(1) This Chapter applies to or in respect of proceedings for summary offences, including proceedings for indictable offences that are being dealt with summarily.(2) Parts 2 and 3 apply to the following proceedings:(a) proceedings before the Local Court,(b) (Repealed)(c) proceedings before an Industrial Magistrate,(d) (Repealed)(e) any other proceedings prescribed by the regulations.(2A) Part 4 applies to the following proceedings:(a) proceedings before the Local Court,(b) proceedings before the District Court,(c) proceedings before the Supreme Court,(d) proceedings before an Industrial Magistrate,(e) (Repealed)(f) any other proceedings prescribed by the regulations.(3) Part 5 (except Division 2A) applies to the following proceedings:(a) proceedings before the Supreme Court,(b) proceedings before the Industrial Relations Commission in Court Session,(c) proceedings before the Land and Environment Court,(c1) proceedings before the District Court,(d) proceedings before the Court of Coal Mines Regulation,(e) any other proceedings prescribed by the regulations.(4) Division 2A of Part 5 applies to the following proceedings:(a) proceedings before the Supreme Court,(b) proceedings before the Land and Environment Court.
In this Chapter:court means a court to which the relevant provision of this Chapter applies and includes (where applicable) an Industrial Magistrate.
Judge includes a judge of the Supreme Court, the Land and Environment Court and the Court of Coal Mines Regulation and 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.
Magistrate includes an Industrial Magistrate and any other person of a class prescribed by the regulations for the purposes of this definition.
registrar means:
(a) in the case of proceedings before the Local Court, the relevant registrar of the Local Court,(b) (Repealed)(c) in the case of proceedings before an Industrial Magistrate, the relevant registrar of the Local Court,(d) (Repealed)(e) in the case of proceedings before any other court to which Parts 2–4 apply, the person prescribed by the regulations for the purposes of this definition.
Part 2 Trial procedures in lower courts
Division 1 Commencement of proceedings
172 Commencement of proceedings by court attendance notice
(1) Proceedings for an offence are to be commenced in a court by the issue and filing of a court attendance notice in accordance with this Division.(2) A court attendance notice may be issued in respect of a person if the person has committed or is suspected of having committed an offence.(3) A court attendance notice may be issued in respect of any offence for which proceedings may be taken in this State, including an offence committed elsewhere than in this State.
173 Commencement of proceedings by police officer or public officer
If a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the officer may commence the proceedings by issuing a court attendance notice and filing the notice in accordance with this Division.
174 Commencement of private prosecutions
(1) If a person other than a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division.(2) A registrar must not sign a court attendance notice if:(a) the registrar is of the opinion that the notice does not disclose grounds for the proceedings, or(b) the registrar is of the opinion that the notice is not in the form required by or under this Act, or(c) the registrar is of the opinion that a ground for refusal set out in the rules applies to the notice.(3) If a registrar refuses to sign a court attendance notice proposed to be issued by any such person, the question of whether the court attendance notice is to be signed and issued is to be determined by the court on application by the person.
175 Form of court attendance notice
(1) A court attendance notice must be in writing and be in the form prescribed by the rules.(2) The rules may prescribe one or more forms of court attendance notice.(3) A court attendance notice must do the following:(a) describe the offence,(b) briefly state the particulars of the alleged offence,(c) contain the name of the prosecutor,(d) require the accused person to appear before the court at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail,(e) state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person.(4) The rules may prescribe additional matters to be included in court attendance notices.(5) A court attendance notice may describe an offence, act or other thing in a way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment.
177 Service of court attendance notices
(1) A court attendance notice issued by a police officer must be served by a police officer or prosecutor in accordance with the rules.(2) A court attendance notice issued by a public officer must be served by a police officer, public officer or other person of a class prescribed by the rules, in accordance with the rules.(3) A copy of a court attendance notice issued by a person other than a police officer or a public officer must be served by a person of a class prescribed by the rules in accordance with the rules.(4) A copy of a court attendance notice must be filed in the registry of a court in accordance with the rules.(5) (Repealed)
(1) All proceedings are taken to have commenced on the date on which a court attendance notice is filed in the registry of a relevant court in accordance with this Division.(2) (Repealed)(3) Nothing in this section affects any other Act or law under which proceedings are taken to have been commenced on another date.
179 Time limit for commencement of summary proceedings
(1) Proceedings for a summary offence must be commenced not later than 6 months from when the offence was alleged to have been committed.(2) Subsection (1) does not apply:(a) to an offence for which an Act or law specifies another period within which proceedings must be commenced, or(b) to an indictable offence that is being dealt with summarily, or(c) to an offence involving the death of a person that is or has been the subject of a coronial inquest.(3) Proceedings for a summary offence that relate to the death of a person that is or has been the subject of a coronial inquest must be commenced:(a) not later than 6 months after the conclusion of the inquest, or(b) not later than 2 years from when the offence is alleged to have been committed,whichever occurs first.
180 Relationship to other law or practice
(1) Nothing in this Part affects any law or practice relating to indictments presented or filed in the Supreme Court or the District Court by the Attorney General or the Director of Public Prosecutions.(2) If an Act or a statutory rule provides for proceedings for an offence which may be taken in a court to be commenced otherwise than by issuing a court attendance notice, the proceedings may be commenced in accordance with this Act.(3) Nothing in this Part affects the operation of the provisions of the Crimes (Domestic and Personal Violence) Act 2007 relating to the commencement of proceedings under that Act.
181 Attendance of accused person at proceedings
(1) A person who issues a court attendance notice may, at any time after the notice is issued and before the date on which the accused person is required to first attend at the court for the hearing of proceedings, apply for a warrant to arrest the accused person.(2) An authorised officer may, when a court attendance notice is issued by the registrar, or filed in the court, or at any time after then and before the matter is first before a court, issue a warrant to arrest the accused person if the authorised officer is satisfied there are substantial reasons to do so and that it is in the interests of justice to do so.(3) The rules may make provision for or with respect to matters that may be taken into account by an authorised officer in determining whether to issue a warrant under this section.(3A) If an accused person is not present at the day, time and place set down for the hearing of proceedings (including any day to which proceedings are adjourned), or absconds from the proceedings, the Magistrate may issue a warrant to arrest the accused person if the Magistrate is satisfied there are substantial reasons to do so and that it is in the interests of justice to do so.(4) A Magistrate or an authorised officer before whom an accused person is brought on arrest on a warrant issued under this section may, if bail is not dispensed with or granted, order the issue of a warrant:(a) committing the accused person to a correctional centre or other place of security, and(b) ordering the accused person to be brought before a court at the date, time and place specified in the order.(5) The Magistrate or authorised officer must give notice of the date, time and place set to the prosecutor. Part 4 of this Chapter sets out procedures for arrest warrants and warrants of commitment generally.
Division 2 Pre-trial procedures
(1) An accused person served with a court attendance notice may lodge with the registrar a notice in writing that the accused person will plead guilty or not guilty to the offence or offences the subject of the court attendance notice concerned.(2) The notice is to be in the form prescribed by the rules and, in the case of a guilty plea, may be accompanied by additional written material containing matters in mitigation of the offence.(3) An accused person who lodges a notice under this section with the registrar not later than 7 days before the date on which the person is required to first attend before the Local Court:(a) is not required to attend the Court on that date, and(b) is taken to have attended the Court on that date.(4) This section does not apply to an accused person who has been granted or refused bail or in relation to whom bail has been dispensed with.
183 Brief of evidence to be served on accused person where not guilty plea
(1) If an accused person pleads not guilty to an offence, the prosecutor must, subject to section 187, serve or cause to be served on the accused person a copy of the brief of evidence relating to the offence.(2) The brief of evidence is, unless the regulations otherwise provide, to consist of documents regarding the evidence that the prosecutor intends to adduce in order to prove the commission of the offence and is to include:(a) written statements taken from the persons the prosecutor intends to call to give evidence in proceedings for the offence, and(b) copies of any document or any other thing, identified in such a written statement as a proposed exhibit.(3) The copy of the brief of evidence is to be served at least 14 days before the hearing of the evidence for the prosecution.(4) The Magistrate may set a later date for service with the consent of the accused person or if of the opinion that the circumstances of the case require it.
(1) Despite section 183, the prosecutor is not required to include a copy of a proposed exhibit identified in the brief of evidence if it is impossible or impractical to copy the exhibit.(2) However, in that case the prosecutor is:(a) to serve on the accused person a notice specifying a reasonable time and place at which the proposed exhibit may be inspected, and(b) to allow the accused person a reasonable opportunity to inspect each proposed exhibit referred to in the notice.
