Criminal Procedure Act 1986 No 209
Current version for 28 October 2014 to date (accessed 22 December 2014 at 20:11)
Chapter 2

Chapter 2 General provisions

Part 1 Offences

5   Certain offences to be dealt with on indictment

(1)  An offence must be dealt with on indictment unless it is an offence that under this or any other Act is permitted or required to be dealt with summarily.
(2)  An offence may be dealt with on indictment if it is an offence that under this or any other Act is permitted to be dealt with summarily or on indictment.

6   Certain offences to be dealt with summarily

(1)  The following offences must be dealt with summarily:
(a)  an offence that under this or any other Act is required to be dealt with summarily,
(b)  an offence that under this or any other Act is described as a summary offence,
(c)  an offence for which the maximum penalty that may be imposed is not, and does not include, imprisonment for more than 2 years, excluding the following offences:
(i)  an offence that under any other Act is required or permitted to be dealt with on indictment,
(ii)  an offence listed in Table 1 or 2 to Schedule 1.
(2)  An offence may be dealt with summarily if it is an offence that under this or any other Act is permitted to be dealt with summarily or on indictment.

7   Certain summary offences may be dealt with by Local Court

(1)  An offence that is permitted or required to be dealt with summarily is to be dealt with by the Local Court.
(2)  This section does not apply to an offence that, under this or any other Act, is required to be dealt with summarily otherwise than by the Local Court.

8   Prosecution of indictable offences

(1)  All offences shall be punishable by information (to be called an indictment) in the Supreme Court or the District Court, on behalf of the Crown, in the name of the Attorney General or the Director of Public Prosecutions.
(2)  Such an indictment may be presented or filed whether or not the person to whom the indictment relates has been committed for trial in respect of an offence specified in the indictment.
(3)  This section does not apply to offences that is required to be dealt with summarily.
(4)  This section does not affect any law or practice that provides for an indictable offence to be dealt with summarily.

9   Name in which prosecutions may be instituted

Any prosecution or proceedings instituted by the Attorney General or the Director of Public Prosecutions in respect of any offence (whether an indictable offence or a summary offence) may be instituted in either the official name or the personal name of the Attorney General or the Director of Public Prosecutions.

10   Indictment of bodies corporate

(1)  Unless a contrary intention appears, a provision of an Act relating to an offence applies to bodies corporate as well as to individuals.
(2)  On arraignment, a body corporate may enter a plea of “guilty” or “not guilty” by means of writing signed by its representative.
(3)  If no such plea is entered the court is to enter a plea of “not guilty”, and the trial is to proceed as though the body corporate had pleaded “not guilty”.
(4)  A representative of a body corporate need not be appointed under the body’s seal.
(5)  A written statement that:
(a)  purports to be signed by one of the persons having the management of the affairs of the body corporate, and
(b)  contains a statement to the effect that a named person is the body’s representative,
is admissible as evidence that the named person has been so appointed.

11   Description of offences

The description of any offence in the words of an Act or statutory rule or other document creating the offence, or in similar words, is sufficient in law.

12   Short description of certain offences

(1)  For the purposes of this or any other Act, a summary offence, or an indictable offence that may be dealt with summarily, is taken to be sufficiently stated or described if it is stated or described by the use of a short expression that describes the offence in general terms.
(2)  This section applies to a statement or description of an offence in any court attendance notice, warrant, subpoena, notice, order or other document.
(3)  Nothing in this section affects any other method of stating or describing an offence.
(4)  Nothing in this section affects any requirement made by or under this Act in relation to the form of a court attendance notice or any other document.

13   Venue in indictment

(1)  New South Wales is a sufficient venue for all places, whether the indictment is in the Supreme Court or any other court having criminal jurisdiction.
(2)  However, some district or place within, at or near which the offence is charged to have been committed must be mentioned in the body of the indictment.
(3)  Any such district or place is to be taken to be in New South Wales, and within the jurisdiction of the court, unless the contrary is shown.

14   Common informer

(cf Fines and Penalties Act 1901 sec 4)

A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons.

Part 2 Indictments and other matters

15   Application of Part

(1)  This Part applies, to the extent that it is capable of being applied, to all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with.
(2)  In this Part:

indictment includes a court attendance notice or any other process or document by which criminal proceedings are commenced.

