Criminal Procedure Act 1986 No 209
Historical version for 29 June 2000 to 30 July 2000 (accessed 24 November 2014 at 20:18) Current version
Part 4

Part 4 Criminal procedure generally

Division 1 Application of Part

92   Application of Part

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

Division 2 General trial procedure

93   Practice as to entering the dock

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

94   Right to inspect depositions on trial

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

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

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

96   Accused person may be defended by counsel

An accused person is entitled to make full answer and defence by counsel.

97   Opening address to jury by accused person

(1)  An accused person or his or her counsel may address the jury immediately after the opening address of the prosecuting authority.
(2)  Any such opening address is to be limited generally to an address on:
(a)  the matters disclosed in the prosecuting authority’s opening address, including those that are in dispute and those that are not in dispute, and
(b)  the matters to be raised by the accused person.
(3)  If the accused person intends to give evidence or to call any witness in support of the defence, the accused person or his or her counsel is entitled to open the case for the defence before calling evidence, whether or not an address has been made to the jury.

98   Closing address to jury by accused person

(1)  An accused person or his or her counsel may address the jury after the close of the evidence for the defence and any evidence in reply by the Crown and after the prosecuting authority has made a closing address to the jury or declined to make a closing address to the jury.
(2)  If, in the accused person’s closing address, relevant facts are asserted that are not supported by any evidence that is before the jury, the court may grant leave for the Crown to make a supplementary address to the jury replying to any such assertion.

99   Summary by Judge

(1)  At the end of a criminal trial before a jury, a Judge need not summarise the evidence given in the trial if of the opinion that, in all the circumstances of the trial, a summary is not necessary.
(2)  This section applies despite any rule of law or practice to the contrary.
(3)  Nothing in this section affects any aspect of a Judge’s summing up function other than the summary of evidence in a trial.

100   Witnesses in mitigation

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

Division 3 Evidentiary provisions

101   Proof of service of notice to produce

An affidavit by:
(a)  the Director of Public Prosecutions or the Solicitor for Public Prosecutions, or
(b)  a member of the staff of the Director of Public Prosecutions, or
(c)  a legal practitioner or legal practitioner’s clerk, or
(d)  the accused person, or
(e)  a police officer,
as to the service of any notice to produce and of the time when it was served, with a copy of the notice annexed to the affidavit, is sufficient evidence of the service of the original of the notice and of the time when it was served.

102   Stealing goods from vessel or wharf

(1)  This section applies to the following offences:
(a)  any offence involving the stealing of property:
(i)  from any vessel, barge, boat or train, or
(ii)  from any dock, wharf, quay, railway yard or other railway premises, or
(iii)  from any store or shed used in connection with and adjoining any such dock, wharf, quay, railway yard or other railway premises, or
(iv)  in the course of transit from any vessel, barge, boat or train, or from any store or shed used in connection with and adjoining such wharf, dock, quay, railway yard or other railway premises, or
(b)  any offence involving the receiving of property so stolen knowing it to have been stolen.
(2)  On the prosecution of any person for an offence to which this section applies:
(a)  evidence may be given of any writing, printing, or marks on any property alleged to have been stolen or received, or on any package containing such property, without producing or giving notice to produce the original writing, printing or marks, and
(b)  any document purporting to be a document of title to any property alleged to have been stolen or received:
(i)  is admissible in evidence on production and without further proof, and
(ii)  is evidence of the particulars contained in the document, and that the ownership of the property is in the consignee referred to in the document or his or her assignee.
(3)  In this section:

document of title to property includes:

(a)  any bill of lading, India warrant, dock warrant, warehouse keeper’s certificate, warrant, or order for the delivery or transfer of any goods or valuable thing, and
(b)  any bought and sold note or other document:
(i)  used in the ordinary course of business as proof of the possession or control of goods, or
(ii)  purporting to authorise, by endorsement or delivery, the possessor of such document to transfer or receive any goods thereby represented or therein mentioned or referred to.

train includes any railway carriage, railway truck or other railway vehicle that is on any railway.

103   Incriminating statements admissible though on oath

An incriminating statement made voluntarily by an accused person before any charge has been preferred against the accused person in respect of an indictable offence is not to be rejected merely because the statement was made on oath.