185 Recording of interviews with vulnerable persons
(1) If the prosecutor intends to call a vulnerable person to give evidence in proceedings, the brief of evidence may include a transcript of a recording made by an investigating official of an interview with the vulnerable person, during which the vulnerable person was questioned by the investigating official in connection with the investigation of the commission or possible commission of the offence (as referred to in section 306R).(2) A copy of the transcript of the recording must be certified by an investigating official as an accurate transcript of the recording and served on the accused person in accordance with section 183.(3) A brief of evidence that includes a transcript of a recording of an interview with a vulnerable person is not required also to include a written statement from the vulnerable person concerned.(4) The transcript of the recording is taken, for the purposes of this Division, to be a written statement taken from the vulnerable person. Accordingly, any document or other thing identified in the transcript as a proposed exhibit forms part of the brief of evidence.(5) Nothing in this Division requires the prosecutor to serve on the accused person a copy of the actual recording made by an investigating official of an interview with the vulnerable person.(6) This section does not affect section 306V (2).(7) In this section:investigating official has the same meaning as it has in Part 6 of Chapter 6.
vulnerable person has the same meaning as it has in Part 6 of Chapter 6.
Note. Part 6 of Chapter 6 allows vulnerable persons (children and cognitively impaired persons) to give evidence of a previous representation in the form of a recording made by an investigating official of an interview with the vulnerable person. Section 306V (2) (which is contained in that Part) provides that such evidence is not to be admitted unless the accused person and his or her Australian legal practitioner have been given a reasonable opportunity to listen to or view the recording.
186 Form of copy of brief of evidence
(1) The copy of the brief of evidence is to comply with any requirement applicable to it prescribed by the rules.(2) A written statement contained in the brief of evidence is to comply with this Act and any requirement applicable to it prescribed by the rules.
187 When brief of evidence need not be served
(1) The court may order that all or part of the copy of the brief of evidence need not be served if it is satisfied:(a) that there are compelling reasons for not requiring service, or(b) that it could not reasonably be served on the accused person.(2) The court may make an order under this section on its own initiative or on the application of any party.(3) An order may be made subject to any conditions that the court thinks fit.(4) Without limiting any other power to adjourn proceedings, the court may grant one or more adjournments, if it appears to it to be just and reasonable to do so, if the copy of the brief of evidence is not served in accordance with this Division. For that purpose, the court may extend the time for service of the brief of evidence.(5) A prosecutor is not required to serve a brief of evidence in proceedings for an offence of a kind, or proceedings of a kind, prescribed by the regulations.
188 Evidence not to be admitted
(1) The court must refuse to admit evidence sought to be adduced by the prosecutor in respect of an offence if, in relation to that evidence, this Division or any rules made under this Division have not been complied with by the prosecutor.(2) The court may, and on the application of or with the consent of the accused person must, dispense with the requirements of subsection (1) on such terms and conditions as appear just and reasonable.
(1) A person who made a written statement tendered in evidence in proceedings is guilty of an offence if the statement contains any matter that, at the time the statement was made, the person knew to be false, or did not believe to be true, in any material respect.Maximum penalty:
(a) If the offence is dealt with summarily, 20 penalty units or imprisonment for 12 months, or both.(b) If the offence is dealt with on indictment, 50 penalty units or imprisonment for 5 years, or both.(2) Chapter 5 (which relates to the summary disposal of certain indictable offences unless an election is made to proceed on indictment) applies to and in respect of an offence under this section.
(1) On the first return date for a court attendance notice in any summary proceedings, or at such later time as the court determines, the court must set the date, time and place for hearing and determining the matter.(2) The court must notify the accused person of the date, time and place, if the accused person is not present.(3) However, if the accused person is not present at the first return date and has not lodged a written plea of not guilty in accordance with section 182, the court may proceed to hear the matter on that day at its discretion.Note. The powers of a court to adjourn proceedings generally are set out in section 40.
191 Proceedings to be open to public
(1) Summary proceedings before a court are to be heard in open court.(2) This section is subject to the provisions of any other Act or law.
192 Procedures where both parties present
(1) If both the accused person and the prosecutor are present at the day, time and place set for the hearing and determination of proceedings for an offence (including a day to which the hearing has been adjourned) the court must proceed to hear and determine the matter.(2) The court must state the substance of the offence to the accused person and ask the accused person if the accused person pleads guilty or not guilty.(3) Instead of hearing and determining the matter, the court may, if it thinks that the matter should not proceed on the specified day, adjourn the hearing to another day for mention or hearing.
193 Procedure if offence admitted
(1) If the accused person pleads guilty, and does not show sufficient cause why he or she should not be convicted or not have an order made against him or her, the court must convict the accused person or make the order accordingly.(2) This section does not apply if the court does not accept the accused person’s guilty plea.
194 Procedure if offence not admitted
(1) If the accused person pleads not guilty or fails or refuses to make a plea or the court does not accept the accused person’s guilty plea, the court must proceed to hear and determine the matter.(2) The court must hear the prosecutor, any witnesses and other evidence of the prosecutor and must hear the accused person and any witnesses and other evidence of the accused person.
(1) A prosecutor may give evidence and may examine and cross-examine the witnesses giving evidence for the prosecution or the accused person, respectively.(2) An accused person may make full answer and defence. An accused person may give evidence and may examine and cross-examine the witnesses giving evidence for the accused person or the prosecution, respectively.(3) If the accused person gives any evidence or examines any witness as to any matter other than as to the witness’s general character, the prosecutor may call and examine witnesses in reply.
196 Procedure if accused person not present
(1) If the accused person is not present at the day, time and place set for the hearing and determination of the matter (including a day to which the hearing has been adjourned), the court may proceed to hear and determine the matter in the absence of the accused person in accordance with this Division.(2) If:(a) a penalty notice enforcement order is annulled under Division 5 of Part 3 of the Fines Act 1996 and the order (together with any annexure) is taken to be a court attendance notice in relation to the offence, and(b) the accused person has been given notice of the hearing of the matter of the court attendance notice, and(c) the accused person does not appear on the day and at the time and place specified by the court attendance notice,the court may proceed to hear and determine the matter in the absence of the accused person in accordance with this Division.(3) The court may not proceed to hear and determine the matter unless it is satisfied that the accused person had reasonable notice of the first return date or the date, time and place of the hearing.(4) If an offence is an indictable offence that may be dealt with summarily only if the accused person consents, the absence of the accused person is taken to be consent to the offence being dealt with summarily and the offence may be dealt with in accordance with this Division.
197 Adjournment when accused person not present
(1) Instead of hearing and determining a matter in the absence of the accused person, the court may, if it thinks that the matter should not proceed on the specified day or without the accused person, adjourn the hearing to another day for mention or for hearing.(2) If a warrant is issued for the arrest of the accused person, the Magistrate or authorised officer before whom the accused person is brought after arrest may specify the date, time and place to which the proceedings are adjourned.Note. The court may at any time issue a warrant for the arrest of an absent accused person (see Division 2 of Part 4 which sets out procedures for warrants).
198 Absent accused person taken to have pleaded not guilty
An accused person in proceedings who is absent from the proceedings and who has not lodged a written plea of guilty in accordance with section 182 is taken to have pleaded not guilty.
199 Material to be considered when matter determined in absence of accused person
(1) The court may determine proceedings heard in the absence of the accused person on the basis of the court attendance notice without hearing the prosecutor’s witnesses or any other additional evidence of the prosecutor, if it is of the opinion that the matters set out in the court attendance notice are sufficient to establish the offence.(2) Before determining the matter, the court must consider any written material given to the court by the prosecutor, or lodged by the accused person under section 182.
200 When court may require prosecution to provide additional evidence
(1) The court may, in proceedings heard in the absence of the accused person, require the prosecution to provide additional evidence if it is of the opinion that the matters set out in the court attendance notice are not sufficient to establish the offence.(2) The additional evidence is not admissible unless:(a) it is in the form of written statements that comply with Division 3 of Part 2 of Chapter 3, and(b) a copy of any such statement has been given to the accused person a reasonable time before consideration of the additional evidence by the court.(3) However, the court may require evidence to be given orally if it is not practicable to comply with subsection (2) or if the court thinks it necessary in the particular case.(4) The court must reject a written statement, or any part of a written statement, tendered in summary proceedings if the statement or part is inadmissible because of this section.
201 Procedure if prosecutor or both parties not present
(1) If the prosecutor is not present, or both the prosecutor and the accused person are not present, at the day, time and place set for the hearing and determination of the matter (including a day to which the hearing has been adjourned) the court must dismiss the information.(2) Despite subsection (1), the court may, if it thinks fit, instead of dismissing the information, adjourn the hearing to a specified day, time and place for mention or hearing.