16   Certain defects do not affect indictment

(1)  An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds:
(a)  for the improper insertion or omission of the words “as appears by the record”, “with force and arms”, “against the peace”, “against the form of the statute” or “feloniously”,
(b)  for want of an averment of any matter unnecessary to be proved or necessarily implied,
(c)  for want of a proper or perfect venue or a proper or formal conclusion,
(d)  for want of any additional accused person or for any imperfection relating to any additional accused person,
(e)  for want of any statement of the value or price of any matter or thing, or the amount of damage or injury, if such value, price or amount is not of the essence of the offence,
(f)  for designating any person by the name of his or her office, or other descriptive appellation, instead of by his or her proper name,
(g)  except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly,
(h)  for stating an offence to have been committed on a day subsequent to the finding of the indictment, on an impossible day or on a day that never happened,
(i)  if the indictment was signed by an Australian legal practitioner who has been instructed to prosecute the proceedings to which the indictment relates on behalf of the Director of Public Prosecutions—for failure by the Director to authorise the Australian legal practitioner by order in writing under section 126 (2) to sign indictments for and on behalf of the Director.
(2)  No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of:
(a)  any alleged defect in it in substance or in form, or
(b)  any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant.
Note. An adjournment may be obtained under section 40 where there is a variance between the evidence adduced and the offence charged in the application or order.

17   When formal objections to be taken

(1)  An objection to an indictment for a formal defect apparent on its face must be taken, by demurrer or motion to quash the indictment, before the jury is sworn.
(2)  The court before which the objection is taken may cause the indictment to be amended and, in that case, the trial is to proceed as if there had been no defect.

18   Judgment on demurrer to indictment

The judgment against the accused person on demurrer is to be that the person “answer over” to the charge.

19   Traversing indictment

(1)  No traverse is to be allowed, or trial postponed, or time to plead to the indictment given, unless the court so orders.
(2)  However, if the court is of the opinion that the accused person ought to be allowed time, either to prepare for his or her defence or for any other reason, the court is to postpone the trial on such terms as it considers fit.

20   Amendment of indictment

(1)  An indictment may not be amended after it is presented, except by the prosecutor:
(a)  with the leave of the court, or
(b)  with the consent of the accused.
(2)  This section does not affect the powers of the court under section 21.
(3)  For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.

21   Orders for amendment of indictment, separate trial and postponement of trial

(1)  If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case.
(2)  If of the opinion:
(a)  that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or
(b)  that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment,
the court may order a separate trial of any count or counts of the indictment.
(3)  If of the opinion that the postponement of an accused person’s trial is expedient as a consequence of it having amended an indictment or ordered a separate trial of a count, the court may make such order as appears necessary.
(4)  An order under this section may be made either before trial or at any stage during the trial.
(5)  The following provisions apply if an order is made under this section for a separate trial or for the postponement of a trial:
(a)  if the order is made during the trial, the court may order that the jury be discharged from giving a verdict:
(i)  on the count or counts in respect of which the trial is postponed, or
(ii)  on the indictment,
as the case may be,
(b)  the procedure on the separate trial of a count, and the procedure on the postponed trial, are to be the same in all respects (if the jury has been discharged) as if the trial had not commenced,
(c)  subject to the Bail Act 2013, the court may commit the accused person to a correctional centre.
(6)  Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes.

22   Amended indictment

(1)  If any indictment is amended, a note of the order for amendment is to be endorsed on the indictment, and the indictment in its amended form is to be treated as the indictment for the purposes of the trial and all proceedings in connection with or consequent on the trial.
(2)  Any verdict or judgment given after the amendment of an indictment is to have the same force and effect as if the indictment had originally been in its amended form.
(3)  If it is necessary at any time to draw up a formal record of an indictment, the record may be drawn up in the words and form of the amended indictment, without notice of the fact of the amendment.

23   Indictment may contain up to 3 similar counts

(1)  Up to 3 counts may be inserted in the same indictment, against the same person, for distinct offences of the same kind committed against the same person.
(2)  This section does not apply if more than 6 months have elapsed between the first and last of the offences.
(3)  Nothing in this section affects the right of the Crown to insert alternative counts in any indictment.

24   Accessories may be charged together in one indictment

Any number of accessories (whether before or after the fact) may be charged with substantive serious indictable offences in the same indictment, and may be tried together, even though the principal offender is not included in the indictment, not in custody or not amenable to justice.