104   Compellability of spouses to give evidence in certain proceedings

(1)  In this section:
(a)  a reference to the husband or wife of an accused person includes a reference to a person living with the accused person as the husband or wife of the accused person on a bona fide domestic basis although not married to the accused person, and
(b)  a reference to a domestic violence offence is a reference to a domestic violence offence within the meaning of the Crimes Act 1900, and
(c)  a reference to a domestic violence offence committed on the husband or wife of an accused person includes a reference to an offence of contravening a prohibition or restriction specified in an apprehended violence order that was made against the accused person and in respect of which the husband or wife was the protected person, and
(d)  a reference to a child assault offence is a reference to:
(i)  a prescribed sexual offence committed on a child under the age of 18 years, or
(ii)  an offence under, or mentioned in, section 24, 27, 28, 29, 30, 33, 33A, 35, 39, 41, 42, 43, 44, 46, 47, 48, 49, 58, 59 or 61 of the Crimes Act 1900 committed on a child under the age of 18 years, or
(iii)  an offence that, at the time it was committed, was a child assault offence for the purposes of this section or section 407AA of the Crimes Act 1900, or
(iv)  an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in subparagraph (i), (ii) or (iii), and
(e)  a reference to a child assault offence committed on a child includes a reference to an offence of contravening a prohibition or restriction specified in an apprehended violence order that was made against the accused person and in respect of which that child was the protected person.
(2)  The husband or wife of an accused person in proceedings in any court:
(a)  for a domestic violence offence (other than an offence arising from a negligent act or omission) committed on the husband or wife, or
(b)  for a child assault offence (other than an offence arising from a negligent act or omission) committed on:
(i)  a child living in the household of the accused person, or
(ii)  a child who, although not living in the household of the accused person, is a child of the accused person and the husband or wife,
is compellable to give evidence in the proceedings, either for the prosecution or for the defence, without the consent of the accused person.
(3)  The husband or wife of an accused person is not compellable to give evidence for the prosecution as referred to in subsection (2) if the husband or wife has applied to, and been excused by, the court.
(4)  A court may excuse the husband or wife of an accused person from giving evidence for the prosecution as referred to in subsection (2) if satisfied:
(a)  that the application to be excused is made by that husband or wife freely and independently of threat or any other improper influence by any person, and
(b)  that it is relatively unimportant to the case to establish the facts in relation to which it appears that the husband or wife is to be asked to give evidence, or there is other evidence available to establish those facts, and
(c)  that the offence with which the accused person is charged is of a minor nature.
(5)  When excusing the husband or wife of an accused person from giving evidence under subsection (4), the court:
(a)  must state the reasons for doing so, and
(b)  must cause those reasons to be recorded in writing in a form prescribed by the regulations.
(6)  An application under this section by the husband or wife of an accused person to be excused from giving evidence is to be made and determined in the absence of the jury (if any) and the accused person, but in the presence of the accused person’s counsel.
(7)  A court may conduct the hearing of an application under this section in any manner it thinks fit, and is not bound to observe rules of law governing the admission of evidence but may obtain information on any matter in any manner it thinks fit.
(8)  The fact that the husband or wife of an accused person in proceedings for an offence has applied to be excused, or has been excused, from giving evidence in the proceedings is not to be made the subject of any comment by the court or by any party in the proceedings.

105   Admissibility of evidence relating to sexual experience

(1)  This section applies to prescribed sexual offence proceedings.
(2)  Evidence relating to the sexual reputation of the complainant is inadmissible.
(3)  Evidence that discloses or implies:
(a)  that the complainant has or may have had sexual experience or a lack of sexual experience, or
(b)  has or may have taken part or not taken part in any sexual activity,
is inadmissible.
(4)  Subsection (3) does not apply:
(a)  if the evidence:
(i)  is of the complainant’s sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and
(ii)  is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,
(b)  if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant,
(c)  if:
(i)  the accused person is alleged to have had sexual intercourse (as defined in section 61H (1) of the Crimes Act 1900) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and
(ii)  the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person,
(d)  if the evidence is relevant to:
(i)  whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or
(ii)  whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person,
(e)  if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence),
(f)  if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked,
and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.
(5)  A witness must not be asked:
(a)  to give evidence that is inadmissible under subsection (2) or (3), or
(b)  by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible.
(6)  If the court is satisfied:
(a)  that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period:
(i)  had sexual experience, or a lack of sexual experience, of a general or specified nature, or
(ii)  had taken part in, or not taken part in, sexual activity of a general or specified nature, and
(b)  the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication,
the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified.
(7)  On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury.
(8)  If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision.
(9)  In this section:

accused person, in relation to any proceedings, means the person who stands, or any of the persons who stand, charged in those proceedings with a prescribed sexual offence.

