Criminal Procedure Act 1986 No 209
Current version for 28 October 2014 to date (accessed 18 December 2014 at 15:02)
Chapter 4Part 2Division 3

Division 3 Hearings

190   Time for hearing

(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 or at any subsequent mention of the proceedings and has not lodged a written plea of not guilty in accordance with section 182, the court may proceed to hear and determine the matter on the first or a subsequent day on which the matter is listed for mention at its discretion.
(4)  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 mention date.
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.

195   How evidence is taken

(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.

202   Determination by court

(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 Act 2013) or the former road transport legislation (within the meaning of Part 2 of Schedule 4 to that Act), 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.
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