(1) The court must determine summary proceedings after hearing the accused person, prosecutor, witnesses and evidence in accordance with this Act.(2) The court may determine the matter by convicting the accused person or making an order as to the accused person, or by dismissing the matter.(3) In the case of a matter heard in the absence of the accused person, the court may adjourn the proceedings to enable the accused person to appear or be brought before the court for sentencing.Note. Section 25 of the Crimes (Sentencing Procedure) Act 1999 provides for the issue of warrants of arrest for absent defendants so that they may be brought before the Court for sentencing. Section 62 of that Act also provides for the issue of warrants of commitment after sentencing.
203 Additional powers to adjourn summary proceedings
A court may adjourn summary proceedings before or at any stage of proceedings to enable the matter to be the subject of a mediation session under the Community Justice Centres Act 1983.
204 Record of conviction or order to be made
(1) A court must make a record of any conviction or order made against the accused person in summary proceedings when the accused person is convicted or the order is made.(2) The court must give the accused person a copy of the record on request by the accused person.
205 Order dismissing matter to be made
(1) A court may make an order of dismissal and give the accused person a certificate certifying that a matter has been dismissed if it decides to dismiss the matter.(2) A court must make an order of dismissal and give the accused person a certificate certifying that a matter has been dismissed if requested to do so by an accused person against whom a matter has been dismissed or by the prosecutor.(3) This section does not apply to a matter that is taken to be dismissed because of section 208.
206 Effect of certificate that matter has been dismissed
A certificate certifying that a matter has been dismissed, if produced and without any further proofs being required, prevents any later proceedings in any court for the same matter against the same person.
207 Power to set aside conviction or order before sentence
(1) An accused person may, at any time after conviction or an order has been made against the accused person and before the summary proceedings are finally disposed of, apply to the court to change the accused person’s plea from guilty to not guilty and to have the conviction or order set aside.(2) The court may set aside the conviction or order made against the accused person and proceed to determine the matter on the basis of the plea of not guilty.
208 Dismissal of matter if matter withdrawn
(1) If a matter is withdrawn by the prosecutor, the matter is taken to be dismissed and the accused person is taken to be discharged in relation to the offences concerned.(2) The dismissal of a matter because of its withdrawal by the prosecutor does not prevent any later proceedings in any court for the same matter against the same person.
209 Application of section 10 of the Crimes (Sentencing Procedure) Act 1999
The provisions of section 10 of the Crimes (Sentencing Procedure) Act 1999 apply to any proceedings heard in the absence of the accused person under this Part as if the accused person had been charged before the court with the offence to which the proceedings relate.
210 Penalties applying to traffic offences committed by children
(1) The Local Court may deal with a child found guilty of a traffic offence in accordance with Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987.(2) In so dealing with a child, the Local Court has and may exercise the functions of the Children’s Court under that Division as if the Local Court were the Children’s Court and the offence were an offence to which the Division applies.(3) The Local Court must not impose a sentence of imprisonment on a child found guilty of a traffic offence.(4) In this section:child means a person who was under 18 years when the traffic offence was committed and under 21 years when summary proceedings for the offence were commenced,
traffic offence means an offence arising under a provision of:
(a) the road transport legislation within the meaning of the Road Transport (General) Act 2005, or(b) the Roads Act 1993, or(c) the Motor Vehicles (Third Party Insurance) Act 1942, or(d) the Recreation Vehicles Act 1983, or(e) the Motor Accidents Compensation Act 1999,in respect of the use, standing or parking of a motor vehicle within the meaning of that provision.Note. Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987 sets out the penalties which the Children’s Court may impose on a child who has been found guilty of a summary offence.
In this Part:professional costs means costs (other than court costs) relating to professional expenses and disbursements (including witnesses’ expenses) in respect of proceedings before a court.
211A Imposition of court costs levy
(1) An accused person who is convicted of an offence in summary proceedings before a court is, by virtue of the conviction, liable to pay a court costs levy that is of the amount prescribed by the regulations.(2) However, a court costs levy is not payable in relation to any of the following:(a) a conviction resulting in the imposition of a sentence of imprisonment (unless the execution of the sentence is suspended by the court),(b) an order under section 10 (1) (a) of the Crimes (Sentencing Procedure) Act 1999 in relation to an offence that is not punishable by imprisonment,(c) a finding of guilt in relation to a traffic offence (within the meaning of section 210 of this Act) by the Local Court when dealing with the accused person under Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987,(d) a conviction in proceedings before the Drug Court,(e) a conviction that the regulations exempt from liability to pay the levy.(3) A convicted person who is under the age of 18 years is not liable to pay the court costs levy if the court directs that the person is exempt from liability to pay the levy in respect of the conviction. Such a direction may be made when the court convicts the person, or at any time afterwards.(4) The court costs levy is in addition to, and does not form part of, any pecuniary penalty imposed in respect of the offence.(5) The court costs levy is to be paid to the registrar of the court. The registrar is to pay the levy to the prosecutor if court costs have been paid by the prosecutor in respect of the proceedings.(6) The commencement of any proceedings by way of appeal against, or review of, a conviction in respect of which the court costs levy has been imposed on a person stays the liability of the person to pay the levy. In such a case:(a) the setting aside of any such conviction annuls that liability, and(b) the dismissal of any such proceedings removes the stay of liability.(7) To avoid doubt, this section extends to:(a) proceedings conducted in the absence of the accused person, and(b) proceedings in which a person who was under the age of 18 years when an offence was allegedly committed pleads guilty to, or is found guilty of, an offence in proceedings before a court, but not if the person is dealt with under Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987.(8) In this section, a reference to a person being convicted includes a reference to an order being made in relation to the person under section 10 of the Crimes (Sentencing Procedure) Act 1999.Note 1. This section does not apply in respect of criminal proceedings before the Children’s Court (see section 27 (2A) of the Children (Criminal Proceedings) Act 1987). Section 42A of that Act provides for the Children’s Court to make orders regarding court costs at its discretion.Note 2. Section 4 of the Fines Act 1996 provides that a court costs levy payable under this section is, for the purposes of that Act, taken to be a fine imposed by the court that convicted the person or found the person guilty.
(1) A court may award costs in criminal proceedings only in accordance with this Act.(2) This Act does not affect the payment of costs under the Costs in Criminal Cases Act 1967.Note. The Costs in Criminal Cases Act 1967 contains procedures by which an accused person may obtain payment of costs from Government funds after acquittal or discharge or the quashing of a conviction.
213 When professional costs may be awarded to accused persons
(1) A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.(2) The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable.(3) Without limiting the operation of subsection (1), a court may order that the prosecutor in summary proceedings pay professional costs if the matter is dismissed because:(a) the prosecutor fails to appear or both the prosecutor and the accused person fail to appear, or(b) the matter is withdrawn or the proceedings are for any reason invalid.(4) (Repealed)(5) The order must specify the amount of professional costs payable.
214 Limit on award of professional costs to accused person against prosecutor acting in public capacity
(1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following:(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought,(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs.(2) This section does not apply to the awarding of costs against a prosecutor acting in a private capacity.(3) An officer of an approved charitable organisation under the Prevention of Cruelty to Animals Act 1979 is taken not to be acting in a private capacity if the officer acts as the prosecutor in any proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003.
215 When professional costs may be awarded to prosecutor
(1) A court may at the end of summary proceedings order that the accused person pay the following costs to the registrar of the court, for payment to the prosecutor, if the accused person is convicted or an order is made against the accused person:(a) such professional costs as the court considers just and reasonable,(b) (Repealed)(1A) The court may not order the accused person to pay professional costs referred to in subsection (1) (a) if the conviction or order concerned relates to an offence:(a) for which a penalty notice, within the meaning of section 20 of the Fines Act 1996, has been issued, and(b) in respect of which the person has elected to have the matter dealt with by a court, and(c) in respect of which the person has lodged a written plea of guilty, in accordance with section 182, not later than 7 days before the date on which the person is required to first attend before the court.(1B) Subsection (1A) does not apply in relation to proceedings for an offence against the Work Health and Safety Act 2011 or the regulations under that Act.(2) (Repealed)(3) The order must specify the amount of costs payable.(4) For the purposes of this section, an accused person is taken to have been convicted if an order is made under Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987 or under section 10 of the Crimes (Sentencing Procedure) Act 1999. The order for costs may be in the order under the relevant section.(5) This section applies to all summary proceedings, including orders made in proceedings conducted in the absence of the accused person.
(1) A court may in any summary proceedings, at its discretion or on the application of a party, order that one party pay costs if the matter is adjourned.(2) An order may be made only if the court is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delays of the party against whom the order is made.(3) The order must specify the amount of costs payable or may provide for the determination of the amount at the end of the proceedings.(4) An order may be made whatever the result of the proceedings.
217 Enforcement of costs orders
An order made by a court under this Division for the payment of costs is taken to be a fine within the meaning of the Fines Act 1996.