25   Indictment charging previous offence also

In an indictment against a person for an offence committed after the person was convicted of some previous offence (whether indictable or otherwise) it is sufficient, after charging the subsequent offence, to state that the accused person was (at a specified time and place) convicted of the previous offence, without particularly describing the previous offence.

26   Description of written instruments

If:
(a)  an indictment relates to an instrument that is written or printed, or partly written and partly printed, or
(b)  it is necessary to make an averment in an indictment with respect to an instrument that is written or printed, or partly written and partly printed,
it is sufficient to describe the instrument by any name or designation by which it is usually known, or by its purport, without setting out a copy of the instrument, or otherwise describing the instrument, and without stating the value of the instrument.

27   Supreme Court rules may prescribe forms of indictments

(1)  Without limiting the rule-making powers conferred by the Supreme Court Act 1970, rules may from time to time be made under that Act prescribing forms of indictments, records, informations, depositions, convictions, warrants and processes in all courts for any offence.
(2)  Any form prescribed by those rules is taken to be sufficient for the purpose, and to sufficiently state the offence, for which it is prescribed.

Part 3 Criminal proceedings generally

28   Application of Part and definition

(1)  This Part applies, to the extent that it is capable of being applied, to all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with.
(2)  In this Part:

Judge includes a Magistrate, a Children’s Court Magistrate, an Industrial Magistrate, the President or a judicial member of the Industrial Relations Commission and any other person of a class prescribed by the regulations for the purposes of this definition.

29   When more than one offence may be heard at the same time

(1)  A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances:
(a)  the accused person and the prosecutor consent,
(b)  the offences arise out of the same set of circumstances,
(c)  the offences form or are part of a series of offences of the same or a similar character.
(2)  A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances:
(a)  the accused persons and the prosecutor consent,
(b)  the offences arise out of the same set of circumstances,
(c)  the offences form or are part of a series of offences of the same or a similar character.
(3)  Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.

30   Change of venue

In any criminal proceedings, if it appears to the court:
(a)  that a fair or unprejudiced trial cannot otherwise be had, or
(b)  that for any other reason it is expedient to do so,
the court may change the venue, and direct the trial to be held in such other district, or at such other place, as the court thinks fit, and may for that purpose make all such orders as justice appears to require.

31   Abolition of accused person’s right to make unsworn statement or to give unsworn evidence

Any rule of law, procedure or practice that permits a person who is charged with the commission of a criminal offence to make an unsworn statement or to give unsworn evidence in answer to the charge is abolished.

32   Indemnities

(1)  The Attorney General may, if of the opinion that it is appropriate to do so, grant a person an indemnity from prosecution (whether on indictment or summarily):
(a)  for a specified offence, or
(b)  in respect of specified acts or omissions.
(2)  If the Attorney General grants such an indemnity, no proceedings may thereafter be instituted or continued against the person in respect of the offence or the acts or omissions.
(3)  Such an indemnity may be granted conditionally or unconditionally.
(4)  Such an indemnity may not be granted in respect of a summary offence that is not a prescribed summary offence, unless the Attorney General has consulted the Minister administering the enactment or instrument under which the offence is created.

33   Undertakings

(1)  The Attorney General may, if of the opinion that it is appropriate to do so, give to a person an undertaking that:
(a)  an answer that is given, or a statement or disclosure that is made, by the person in the course of giving evidence in specified proceedings, or
(b)  the fact that the person discloses or produces a document or other thing in specified proceedings,
being proceedings for an offence against a law of the State (whether an indictable offence or a summary offence), will not be used in evidence against the person.
(2)  If the Attorney General gives such an undertaking:
(a)  an answer that is given, or a statement or disclosure that is made, by the person in the course of giving evidence in the specified proceedings, or
(b)  the fact that the person discloses or produces a document or other thing in the specified proceedings,
is not admissible in evidence against the person in any civil or criminal proceedings, other than proceedings in respect of the falsity of evidence given by the person.
(3)  Such an undertaking may be given conditionally or unconditionally.
(4)  Such an undertaking may not be given in respect of a summary offence that is not a prescribed summary offence, unless the Attorney General has consulted the Minister administering the enactment or instrument under which the offence is created.

