Criminal Procedure Act 1986 No 209
Current version for 28 October 2014 to date (accessed 27 December 2014 at 10:33)
Chapter 3Part 3Division 2

Division 2 Commencement and nature of proceedings

126   Signing of indictments

(1)  An indictment shall be signed:
(a)  by the Attorney General, the Solicitor General or the Director of Public Prosecutions, or
(b)  for and on behalf of the Attorney General or the Director of Public Prosecutions by:
(i)  a Crown Prosecutor,
(ii)  a Deputy Director of Public Prosecutions, or
(iii)  a person authorised under subsection (2) to sign indictments.
(2)  The Director of Public Prosecutions may, by order in writing, authorise a person to sign indictments for and on behalf of the Director.
(3)  It shall be presumed, in the absence of evidence to the contrary, that an indictment signed by a person for and on behalf of the Attorney General or the Director of Public Prosecutions was signed by a person authorised to do so.
(4)  A certificate signed by the Director of Public Prosecutions to the effect that a specified person was authorised during a specified period to sign indictments for and on behalf of the Director is admissible in evidence in any legal proceedings and is evidence of the matters certified.

127   Manner of presenting indictments

The regulations and (subject to the regulations) the rules of court may make provision for or with respect to the manner of presenting indictments (including by the filing of the indictment in a court registry).

128   Directions as to indictments to be presented in District Court

(1)  The Chief Justice of the Supreme Court may issue a practice note on behalf of the Supreme Court giving directions to prosecutors with respect to the classes of indictments that are to be presented to the District Court rather than the Supreme Court.
(2)  The Chief Justice may exempt a particular indictment from any such direction.
(3)  The Supreme Court may reject an indictment:
(a)  that is of a class to which any such direction applies, and
(b)  that was presented after the direction was given, and
(c)  that has not been exempted from the direction by the Chief Justice.
(4)  The rejection of an indictment does not preclude the presentation of a further indictment in accordance with any such direction.

129   Time within which indictment to be presented

(1)  In this section, relevant court, in relation to a matter, means the Supreme Court or the District Court before which the matter has been listed for trial or mention.
(2)  An indictment is to be presented within 4 weeks after the committal of the accused person for trial, except as provided by this section.
(3)  The time within which the indictment is to be presented may be extended:
(a)  by the regulations or (subject to the regulations) the rules of the relevant court, or
(b)  by order of the relevant court.
(4)  If an indictment is not presented within the time required by this section, the relevant court may:
(a)  proceed with the trial if an indictment has been presented, or
(b)  adjourn the proceedings, or
(c)  take such other action as it thinks appropriate in the circumstances of the case.
(5)  The prosecutor has no right to an adjournment merely because an indictment has not been presented.
(6)  The relevant court must, in exercising any power under this section, have regard to the fact that the Crown does not have a right of appeal if the accused person is acquitted.
(7)  This section does not affect the powers of the relevant court under section 21.

130   Trial proceedings after presentation of indictment and before empanelment of jury

(1)  In this section, court means the Supreme Court or District Court.
(2)  The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial.
(3)  If proceedings are held for the purpose of making any such orders after the indictment is presented to commence the trial and before the jury is empanelled:
(a)  the proceedings are part of the trial of the accused person, and
(b)  the accused person is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial.
(4)  Nothing in this section requires a jury to be empanelled if the accused person pleads guilty to an offence during proceedings to which this section applies.
(5)  This section applies to proceedings in respect of indictments presented after the commencement of this section.

130A   Pre-trial orders and orders made during trial bind trial Judge

(1)  A pre-trial order made by a Judge in proceedings on indictment is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding.
(2)  If, on an appeal against a conviction for an offence in proceedings on indictment, a new trial is ordered, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to the proceedings from which the conviction arose is binding on the trial Judge hearing the fresh trial proceedings unless:
(a)  in the opinion of the trial Judge hearing the fresh trial proceedings, it would not be in the interests of justice for that order to be binding, or
(b)  that order is inconsistent with an order made on appeal.
(3)  If proceedings on indictment before a trial Judge are discontinued for any reason, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to those proceedings is binding on a trial Judge hearing any subsequent trial proceedings relating to the same offence as the discontinued proceedings unless, in the opinion of the trial Judge hearing the subsequent trial proceedings, it would not be in the interests of justice for the order to be binding.
(4)  In this section, pre-trial order means any order made after the indictment is first presented but before the empanelment of a jury for a trial.

131   Trial by jury in criminal proceedings

Criminal proceedings in the Supreme Court or the District Court are to be tried by a jury, except as otherwise provided by this Part.

132   Orders for trial by Judge alone

(1)  An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a trial by judge order).
(2)  The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone.
(3)  If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order.
(4)  If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so.
(5)  Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness.
(6)  The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner.
(7)  The court may make a trial by judge order despite any other provision of this section or section 132A if the court is of the opinion that:
(a)  there is a substantial risk that acts that may constitute an offence under Division 3 of Part 7 of the Crimes Act 1900 are likely to be committed in respect of any jury or juror, and
(b)  the risk of those acts occurring may not reasonably be mitigated by other means.

132A   Applications for trial by judge alone in criminal proceedings

(1)  An application for an order under section 132 that an accused person be tried by a Judge alone must be made not less than 28 days before the date fixed for the trial in the Supreme Court or District Court, except with the leave of the court.
(2)  An application must not be made in a joint trial unless:
(a)  all other accused person apply to be tried by a Judge alone, and
(b)  each application is made in respect of all offences with which the accused persons in the trial are charged that are being proceeded with in the trial.
(3)  An accused person or a prosecutor who applies for an order under section 132 may, at any time before the date fixed for the accused person’s trial, subsequently apply for a trial by a jury.
(4)  Rules of court may be made with respect to applications under section 132 or this section.

133   Verdict of single Judge

(1)  A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.
(2)  A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
(3)  If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.
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