218 Public officers and police officers not personally liable for costs
(1) A public officer or a police officer is entitled to be indemnified by the State for any costs awarded against the officer personally as the prosecutor in any criminal proceedings in a court in which the officer is acting in his or her capacity as a public officer or a police officer.(2) In this section:public officer does not include a councillor or an employee of a council or any other person prescribed by the regulations for the purposes of this section.
(1) The Rule Committee may make rules for or with respect to the following matters:(a) service of court attendance notices, briefs of evidence and other documents,(b) endorsement of service of court attendance notices and other documents,(c) procedures for adjourning, relisting and notifying accused persons about alternative offences,(d) additional requirements for the form of warrants,(e) the circumstances in which a person may obtain copies of documents relating to criminal proceedings,(f) assessment of costs on adjournment,(g) the form of submissions to a court about disputed costs,(h) forms to be used under this Act.(2) A court may in proceedings for a summary offence, if of the opinion that it is in the interests of justice to do so, dispense with or vary a requirement of the rules.(3) For the purposes of subsection (2), the Local Court may make directions as to the conduct of proceedings.(4) The power conferred by subsection (2) does not extend to any rule declared by the rules to be mandatory.
Part 3 Attendance of witnesses and production of evidence in lower courts
In addition to any other proceedings to which this Part applies, this Part applies to any proceedings prescribed by the regulations for the purposes of this section.
In this Part:party means a prosecutor or an accused person in, or any other party to, proceedings to which this Part applies.
person named in a subpoena means the person to whom the subpoena is addressed.
subpoena includes any of the following:
(a) a subpoena to give evidence,(b) a subpoena for production,(c) a subpoena both to give evidence and for production.subpoena both to give evidence and for production means a written order requiring the person named to attend as directed by the order as a witness to give evidence and to produce a document or thing.
subpoena for production means a written order requiring the person named to attend as directed by the order and produce a document or thing.
subpoena to give evidence means a written order requiring the person named to attend as directed by the order as a witness to give evidence.
(1) A registrar, if requested to do so by a party to proceedings, is, subject to and in accordance with the rules, to issue to the person named any of the following subpoenas:(a) a subpoena to give evidence,(b) a subpoena for production,(c) a subpoena both to give evidence and for production.(2) If the prosecutor in proceedings is a public officer or a police officer, the officer may, subject to and in accordance with the rules, issue any such subpoena. The subpoena is to be filed and served in accordance with the rules.(3) A subpoena to give evidence and a subpoena for production may be issued to the same person in the same proceedings.(4) A party may require a subpoena for production to be returnable:(a) on any day on which the proceedings are listed before a court, or any day not more than 21 days before any such day, or(b) with the leave of the court or a registrar, on any other day.
223 Time for service of subpoenas
(1) A subpoena must be served within a reasonable time and at least 5 days before the last day on which it must be complied with.(2) A registrar may, on application by the party concerned, permit a subpoena to be served later than the time permitted by subsection (1). The later time must be endorsed on the subpoena by the registrar.(3) A subpoena may be served by delivering a copy of the subpoena to the person named or in any other manner prescribed by the rules.
Unless a court otherwise orders, a subpoena issued at the request of a party other than a prosecutor who is a public officer or a police officer is not to require the person named to attend or produce any document or thing on any day on which his or her attendance is required unless an amount prescribed by the rules for the expenses of complying with the subpoena in relation to that day is paid or tendered to the person at the time of service of the subpoena or not later than a reasonable time before that day.
225 Limits on obligations under subpoenas
The person named is not required to produce any document or thing if:(a) it is not specified or sufficiently described in the subpoena, or(b) the person named would not be required to produce the document or thing on a subpoena for production in the Supreme Court.
(1) If the person named in a subpoena for production is not a party to the proceedings, the subpoena is, unless a court otherwise orders, to permit the person to produce the document or thing to the court specified in the subpoena not later than the day before the first day on which the person’s attendance is required, instead of attending and producing the document or thing as required by the subpoena.(2) The rules may make provision for or with respect to the production of documents or things produced to a court under subsection (1), and the return of the document or thing, and any related matters.(3) Nothing in this Part affects the operation of Division 1 of Part 4.6 of the Evidence Act 1995 (Requests to produce documents or call witnesses).
(1) A court may, on application by the person named in a subpoena, set aside the subpoena wholly or in part.(2) Notice of an application under this section is to be filed and served as prescribed by the rules on the party on whose request, or by whom, the subpoena was issued.
228 Inspection of subpoenaed documents and things
(1) A party may, if a court so orders:(a) inspect documents or things produced in compliance with a subpoena, and(b) take copies of any documents so inspected.(2) Any such order may be made on such terms and conditions as the court thinks fit.(3) A registrar may exercise the function of a court to make an order under this section unless:(a) the court otherwise orders, or(b) a party, the person named in the subpoena or a person claiming privilege in respect of the document has notified the court in the manner prescribed by the rules that the party or person objects to the making of an order under this section.
229 Action that may be taken if person does not comply with subpoena
(1) A party who requested, or issued, a subpoena may apply to the court for the issue of a warrant under Part 4 for the arrest of the person named if the person named has not complied with the subpoena.(2) The court may issue the warrant if satisfied that:(a) the person named has not complied with the subpoena, and(b) the requirements of this Part for subpoenas were complied with and no just or reasonable excuse has been offered for the failure to comply.(3) A Magistrate or an authorised officer before whom a person is brought on arrest on a warrant issued under this section may, if bail is not dispensed with or granted, issue a warrant:(a) committing the person to a correctional centre or other place of security, and(b) ordering the person to be brought before a court at the date, time and place specified in the order.(4) The Magistrate or authorised officer must give notice of the date, time and place set to the party who issued or requested the subpoena.Note. Division 2 of Part 4 sets out procedures for arrest warrants generally.
230 Application of Bail Act 1978
The Bail Act 1978 applies to a person who is brought before a court after having been arrested under a warrant referred to in section 229 in the same way as it applies to an accused person, and for that purpose, bail may be granted to the person with respect to the period between:(a) the person’s being brought before a court under a warrant for the purpose of being examined as a witness or producing a document or thing, and(b) the person’s being examined as a witness or producing the document or thing.
231 Action that may be taken if witness refuses to give evidence
(1) This section applies to a person who:(a) appears before a court on a subpoena, or(b) appears before a court on bail after being arrested under a warrant after failing to comply with a subpoena, or(c) is brought before a court under a warrant of commitment after being so arrested,to give evidence, or produce any document or thing, or both.(2) The court may order that a warrant be issued for the committal of a person to whom this section applies to a correctional centre for a period not exceeding 7 days if the person refuses, without offering any just cause or reasonable excuse:(a) to be examined on oath, or(b) to take an oath, or(c) to answer, after having taken an oath, any questions that are put to the person concerning the subject-matter of the proceedings, or(d) to produce the document or thing.Note. Division 3 of Part 4 sets out procedures for warrants of commitment generally.(3) However, the person is to be released before the expiration of those 7 days if the person:(a) consents to be examined on oath and to answer questions concerning the subject-matter of the proceedings, or(b) produces the document or thing.(4) This Part applies in relation to a subpoena to the exclusion of section 194 (Witnesses failing to attend proceedings) of the Evidence Act 1995.(5) In this section, a reference to a person who appears before a court on bail after being arrested under a warrant after failing to comply with a subpoena includes a reference to a person in respect of whom the requirement for bail has been dispensed with after being so apprehended.
232 Rules relating to subpoenas
The Rule Committee may make rules for or with respect to the following matters:(a) the form of subpoenas,(b) the production of documents or things to the registrar and the inspection of the documents or things,(c) the return of subpoenas to parties,(d) conduct money,(e) hearing of objections to subpoenas.
In addition to warrants issued in, or in connection with, proceedings to which this Part applies because of section 170, this Part applies to warrants that may be issued under Part 3.
In this Part:named person means the person named in a warrant.
235 When arrest warrants may be issued for accused persons
A warrant to arrest a person may be issued on any day of the week.
(1) A warrant to arrest a person must be in the form prescribed by the rules.(2) Without limiting subsection (1), the warrant must be directed to a person permitted by this Division to execute the warrant and must do the following things:(a) name or describe the person to be arrested,(b) briefly state the subject-matter of the court attendance notice or reason for the arrest,(c) order that the person be arrested and brought before the Judge, Magistrate or authorised officer to be dealt with according to law or to give evidence or produce documents or things, as appropriate.(3) A warrant to arrest a person must be signed by the person issuing it and sealed with the seal of the court to which the person issuing it is attached.(4) However, an authorised officer may sign a warrant issued under this Act if a Judge or Magistrate has directed in writing that the warrant be issued.