34   Practice as to entering the dock

The Judge may order the accused person to enter the dock or other place of arraignment or may allow him or her to remain on the floor of the court, and in either case to sit down, as the Judge considers appropriate.

35   Right to inspect depositions on trial

An accused person is entitled on his or her trial to inspect, without fee, all depositions taken against the person and returned to, or held by, the court before which he or she is on trial.

36   Representation and appearance

(1)  A prosecutor or accused person may appear personally or by an Australian legal practitioner or other person empowered by an Act or other law to appear for the prosecutor or accused person.
(2)  A prosecutor who is a police officer may appear personally or by a person permitted by subsection (1) or by a police prosecutor.

36A   Representation and appearance in penalty notice matters

(1)  In any criminal proceedings relating to an offence for which a penalty notice was issued under this or any other Act, the prosecutor of the offence may be represented and appear by a police prosecutor.
(2)  Nothing in this section:
(a)  requires a police prosecutor to represent or appear for any person, or
(b)  prevents any person from appearing personally, or being represented and appearing by an Australian legal practitioner or other person empowered by an Act or other law to appear for the person, in any proceedings.

37   Conduct of case

(1)  The prosecutor’s case may be conducted by the prosecutor or by the prosecutor’s Australian legal practitioner or any other person permitted to appear for the prosecutor (whether under this or any other Act).
(2)  The accused person’s case may be conducted by the accused person or by the accused person’s Australian legal practitioner or any other person permitted to appear for the accused person (whether under this or any other Act).

38   Hearing procedures to be as for Supreme Court

In any proceedings for an offence (other than in the Supreme Court for an indictable offence), the procedures and practice for the examination and cross-examination of witnesses, and the right to address the court on the case in reply or otherwise, are, as far as practicable, to be conducted in accordance with Supreme Court procedure for the trial of an indictable offence.

39   Recording of evidence

(1)  The evidence of each witness in criminal proceedings must be recorded.
(2)  Rules may be made for or with respect to the manner in which the evidence may be recorded and the authentication of evidence or of transcripts of evidence given in proceedings.

40   Adjournments generally

(1)  A court may at any stage of criminal proceedings adjourn the proceedings generally, or to a specified day, if it appears to the court necessary or advisable to do so.
(2)  An adjournment may be in such terms as the court thinks fit.
(3)  A matter that is adjourned generally must be listed before the court or a registrar not later than 2 years after the adjournment.
(4)  Without limiting subsection (1), a court may, at the request of an accused person, adjourn criminal proceedings if it appears to the court that a variance between any process or document by which the proceedings were commenced and the evidence adduced in respect of the offence charged in that process or document is such that the accused person has been misled by the variance.

41   How accused person to be dealt with during adjournment

(1)  A court may, if bail is not dispensed with or granted to an accused person for the period of an adjournment, remand the accused person to a correctional centre or other place of security during the adjournment.
(2)  The warrant of commitment may be signed by any Judge or authorised officer.
(3)  A Judge may at any time, by written notice to the parties, shorten or end an adjournment if the accused person is not in custody.

42   Witnesses in mitigation

(1)  After convicting an accused person of an offence, and before passing sentence, the court may summon witnesses and examine them on oath in respect of any matter in mitigation of the offence.
(2)  The court may do so on application made by or on behalf of the Crown or by or on behalf of the accused person.

43   Restitution of property

(1)  In any criminal proceedings in which it is alleged that the accused person has unlawfully acquired or disposed of property, the court may order that the property be restored to such person as appears to the court to be lawfully entitled to its possession.
(2)  Such an order may be made whether or not the court finds the person guilty of any offence with respect to the acquisition or disposal of the property.
(3)  Such an order may not be made in respect of:
(a)  any valuable security given by the accused person in payment of a liability to which the person was subject when the payment was made, or
(b)  any negotiable instrument accepted by the accused person as valuable consideration in circumstances in which the person had no notice, or cause to suspect, that the instrument had been dishonestly come by.

44   When case not to be proceeded with: accused person to be released from custody

(1)  On deciding that no further proceedings are to be taken with respect to a person who is in custody on remand, whether or not the person has been committed for trial, the Attorney General or Director of Public Prosecutions may cause a certificate to that effect, in the form prescribed by the regulations, to be delivered to the Supreme Court.
(2)  On receipt of such a certificate, the Supreme Court may, by order, direct that the person to whom the certificate relates be released from custody.
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