  .  .  .  .  .  .  .  

140B.   

[Section 140B Inserted by No. 82 of 1987, s. 4 ][Section 140B Repealed by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] .  .  .  .  .  .  .  .  

141.   Payment of fees

(1)  A copy of the table of fees in force for the time being shall be conspicuously exhibited at each place appointed by the Governor, or ordinarily used, for holding courts of petty sessions and the office of each clerk of petty sessions, and at the foot of each copy there shall be printed section 137 .

(2)  A justice or clerk of petty sessions may refuse to do any act or thing in respect of which a fee is payable under this Act unless that fee is first duly paid.

(3)  If any such act or thing is done, and the fee due thereon is not paid, the clerk to whom the fee should have been paid may recover it in a summary way before a justice.

(4)  Where it appears to be conducive to the ends of justice that any such fee should be remitted or paid back, or that the person by whom it is payable is unable to pay, a justice may remit the fee or direct it to be paid back, or direct that it shall not be payable, and thereupon the fee shall be remitted or paid back or not be payable, as the case may be.

(5)  Where it is not otherwise expressly appointed, every such fee shall, in the first instance, be payable, and paid by the party (whether prosecutor or otherwise) on whose behalf or at whose instance the particular act or thing is done, or required to be done, but shall be eventually repaid to him by the defendant or adverse party if the justices think fit so to order.

142.   Accounts to be kept

Clerks of petty sessions and gaolers shall –

(a) keep a true and exact account of all money received by them under or by virtue of a conviction or order, showing the persons from whom and the time when the sums were received, and to whom and when the sums were paid, in such form and manner as the Auditor-General may determine; and

(b) once in every month, render a true copy of their accounts to the Treasury.

143.   Appropriation of penalties and fees

(1)  [Section 143 Subsection (1) amended by No. 108 of 1974, s. 35 ][Section 143 Subsection (1) amended by No. 51 of 1982, s. 11 ][Section 143 Subsection (1) substituted by No. 45 of 1987, s. 21 and Sched. 1 ][Section 143 Subsection (1) amended by No. 46 of 1991, s. 4 and Sched. 2 ]Subject to the Penalties Remission Act 1934 and to subsections (3) and (3A) , and except as otherwise provided by section 123 of the Local Government (Highways) Act 1982 or any provision of any other Act which makes special provision with respect to the payment of fines and penalties, all fines and penalties imposed upon summary conviction before justices, and any incidental fees shall be paid into the Consolidated Revenue.

(2)  [Section 143 Subsection (2) omitted by No. 45 of 1987, s. 21 and Sched. 1 ].  .  .  .  .  .  .  .  

(3)  This section does not deprive an informer of any moiety or share of a fine or penalty.

(3A)  [Section 143 Subsection (3A) inserted by No. 108 of 1974, s. 35 ]Notwithstanding anything contained in subsection (1) , fees incidental to complaints of simple offences and recoverable on conviction thereof are payable as provided in the rules made under section 144 .

(4)  [Section 143 Subsection (4) substituted by No. 45 of 1987, s. 21 and Sched. 1 ]Fees incidental to complaints for breach of duty shall be paid into the Consolidated Revenue.

(5)  [Section 143 Subsection (5) substituted by No. 45 of 1987, s. 21 and Sched. 1 ]Fees incidental to other proceedings before justices shall be paid into the Consolidated Revenue.

143A.   Savings provisions

[Section 143A Inserted by No. 17 of 1996, s. 30, incorporation of savings provisions from No. 8 of 1988, No. 82 of 1987, No. 10 of 1993 and No. 72 of 1993 ]

(1)  Where proceedings in respect of an application made under section 106A , as in force immediately before the day fixed under section 2 (2) of the Justices Amendment Act 1988 , have not been determined before that day, Part XA , as in force immediately before that day, continues to apply to those proceedings.

(2)  Section 140B applies only to the hearing of a complaint by a court of summary jurisdiction that is commenced on or after the day on which the Justices Amendment (Addresses on Sentences) Act 1987 commences.

(3)  The amendments made by the Justices Amendment (Fine Defaulters) Act 1993 extend to a person who has been adjudged to pay a sum of money, with or without costs, or for costs alone imposed before the commencement of that Act that was outstanding wholly or in part on that commencement, notwithstanding any period of imprisonment specified in an order made, or warrant issued, under this Act as in force immediately before that commencement.

(4)  For the purposes of subsection (3) , where on the commencement of the Justices Amendment (Fine Defaulters) Act 1993 a person has served part of a term of imprisonment imposed in default of payment of a sum of money as mentioned in that subsection, the balance of that term is to be calculated in accordance with the amendments made by that Act, notwithstanding the period specified in the order or warrant by virtue of which he or she was committed to prison.

(5)  If, before the commencement of the Justice (Miscellaneous Amendments) Act 1993 –

(a) a copy of a summons was served on the Crown Solicitor or the Solicitor-General under section 304 of the Criminal Code , that copy is to be taken as having been served on the Director of Public Prosecutions; or

(b) any act or thing was done by or in respect of the Crown Solicitor under section 368A of the Criminal Code in relation to a notice of alibi, that act or thing is to be taken as having been done by or in respect of the Director of Public Prosecutions; or

(c) a copy of an order disqualifying a person for serving as a juror was sent to the Crown Solicitor under section 7 of the Jury Act 1899 , that copy is to be taken as having been sent to the Director of Public Prosecutions.