237 Duration of arrest warrants
(1) A warrant to arrest an accused person need not be returnable at any particular time. If it is not, the warrant continues in force until it expires.(1A) A warrant to arrest an accused person in respect of an offence specified in the Table below expires at the end of the period specified in the Table in relation to the offence.
Offence
Period
Indictable offences (punishable by imprisonment for life or 25 years or more)
50 years
Indictable offences (punishable by imprisonment for less than 25 years and not less than 5 years)
30 years
Indictable offences not punishable by imprisonment for 5 years or more (where the accused person is not a child)
15 years
Summary offences (where the accused person is not a child)
10 years
Indictable offences not punishable by imprisonment for 5 years or more (where the accused person is a child)
10 years
Summary offences (where the accused person is a child)
5 years
(1B) A warrant issued for the arrest of a convicted person to bring that person before a court for sentencing expires at the end of 30 years after it is issued.(1C) Nothing in subsection (1A) or (1B) prevents a new warrant for arrest from being issued in respect of the same offence or offences as a previous arrest warrant.(2) A warrant to arrest a witness must be returnable at a stated date, time and place.(3) The warrant to arrest a witness may be returned and cancelled, and a further warrant may be obtained, if the witness is not arrested before the warrant must be returned.
238 Persons who may execute arrest warrant
(1) A warrant to arrest a person must be directed to:(a) a named police officer, or(b) a person authorised by law to execute a warrant to arrest, or(c) the senior police officer of the area where the court is located, or(d) the senior police officer and all other police officers, or(e) generally all police officers.(2) A warrant to arrest a person may be carried out by arresting the accused or witness at any place in New South Wales.
A person who is arrested under a warrant must be brought before a Judge, a Magistrate or an authorised officer as soon as practicable.
(1) Any warrant to arrest a person may be revoked by a Judge, Magistrate or authorised officer if:(a) the party who requested the warrant applies to the Judge, Magistrate or authorised officer to revoke the warrant, or(b) the Judge, Magistrate or authorised officer is of the opinion that it is appropriate to do so.(2) A Judge, Magistrate or authorised officer may revoke a warrant even though it was issued by another Judge, Magistrate or authorised officer. A Magistrate may not revoke a warrant issued by a Judge. An authorised officer may not revoke a warrant issued by a Judge or Magistrate.
Division 3 Warrants of commitment
241 Power to commit person to correctional centre subject to Bail Act 1978
A power to issue a warrant to commit a person to a correctional centre or other place under this Act is subject to the provisions of the Bail Act 1978.Note. The Bail Act 1978 sets out the circumstances when bail must or may be granted or may be dispensed with by a Magistrate.
242 Form of warrants of commitment
(1) A warrant to commit a person must be in the form prescribed by the rules.(2) Without limiting subsection (1), the warrant must be directed to a person permitted by the rules to execute the warrant and must do the following things:(a) name or describe the person to be committed,(b) direct and authorise the person to take and safely convey the named person to the correctional centre or other place,(c) direct the person to deliver the named person to the officer in charge of the place,(d) direct and authorise the officer in charge of the place to receive the named person in custody and to keep the named person in custody for the period specified, or in the circumstances specified, or until the named person is otherwise lawfully released from custody.(3) A warrant to commit a witness to a correctional centre, lock-up or a place of security must not require the witness to be kept in custody for more than 7 days.(4) An authorised officer may sign a warrant to commit a person if a Judge or Magistrate has directed in writing that the warrant be issued.
243 Procedure for taking person to correctional centre or other place
(1) The person to whom a warrant issued under this Division to commit a person to a correctional centre or other place is directed must take the named person to the correctional centre or other place specified in the warrant and deliver the named person to the person in charge of the place.(2) The person executing the warrant must obtain a receipt for the delivery of the named person setting out the condition of the named person when delivered into the custody of the person in charge.
244 Defects in warrants of commitment
A warrant to commit an accused person to a correctional centre or other place may not be held void because of any defect in the warrant if the warrant states that:(a) the accused person has been convicted or ordered to do or abstain from doing any act or thing required to be done or not done, and(b) there is a good and valid conviction or order to sustain the warrant.
Part 5 Summary jurisdiction of Supreme Court and other higher courts
245 Summary jurisdiction of Supreme Court
(1) If, under any Act, proceedings may be taken before the Supreme Court in its summary jurisdiction, the Court has jurisdiction to hear and determine those proceedings in a summary manner.(2) The summary jurisdiction conferred on the Supreme Court by subsection (1), or under any other Act on any other court to which this Part applies, is to be exercised by a Judge sitting alone, and not otherwise.Note. Section 170 sets out the courts to which this Part applies.
Division 2 Appearance of accused persons
246 Orders for appearance or apprehension of accused persons
(1) A prosecutor may apply for an order:(a) that a person alleged in the application to have committed an offence that may be dealt with summarily by the court must appear at a time and place specified in the order to answer to the offence charged in the order, or(b) for the apprehension of any such person for the purpose of being brought before a Judge to answer to the offence charged in the order.(2) The application must be in accordance with the rules.(3) The order may be made in the absence of one or both parties.(4) An order for the apprehension of a person may be made whether or not an order has been made under subsection (1) (a).(5) An order for the apprehension of a person:(a) must be addressed to all police officers, and(b) may be addressed to any other person specified in the order, and(c) may be executed by any police officer or by any person to whom it is addressed at any place at which, had the offence specified in the order been committed at that place, that offence would be triable in the court.(6) A Judge before whom a person apprehended under an order made under this section is brought may, if bail is not dispensed with or granted, issue a warrant:(a) committing the person to a correctional centre or other place of security, and(b) ordering the person to be brought before a court at the date, time and place specified in the order.
247 Notices to be given to prosecutor
(1) The registrar must, as soon as practicable after the making of any order under section 246, cause notice of the order to be given to the prosecutor.(2) The registrar must, as soon as practicable after a notice is given or sent (as referred to in section 34 of the Bail Act 1978) to a person referred to in section 246, cause a copy of the notice to be given to the prosecutor.
Division 2A Case management provisions and other provisions to reduce delays in proceedings
This Division applies to proceedings before the Supreme Court, or the Land and Environment Court, in its summary jurisdiction.
(1) The purpose of this Division is to reduce delays in proceedings before the court in its summary jurisdiction by:(a) requiring certain preliminary disclosures to be made by the prosecution and the defence before the proceedings are heard, and(b) enabling the court to undertake case management where suitable in those proceedings, whether on its own motion or on application by a party to the proceedings.(2) Case management measures that are available to the court under this Division include the ordering of preliminary hearings, preliminary conferences and further preliminary disclosure. The court has a discretion in determining which (if any) of those measures are suitable in the proceedings concerned.
(1) In this Division:appearance order means an order for the appearance or apprehension of a person made under section 246.
court means the Supreme Court or the Land and Environment Court.
preliminary conference means a conference held under section 247H.
preliminary hearing means a hearing held under section 247G.
presiding Judge means the judge presiding at the hearing of the proceedings.
(2) In this Division, a reference to the defendant is to be read as including a reference to the Australian legal practitioner representing the defendant.
247D Directions for conduct of proceedings
At the first mention of proceedings, the court is to give directions with respect to the future conduct of the proceedings, including a direction as to the time by which notice of the prosecution case is to be given under section 247E and notice of the defence response is to be given under section 247F.
247E Notice of prosecution case to be given to defendant
(1) The prosecutor is to give to the defendant notice of the prosecution case that includes the following:(a) a copy of the application for any appearance order relating to the defendant,(b) a statement of facts,(c) a copy of the affidavit or statement (whichever is applicable) of each witness whose evidence the prosecutor proposes to adduce at the hearing of the proceedings,(d) a copy of each document, evidence of the contents of which the prosecutor proposes to adduce at the hearing of the proceedings,(e) if the prosecutor proposes to adduce evidence at the hearing of the proceedings in the form of a summary, a copy of the summary or, where the summary has not yet been prepared, an outline of the summary,(f) a copy of any exhibit that the prosecutor proposes to adduce at the hearing of the proceedings,(g) a copy of any chart or explanatory material that the prosecutor proposes to adduce at the hearing of the proceedings,(h) if any expert witness is proposed to be called at the hearing by the prosecutor, a copy of each report by the witness that is relevant to the case,(i) a copy of any information, document or other thing provided by authorised officers to the prosecutor, or otherwise in the possession of the prosecutor, that may reasonably be regarded as relevant to the prosecution case or the defence case, and that has not otherwise been disclosed to the defendant,(j) a list identifying:(i) any information, document or other thing of which the prosecutor is aware and that would reasonably be regarded as relevant to the case but that is not in the prosecutor’s possession and is not in the defendant’s possession, and(ii) the place at which the prosecutor believes the information, document or other thing is situated,(k) a copy of any information in the possession of the prosecutor that is relevant to the reliability or credibility of a prosecution witness.(2) The regulations may make provision for or with respect to the form and content of a statement of facts for the purposes of subsection (1) (b).(3) In this section, an authorised officer includes the following:(a) a police officer,(b) any person authorised by an Act in respect of which proceedings may be brought before the Supreme Court or the Land and Environment Court in its summary jurisdiction to investigate any contravention, or suspected contravention, of that Act.