complainant, in relation to any proceedings, means the person, or any of the persons, on whom a prescribed sexual offence with which the accused person stands charged in those proceedings is alleged to have been committed.

prescribed sexual offence proceedings means proceedings in which a person stands charged with a prescribed sexual offence, whether the person stands charged with that offence alone or together with any other offence (as an additional or alternative count) and whether or not the person is liable, on the charge, to be found guilty of any other offence.

106   Disclosure of address or telephone number of witness

(1)  A witness in proceedings for an offence, or a person who makes a written statement that is likely to be produced in proceedings for an offence, is not required to disclose his or her address or telephone number, unless:
(a)  the address or telephone number is a materially relevant part of the evidence, or
(b)  the court makes an order requiring the disclosure.
(2)  An application for such an order may be made by the prosecution or the defence.
(3)  The court may make such an order only if it is satisfied that disclosure is not likely to present a reasonably ascertainable risk to the welfare or protection of any person or that the interests of justice outweigh any such risk.
(4)  An address or telephone number that is not required to be disclosed and that is contained in a written statement may, without reference to the person who made the written statement, be deleted from the statement, or rendered illegible, before the statement is produced in court or given to the accused person.
(5)  A written statement is not inadmissible as evidence on the ground that it either does or does not disclose any such address or telephone number as referred to in this section.
(6)  This section does not prevent the disclosure of an address in a written statement if the statement does not identify it as a particular person’s address.
(7)  This section does not affect the operation of section 48BA of the Justices Act 1902.
(8)  In this section:

address includes a private, business or official address.

telephone number includes a private, business or official telephone number.

107   Warning to be given by Judge in relation to lack of complaint in certain sexual offence proceedings

(1)  This section applies if, on the trial of a person for a prescribed sexual offence, evidence is given or a question is asked of a witness that tends to suggest:
(a)  an absence of complaint in respect of the commission of the alleged offence by the person on whom the offence is alleged to have been committed, or
(b)  delay by that person in making any such complaint.
(2)  In circumstances to which this section applies, the Judge:
(a)  must warn the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and
(b)  must inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault.

108   Admissions by suspects

(1)  This section applies to an admission:
(a)  that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and
(b)  that was made in the course of official questioning, and
(c)  that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person.
(2)  Evidence of an admission to which this section applies is not admissible unless:
(a)  there is available to the court:
(i)  a tape recording made by an investigating official of the interview in the course of which the admission was made, or
(ii)  if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or
(b)  the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made.
(3)  The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2).
(4)  In this section:

investigating official means:

(a)  a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or
(b)  a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations.

official questioning means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence.

reasonable excuse includes:

(a)  a mechanical failure, or
(b)  the refusal of a person being questioned to have the questioning electronically recorded, or
(c)  the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned.

tape recording includes:

(a)  audio recording, or
(b)  video recording, or
(c)  a video recording accompanied by a separately but contemporaneously recorded audio recording.

Division 4 Medical examinations and law enforcement devices

109   Medical examinations

(1)  Unless otherwise directed by the court, it is not necessary for a person who has made a scientific examination of any article or living person or dead body to give evidence of the result of the examination.
(2)  A certificate under the hand of any such person stating:
(a)  that he or she has made the examination, and
(b)  the nature of his or her scientific qualifications, and
(c)  the facts and conclusions he or she has arrived at,
is admissible as evidence of the matters stated in the certificate.
(3)  If such a certificate is tendered by the prosecuting authority, a court may not dispose of the case summarily except with the consent of the accused person.