144.   Rules of procedure

(1)  [Section 144 Subsection (1) amended by No. 108 of 1974, s. 36 ]The Governor may make rules for regulating the procedure and practice to be followed in courts of summary jurisdiction and by clerks of petty sessions.

(2)  [Section 144 Subsection (2) omitted by No. 108 of 1974, s. 36 ].  .  .  .  .  .  .  .  

(3)  [Section 144 Subsection (3) omitted by No. 108 of 1974, s. 36 ].  .  .  .  .  .  .  .  

(4)  [Section 144 Subsection (4) amended by No. 8 of 1961, s. 5 ][Section 144 Subsection (4) amended by No. 108 of 1974, s. 36 ][Section 144 Subsection (4) amended by No. 66 of 1975, s. 6 ][Section 144 Subsection (4) amended by No. 45 of 1986, s. 30 ][Section 144 Subsection (4) amended by No. 10 of 1994, s. 7 and Sched. 2 ]Without prejudice to the generality of subsection (1) , the power to make rules conferred by this section includes the power to make provision as to –

(a) the practice and procedure of justices out of sessions;

(b) the execution of convictions and orders;

(c) the entry of summary judgment upon obligations of a civil nature enforceable as breaches of duty;

(ca) the simple offences and breaches of duty in respect of which a defendant who is served with a summons to answer a complaint of such an offence or breach is, on filing a plea of guilty or not guilty to the charge in the complaint, not required to appear as summoned;

(cb) the practice and procedure relating to the filing of pleas of guilty by defendants to complaints of simple offences and breaches of duty prescribed for the purposes of paragraph (ca) ;

(cc) the issue of summonses to persons who are charged with simple offences and breaches of duty requiring them to appear before justices for the taking of pleas only;

(cd) the hearing and determination in the absence of the defendant of complaints for simple offences and breaches of duty where the defendant has failed to appear as summoned or in accordance with his admission to bail, and the taking at such a hearing of the complaint as admitted, but with a right in the defendant to have the conviction or order then made vacated and the complaint reheard, except where he has filed a plea of guilty before the hearing;

(d) the giving of security under this Act;

(e) the keeping of records of proceedings before justices, and the manner in which things done in the course of, or as preliminary or incidental to, any such proceedings may be proved in any legal proceedings;

(ea) the providing to persons of transcripts of recordings of depositions and proceedings, and copies of recordings of proceedings, in any cause or matter under this Act and the fees payable for transcripts and copies of recordings of proceedings in any such cause or matter and the exemption from the payment of those fees in cases prescribed in the rules;

(eb) the period for the preservation of tapes or other apparatus on to which depositions or proceedings in any cause or matter under this Act are recorded;

(ec) the settlement of disputes as to the accuracy of transcripts of recordings of depositions and proceedings, and copies of recordings of proceedings, in any cause or matter under this Act;

(ed) the oaths to be taken by persons who –

(i) record depositions or proceedings in any cause or matter under this Act;

(ii) transcribe the recordings of those depositions and proceedings; or

(iii) copy the recordings of those proceedings;

(f) the fees, costs, and charges under this Act, or under any other Act for the time being in force, so far as they relate to any matter or proceeding as to which justices have jurisdiction, including fees for service and execution of process, including service by post;

(fa) the travelling and other expenses payable to witnesses under this Act and the advances (whether periodical or otherwise) that may be made to those witnesses on account of those expenses;

(fb) the practice and procedure relating to appeals to magistrates, and reviews of orders by magistrates, under this Act and the fees, costs, and charges payable in respect of those appeals and reviews; and

(g) any other matter in relation to which rules are authorized or required by this Act to be made, or are contemplated under this Act, or are necessary or convenient for the purpose of carrying this Act into effect.

(5)  Rules may be made under this section in respect of the practice and procedure under other Acts, notwithstanding any provision to the contrary therein, so that rules under this section shall prevail over and supersede any enactment therein on the same subject.

(6)  [Section 144 Subsection (6) added by No. 19 of 1965, s. 5 ]Where rules are made under this section for the issue of summonses for summary offences without a prior complaint, such a summons shall contain a statement of the charge to be answered, which statement shall be deemed to be a complaint made before a justice and the summons to be a summons issued thereon.

145.   Regulations

The Governor may make regulations for the purposes of Part III .

SCHEDULE 1 - Acts Repealed

Section 2

SCHEDULE 2

[Schedule 2 Substituted by No. 108 of 1974, s. 37 ][Schedule 2 Amended by No. 75 of 1983, s. 6 ][Schedule 2 Amended by No. 45 of 1986, s. 31 ]

Section 71

1.   Sections of the Criminal Code

234 , 237 , 239 , 250 , 252 , 252A , 253 , 258 , 300 .

SCHEDULE 3

[Schedule 3 Inserted by No. 108 of 1974, s. 37 ][Schedule 3 Amended by No. 75 of 1983, s. 7 ][Schedule 3 Amended by No. 51 of 1985, s. 4 and Sched. 2 ][Schedule 3 Amended by No. 45 of 1986, s. 32 ][Schedule 3 Amended by No. 66 of 1995, s. 18 ]

Section 72

PART I

1.   Sections of the Criminal Code

107 , 108 , 113 , 127 , 192 .

PART II

1.   Sections of the Criminal Code

234 , 237 , 239 , 250 , 252 , 252A , 253 , 258 , 300 .