247F Notice of defence response to be given to prosecutor
The defendant is to give the prosecutor notice of the defence response that includes the following:(a) the name of any Australian legal practitioner proposed to appear on behalf of the defendant at the hearing of the proceedings,(b) notice of any consent that the defendant proposes to give at the hearing of the proceedings under section 190 of the Evidence Act 1995 in relation to each of the following:(i) a statement of a witness that the prosecutor proposes to adduce at the hearing of the proceedings,(ii) a summary of evidence that the prosecutor proposes to adduce at the hearing of the proceedings.
(1) At the first mention of proceedings or at any other time, the court may order the prosecutor and the defendant to attend one or more preliminary hearings before the court.(2) During a preliminary hearing, the court may make such orders, determinations or findings, or give such directions or rulings, as it thinks appropriate for the efficient management and conduct of the proceedings.(3) Without limiting subsection (2), the court may take any or all of the following action under that subsection:(a) hear and determine an objection to any application for an appearance order prior to the commencement of a trial,(b) order the holding of a preliminary conference under section 247H,(c) order preliminary disclosure by the prosecutor or the defendant under section 247I,(d) give a direction under section 247M (3),(e) give a ruling or make a finding under section 192A of the Evidence Act 1995 as if the trial or sentencing hearing had commenced,(f) hear and determine a submission that the case should not proceed to trial prior to the commencement of the trial,(g) give a ruling on any question of law that might arise at the trial or sentencing hearing.(4) Despite any other provision of this Act, the court may make any order, determination or finding, or give any ruling, under this section on application by a party to the proceedings or on the court’s own initiative.(5) Any order, determination or finding made, or ruling given, by the court under this section is binding on the presiding Judge in the proceedings unless, in the opinion of the presiding Judge, it would not be in the interests of justice for the order, determination, finding or ruling to be binding.(6) Except with the leave of the court, a party to proceedings may not raise a relevant preliminary hearing matter if a preliminary hearing was held in the proceedings and:(a) the matter was not raised at the preliminary hearing, or(b) the matter was dealt with at the preliminary hearing.(7) A relevant preliminary hearing matter means:(a) an objection to an application for an appearance order, or(b) a question that was the subject of a ruling or finding under subsection (3) (e).(8) Except with the leave of the court, a party to proceedings may not raise a question of law that was the subject of a ruling under subsection (3) (g) if a preliminary hearing was held in the proceedings and the matter was dealt with at the preliminary hearing.(9) Leave is not to be granted under subsection (6) or (8) unless the court is of the opinion that it would be contrary to the interests of justice to refuse leave to raise the matter concerned.
(1) At the first mention of proceedings or at any other time, the court may order that a preliminary conference is to be held so long as the time appointed for any such conference occurs after the proceedings have commenced.(2) The court may order the holding of a preliminary conference under this section on application of any party or on the court’s own initiative.(3) The court may make such an order only if the defendant will be represented by an Australian legal practitioner at the preliminary conference.(4) The purpose of the preliminary conference is to determine whether the defendant and the prosecutor are able to reach agreement regarding the evidence to be admitted at the trial or sentencing hearing.(5) The following persons must be present during the preliminary conference:(a) the prosecutor,(b) the Australian legal practitioner representing the defendant.(6) A joint preliminary conference may be held in respect of 2 or more co-defendants, but only if:(a) in the case of a preliminary conference held before trial—the prosecution and each of the co-defendants concerned consent to the joint preliminary conference, or(b) in the case of a preliminary conference held before sentencing:(i) the defendant and each co-defendant have pleaded guilty to the offence or have been found guilty of the offence by the court, and(ii) the prosecution and each of the co-defendants concerned consent to the joint preliminary conference.(7) A requirement under this section that a person be present for the purposes of a preliminary conference is taken to be satisfied if the person is present or available by way of an audio visual link or audio link.(8) Within 7 days after the holding of a preliminary conference:(a) the prosecutor and the Australian legal practitioner who represented the defendant at the preliminary conference must complete a preliminary conference form, and(b) the prosecutor must file the preliminary conference form with the court.(9) The preliminary conference form:(a) is to indicate the areas of agreement and disagreement between the defendant and the prosecutor regarding the evidence to be admitted at the trial or sentencing hearing, and(b) is to be signed by the prosecutor and the Australian legal practitioner representing the defendant.(10) Except with the leave of the court, a party to proceedings may not object to the admission of any evidence at the hearing of the proceedings if the preliminary conference form indicates that the parties have agreed that the evidence is not in dispute.(11) Leave is not to be granted under subsection (10) unless the court is of the opinion that it would be contrary to the interests of justice to refuse leave.
247I Court may order preliminary disclosure in particular case
(1) After proceedings have been commenced, the court may make any or all of the following orders, but only if the court is of the opinion that it would be in the interests of justice to do so:(a) order that the prosecutor is to give to the defendant notice in accordance with section 247J,(b) order that the defendant is to give to the prosecutor notice of the defence response to the prosecution’s notice in accordance with section 247K,(c) order that the prosecution is to give to the defendant notice of the prosecution response to the defence response in accordance with section 247L.(2) The court may order preliminary disclosure under this section on the application of any party or on the court’s own initiative.(3) The court may order preliminary disclosure by the defendant only if the court is satisfied that the defendant will be represented by an Australian legal practitioner.(4) The court may limit preliminary disclosure to any specified aspect of the proceedings.(5) Preliminary disclosure required by an order under this section is to be made in accordance with a timetable determined by the court.
247J Prosecution notice—court-ordered preliminary disclosure
For the purposes of section 247I (1) (a), the prosecution’s notice is to contain the following:(a) the matters required to be included in the notice of the prosecution case under section 247E,(b) a copy of any information, document or other thing in the possession of the prosecutor that would reasonably be regarded as adverse to the credit or credibility of the defendant,(c) a list identifying the affidavits or statements of those witnesses who are proposed to be called at the hearing of the proceedings by the prosecutor.Note. The prosecutor is not required to include in a notice anything that has already been included in a brief of evidence in relation to the matter served on the defendant or that has otherwise been provided or disclosed to the defendant (see section 247U (1)).
247K Defence response—court-ordered preliminary disclosure
For the purposes of section 247I (1) (b), the notice of the defence response is to contain the following:(a) the matters required to be included in a notice under section 247F,(b) a statement, in relation to each fact set out in the statement of facts provided by the prosecutor, as to whether the defendant considers the fact is an agreed fact (within the meaning of section 191 of the Evidence Act 1995) or the defendant disputes the fact,(c) a statement, in relation to each matter and circumstance set out in the statement of facts provided by the prosecutor, as to whether the defendant takes issue with the matter or circumstance as set out,(d) notice as to whether the defendant proposes to dispute the admissibility of any proposed evidence disclosed by the prosecutor and the basis for the objection,(e) if the prosecutor disclosed an intention to adduce expert evidence at the hearing of the proceedings, notice as to whether the defendant disputes any of the expert evidence and which evidence is disputed,(f) a copy of any report, relevant to the proceedings, that has been prepared by a person whom the defendant intends to call as an expert witness at the hearing of the proceedings,(g) if the prosecutor disclosed an intention to adduce evidence at the hearing of the proceedings that has been obtained by means of surveillance, notice as to whether the defendant proposes to require the prosecutor to call any witnesses to corroborate that evidence and, if so, which witnesses will be required,(h) notice as to whether the defendant proposes to raise any issue with respect to the continuity of custody of any proposed exhibit disclosed by the prosecutor,(i) if the prosecutor disclosed an intention to tender at the hearing of the proceedings any transcript, notice as to whether the defendant accepts the transcript as accurate and, if not, in what respect the transcript is disputed,(j) notice as to whether the defendant proposes to dispute the authenticity or accuracy of any proposed documentary evidence or other exhibit disclosed by the prosecutor,(k) notice of any significant issue the defendant proposes to raise regarding an application for an appearance order, severability of the charges or separate trials or sentencing proceedings for the charges,(l) notice of any consent the defendant proposes to give under section 184 of the Evidence Act 1995.Note. The defendant is not required to include in a notice anything that has already been provided or disclosed to the prosecutor (see section 247U (2)).
247L Prosecution response to defence response—court-ordered preliminary disclosure
For the purposes of section 247I (1) (c), the notice of the prosecution response to the defence response is to contain the following:(a) if the defendant has disclosed an intention to adduce expert evidence at the hearing of the proceedings, notice as to whether the prosecutor disputes any of the expert evidence and, if so, in what respect,(b) if the defendant has disclosed an intention to tender any exhibit at the hearing of the proceedings, notice as to whether the prosecutor proposes to raise any issue with respect to the continuity of custody of the exhibit,(c) if the defendant has disclosed an intention to tender any documentary evidence or other exhibit at the hearing of the proceedings, notice as to whether the prosecutor proposes to dispute the accuracy or admissibility of the documentary evidence or other exhibit,(d) notice as to whether the prosecutor proposes to dispute the admissibility of any other proposed evidence disclosed by the defendant, and the basis for the objection,(e) a copy of any information, document or other thing in the possession of the prosecutor, not already disclosed to the defendant, that might reasonably be expected to assist the case for the defence,(f) a copy of any information, document or other thing that has not already been disclosed to the defendant and that is required to be contained in the notice of the case for the prosecution.
247M Dispensing with formal proof
(1) If a fact, matter or circumstance was alleged in a notice required to be given to the defendant by the prosecutor in accordance with this Division and the defendant was required to give a defence response under section 247K but did not disclose in the response an intention to dispute or require proof of the fact, matter or circumstance, the court may order that:(a) a document asserting the alleged fact, matter or circumstance may be admitted at the hearing of the proceedings as evidence of the fact, matter or circumstance, and(b) evidence may not, without the leave of the court, be adduced to contradict or qualify the alleged fact, matter or circumstance.(2) If evidence was disclosed by the prosecution to the defendant in accordance with this Division and the defendant was required to give a defence response under section 247K but did not disclose in the response an intention to dispute the admissibility of the evidence and the basis for the objection, the court may, by order, dispense with the application of any one or more of the following provisions of the Evidence Act 1995 in relation to the adducing of the evidence at the hearing of the proceedings:(a) Division 3, 4 or 5 of Part 2.1,(b) Part 2.2 or 2.3,(c) Parts 3.2–3.8.(3) The court may, on the application of a party, direct that the party may adduce evidence of 2 or more witnesses in the form of a summary if the court is satisfied that:(a) the summary is not misleading or confusing, and(b) admission of the summary instead of evidence from the witnesses will not result in unfair prejudice to any party to the proceedings.(4) The court may, in a direction under subsection (3), require that one or more of the witnesses whose evidence is to be adduced in the form of a summary are to be available for cross-examination.(5) The opinion rule (within the meaning of the Evidence Act 1995) does not apply to evidence adduced in accordance with a direction under subsection (3).(6) The provisions of this section are in addition to the provisions of the Evidence Act 1995, in particular, section 190.(7) This section does not affect section 4 (2) of the Evidence Act 1995.Note. Section 4 (2) of the Evidence Act 1995 provides that the Act applies in proceedings relating to sentencing only if the court directs that the law of evidence apply in the proceedings.
247N Sanctions for non-compliance with preliminary disclosure requirements
(1) Exclusion of evidence not disclosed
The court may refuse to admit evidence in proceedings that is sought to be adduced by a party who failed to disclose the evidence to the other party in accordance with requirements for preliminary disclosure imposed by or under this Division.Note. The only evidence required from a defendant in the context of a preliminary disclosure is expert evidence (see section 247K (f)). Accordingly, such evidence may also be dealt with by the court under subsection (2).(2) Exclusion of expert evidence where report not provided
The court may refuse to admit evidence from an expert witness in proceedings that is sought to be adduced by a party if the party failed to give the other party a copy of a report by the expert witness in accordance with requirements for preliminary disclosure imposed by or under this Division.(3) Adjournment
The court may grant an adjournment to a party if the other party seeks to adduce evidence in the proceedings that the other party failed to disclose in accordance with requirements for preliminary disclosure imposed by or under this Division and that would prejudice the case of the party seeking the adjournment.(4) Application of sanctions
Without limiting the regulations that may be made under subsection (5), the powers of the court may not be exercised under this section to prevent a defendant adducing evidence unless the prosecutor has complied with the requirements for preliminary disclosure imposed on the prosecution by or under this Division.(5) Regulations
The regulations may make provision for or with respect to the exercise of the powers of a court under this section (including the circumstances in which the powers may not be exercised).
247O Disclosure requirements are ongoing
(1) The obligation to comply with the requirements for preliminary disclosure imposed by or under this Division continues until any of the following happens:(a) the defendant is acquitted of the charges to which the proceedings relate,(b) the prosecution is terminated,(c) the defendant is sentenced for the offence to which the proceedings relate.(2) Accordingly, if any information, document or other thing is obtained or anything else occurs after preliminary disclosure is made by a party to the proceedings that would have affected that preliminary disclosure had the information, document or thing been obtained or the thing occurred before preliminary disclosure was made, the information, document, thing or occurrence is to be disclosed to the other party to the proceedings as soon as practicable.
247P Court may waive requirements
(1) A court may, by order, waive any of the requirements that apply under this Division.(2) The court may make such an order on its own initiative or on the application of the prosecutor or the defendant.(3) An order may be made subject to such conditions (if any) as the court thinks fit.
247Q Requirements as to notices
(1) A notice under this Division is to be in writing.(2) Any notice purporting to be given under this Division on behalf of the defendant by his or her Australian legal practitioner is, unless the contrary is proved, taken to have been given with the authority of the defendant.(3) A notice under this Division that is required to be given to a prosecutor may be given to the prosecutor in the following manner, or as otherwise directed by the court:(a) by delivering it to the prosecutor,(b) by leaving it at the office of the prosecutor,(c) by sending it by post or facsimile to the prosecutor at the office of the prosecutor,(d) by sending it by electronic mail to the prosecutor, but only if the prosecutor has agreed to notice being given in that manner.(4) A notice under this Division that is required to be given to a defendant may be given to the defendant in the following manner, or as otherwise directed by the court:(a) by delivering it to the defendant,(b) by leaving it at the office of the Australian legal practitioner representing the defendant,(c) by sending it by post or facsimile to the Australian legal practitioner representing the defendant at the office of the Australian legal practitioner,(d) by sending it by electronic mail to the Australian legal practitioner, but only if the Australian legal practitioner has agreed to notice being given in that manner.(5) A party required to give a notice under this Division must file a copy of the notice with the court as soon as practicable after giving it, or as otherwise required by the court.
247R Copies of exhibits and other things not to be provided if impracticable
(1) A copy of a proposed exhibit, document or thing is not required to be included in a notice under this Division if it is impossible or impractical to provide a copy.(2) However, the party required to give the notice:(a) is to specify in the notice a reasonable time and place at which the proposed exhibit, document or thing may be inspected, and(b) is to allow the other party to the proceedings a reasonable opportunity to inspect the proposed exhibit, document or thing referred to in the notice.
247S Personal details not to be provided
(1) The prosecutor is not to disclose in any notice under this Division the address or telephone number of any witness proposed to be called by the prosecutor, or of any other living person, unless:(a) the address or telephone number is a materially relevant part of the evidence, or(b) the court makes an order permitting the disclosure.(2) An application for such an order may be made by the defendant or the prosecutor.(3) The court must not make such an order unless satisfied that the disclosure is not likely to present a reasonably ascertainable risk to the welfare or protection of any person or that the interests of justice (including the defendant’s right to prepare properly for the hearing of the evidence for the prosecution) outweigh any such risk.(4) This section does not prevent the disclosure of an address if the disclosure does not identify it as a particular person’s address, or it could not reasonably be inferred from the matters disclosed that it is a particular person’s address.(5) An address or telephone number that must not be disclosed may, without reference to the person who made the affidavit or statement being disclosed, be deleted from that affidavit or statement, or rendered illegible, before the affidavit or statement is given to the defendant.
247T Requirements as to statements of witnesses
(1) A statement of a witness that is included in a notice under this Division may be in the form of questions and answers.(2) If a notice includes a statement that is, wholly or in part, in a language other than English, there must be annexed to it a document purporting to contain a translation of the statement, or so much of it as is not in the English language, into the English language.
247U Exemption for matters previously disclosed
(1) The prosecutor is not required to include in a notice under this Division anything that has already been included in a brief of evidence in relation to the matter served on the defendant in accordance with this or any other Act or that has otherwise been provided or disclosed to the defendant.(2) The defendant is not required to include in a notice under this Division anything that has already been provided or disclosed to the prosecutor.
247V Court powers to ensure efficient management and conduct of trial or sentencing hearing
(1) On or after the commencement of the trial or sentencing hearing, the court may make such orders, determinations or findings, or give such directions or rulings, as it thinks appropriate for the efficient management and conduct of the trial or sentencing hearing.(2) Without limiting subsection (1), the court may order that any of the parties to the proceedings disclose any matter that was, or could have been, required to be disclosed under this Division before the commencement of the trial or sentencing hearing.
247W Preliminary orders and other orders bind presiding Judge
(1) A preliminary order made in proceedings is binding on the presiding Judge in those proceedings unless, in the opinion of the presiding Judge, it would not be in the interests of justice for the order to be binding.(2) If, on an appeal against conviction or sentence, a new trial or sentencing hearing is ordered, a preliminary order, or an order made by the presiding Judge, in relation to the proceedings from which the conviction or sentence arose, is binding on the presiding Judge who is presiding at the fresh hearing unless:(a) in the opinion of the presiding Judge who is presiding at the fresh hearing, it would not be in the interests of justice for that order to be binding, or(b) that order is inconsistent with an order made on appeal.(3) If proceedings before a presiding Judge are discontinued for any reason, a preliminary order, or an order made by the presiding Judge, in relation to those proceedings is binding on a presiding Judge presiding at any subsequent hearing relating to the same offence as the discontinued proceedings unless, in the opinion of the presiding Judge presiding at the subsequent hearing, it would not be in the interests of justice for the order to be binding.(4) In this section:preliminary order means any order made by a Judge, before the commencement of a trial or sentencing hearing, in proceedings to which this Division applies.
(1) A statement about any matter that is made by or on behalf of the defendant for the purposes of complying with requirements for preliminary disclosure imposed by or under this Division does not constitute an admission of that matter by the defendant.(2) The court may make orders to resolve any dispute between the parties to criminal proceedings about:(a) the requirements for preliminary disclosure imposed by or under this Division, or(b) the use of anything disclosed under this Division (including restrictions on publication or further disclosure).(3) Nothing in this Division prevents any voluntary preliminary disclosure by the defendant to the prosecutor of any information, document or other thing that the defendant proposes to adduce in evidence in the proceedings.(4) This Division does not limit any obligation (arising otherwise than under this Division) for preliminary or pre-trial disclosure that is capable of being complied with concurrently with requirements imposed by or under this Division, but this Division prevails to the extent of any inconsistency with any such obligation. Any such obligation extends to obligations imposed by the common law, the rules of court, the legal profession rules made under Part 7.5 of the Legal Profession Act 2004 and prosecution guidelines issued by the Director of Public Prosecutions or any other prosecuting authority.(5) However, this Division does not affect any immunity that applies by law to the disclosure of any information, document or other thing, including, for example, legal professional or client legal privilege, public interest immunity and sexual assault communications privilege under Division 2 of Part 5 of Chapter 6.(6) Nothing in this Division limits any powers that a court has apart from this Division in relation to proceedings.(7) The provisions of this Division prevail over the provisions of the Evidence Act 1995 to the extent of any inconsistency with those provisions.
(1) The Minister is to review this Division to determine whether the policy objectives of the Division remain valid and whether the terms of the Division remain appropriate for securing those objectives.(2) The review is to be undertaken as soon as possible after the period of 2 years from the commencement of section 247A.(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 2 years.
A Judge is not required to proceed to hear and determine a case if any pre-trial procedures required by Division 2A or by the rules to be completed before the trial of the case commences have not been completed.
249 Procedure where prosecutor does not, but accused person does, appear
(1) If the prosecutor does not appear on the day and at the time and place set by an order under Division 2 (or on a day to which a hearing has been adjourned), but the accused person attends, the court, if satisfied that the prosecutor was notified of the day, time and place:(a) must discharge the accused person as to the offence the subject of the proceedings, with or without costs, or(b) if the court thinks it appropriate, adjourn the hearing to a specified time and place.(2) Subsection (1) does not empower the court to order costs to be paid in proceedings for an offence referred to in section 475A of the Crimes Act 1900.(3) Division 4 applies to any award of costs arising from proceedings being dealt with under subsection (1).
250 Procedure where accused person does not obey order to appear
If the accused person does not appear on the day and at the time and place set by an order under Division 2 (or on a day to which a hearing has been adjourned), the court may, if satisfied that the order was served on the accused person:(a) proceed to hear and determine the matter in the absence of the accused person, or(b) if the court thinks the matter should not proceed on that day or without the accused person, adjourn the hearing to a specified time and place and make an order for the apprehension of the accused person under Division 2.
251 Procedure where both parties do not appear
If both the prosecutor and the accused person are not present, on a day and at the time and place to which a hearing has been adjourned, the court may proceed to hear and determine the matter in the absence of the parties.
252 Procedure where both parties appear
If both the prosecutor and the accused person are present on a day and at the time and place set for the hearing and determination of proceedings for a summary offence (including a day, time and place to which a hearing has been adjourned) the court must proceed to hear and determine the matter.
254 Enforcement of fines and orders
The payment of any money ordered by a court exercising summary jurisdiction under this Part to be paid as a penalty or for costs under Division 4 is taken to be a fine within the meaning of the Fines Act 1996.
255 Termination of lower court proceedings on commencement of proceedings under this Part
Any proceedings in a court to which Parts 2–4 apply for an offence for which proceedings may be taken under this Part or before that court are to be terminated on the court being notified, in accordance with the rules, of the commencement of proceedings under this Part for the offence.
256 Effect of conviction under this Part
A conviction under this Part for an offence that is of a kind that may be tried either on indictment or under this Part is taken for all purposes, except the Crimes (Local Courts Appeal and Review) Act 2001, to be a conviction on indictment.
257 Rules for summary criminal procedure
(1) The Rule Committee may make rules for or with respect to the practice and procedure of a court in the exercise of summary jurisdiction under this Part.(2) Without limiting the generality of subsection (1), the rules may make provision for or with respect to:(a) the service of orders under Division 2,(b) pre-trial procedures and related practices,(c) the attendance or apprehension of witnesses,(d) the examination of witnesses on oath, affirmation or declaration,(e) the production by witnesses of books, documents and writings,(f) the execution of warrants for the apprehension of any person,(g) any matter that by this Part is required to be prescribed by rules or that is necessary or convenient for the carrying out of or giving effect to the provisions of this Act relating to the summary jurisdiction of a court.(3) Nothing in this section limits the rule-making powers conferred on the Supreme Court by the Supreme Court Act 1970.
In this Division:professional costs means costs (other than court costs) relating to professional expenses and disbursements (including witnesses’ expenses) in respect of proceedings before a court.
257B When costs may be awarded to prosecutor
A court may, in and by a conviction or order, order an accused person to pay to the registrar of the court, for payment to the prosecutor, such costs as the court specifies or, if the conviction or order directs, as may be determined under section 257G, if:(a) the court convicts the accused person of an offence, or(b) the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of an offence.
257C When professional costs may be awarded to accused person
(1) A court may at the end of proceedings under this Part order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.(2) The amount of professional costs is to be such professional costs as the court specifies or, if the order directs, as may be determined under section 257G.(3) Without limiting the operation of subsection (1), a court may order that the prosecutor in proceedings under this Part pay professional costs if:(a) the accused person is discharged as to the offence the subject of the proceedings, or(b) the matter is dismissed because the prosecutor fails to appear, or(c) the matter is withdrawn or the proceedings are for any reason invalid.
257D Limit on award of professional costs against a prosecutor acting in a public capacity
(1) Professional costs are not to be awarded in favour of an accused person in proceedings under this Part unless the court is satisfied as to one or more of the following:(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought,(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs.(2) This section:(a) does not apply to the awarding of costs against a prosecutor acting in a private capacity, and(b) does not apply in relation to proceedings for an offence against the Work Health and Safety Act 2011 or the regulations under that Act.(3) An officer of an approved charitable organisation under the Prevention of Cruelty to Animals Act 1979 is taken not to be acting in a private capacity if the officer acts as the prosecutor in any proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003.
257E Public officers and police officers not personally liable for costs
(1) A public officer or a police officer is entitled to be indemnified by the State for any costs awarded against the officer personally as the prosecutor in any criminal proceedings in a court in which the officer is acting in his or her capacity as a public officer or a police officer.(2) In this section:public officer does not include a councillor or an employee of a council or any other person prescribed by the regulations for the purposes of this section.
(1) A court may in any proceedings under this Part, at its discretion or on the application of a party, order that one party pay costs if the matter is adjourned.(2) An order may be made only if the court is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delays of the party against whom the order is made.(3) The order must specify the amount of costs payable or may provide for the determination of the amount at the end of the proceedings.(4) An order may be made whatever the result of the proceedings.
The professional or other costs payable by a prosecutor or accused person in accordance with an order directing that the amount of costs is to be determined under this section are to be determined:(a) by agreement between the prosecutor and accused person, or(b) if no such agreement can be reached, in accordance with Division 11 of Part 3.2 of the Legal Profession Act 2004 (with or without modifications prescribed by the regulations).