110   Law enforcement devices

(1)  A certificate:
(a)  that would, by virtue of section 33, 35, 46, 47 or 57 of the Road Transport (Safety and Traffic Management) Act 1999, be admissible in proceedings for an offence under that Act as evidence of the particulars certified in and by the certificate, or
(b)  that would, by virtue of section 24, 25 or 26 of the Marine (Boating Safety—Alcohol and Drugs) Act 1991, be admissible in proceedings for an offence under that Act as evidence of the particulars certified in and by the certificate,
is admissible in all criminal proceedings as evidence of those particulars.
(2)  Despite subsection (1), such a certificate is not admissible in proceedings under the Drug Misuse and Trafficking Act 1985 as evidence of the use or administration, by the person to whom the certificate relates, of any prohibited drug within the meaning of that Act.
(3)  Evidence is not required in any criminal proceedings:
(a)  as to the accuracy or reliability of any approved camera detection device, approved camera recording device, approved speed measuring device or breath analysing instrument to which such a certificate relates, or
(b)  as to the manner in which any approved camera detection device, approved camera recording device, approved speed measuring device or breath analysing instrument to which such a certificate relates was operated,
unless evidence is adduced that the device or instrument was not accurate, was not reliable or was not properly operated.
(4)  A photograph that would, by virtue of section 47 or 57 of the Road Transport (Safety and Traffic Management) Act 1999, be admissible in proceedings under that Act as evidence of the matters shown or recorded on the photograph is admissible in all criminal proceedings as evidence of those matters.
(5)  In this section, approved camera detection device, approved camera recording device, approved speed measuring device and breath analysing instrument have the same meanings as they have in the Road Transport (Safety and Traffic Management) Act 1999.

Division 5 Depositions and written statements

111   Depositions by persons dangerously ill

(1)  If it appears to a justice that:
(a)  a person who is able to give material information about an indictable offence is dangerously ill, and
(b)  the person’s evidence will probably be lost if not immediately taken,
the justice may take the deposition of the person in connection with the offence in the same way as if a prosecution for the offence were then pending before the court.
(2)  The deposition must be in the form prescribed by the regulations and must be signed by the justice.
(3)  As soon as practicable after the deposition is taken, a copy of the deposition must be delivered to the Attorney General, to the Director of Public Prosecutions and to each person whom the deposition tends to incriminate.
(4)  If practicable, each person whom the deposition tends to incriminate is entitled, before being committed or placed on trial, to be given full opportunity to cross-examine the deponent.
(5)  If in proceedings against an accused person:
(a)  for the offence to which the deposition relates, or
(b)  for the murder or manslaughter of the deponent, in the case of his or her death or alleged death by reason of the offence,
it is proved to the satisfaction of the court that the deponent is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the deponent’s life, the deposition may be admitted as evidence for or against the accused person, whether or not it was taken in the presence or hearing of the prosecuting authority or the accused person.

112   Depositions tendered by prosecution

(1)  A deposition may be admitted as evidence for the prosecution at the trial of an accused person on proof on oath of each of the following matters:
(a)  that the deponent:
(i)  is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the deponent’s life, or
(ii)  is absent from Australia,
(b)  that the deposition was recorded:
(i)  by or in the presence of the justice before whom it was taken, and
(ii)  in the presence of the accused person or during any period when the accused person (having been excused under section 41 (1B) of the Justices Act 1902) was absent,
(c)  that the accused person, or his or her counsel, had full opportunity to cross-examine the witness, or that the accused person (having been excused under section 41 (1B) of the Justices Act 1902) was absent when the deposition was taken and was not represented by counsel.
(2)  The deposition:
(a)  must be in writing, signed by the justice by or before whom the deposition was taken, or
(b)  must be in the form of a written transcript of matter recorded by means, other than writing, authorised by law for the recording of depositions.
(3)  If the deposition is in the form of a written transcript referred to in subsection (2) (b), it must be proved on oath:
(a)  that the record so made is a true record of the matter so deposed, and
(b)  that the transcript of the record is a correct transcript of that record.
(4)  If it appears from the deposition:
(a)  that it was made in the presence of the accused person, and
(b)  that the accused person, or his or her counsel, had full opportunity to cross-examine the witness,
the deposition is taken to have been so made and the accused person, or his or her counsel, is taken to have had such an opportunity, unless proved to the contrary.
(5)  If it appears from the deposition:
(a)  that it was made while the accused person (having been excused under section 41 (1B) of the Justices Act 1902) was absent, and
(b)  that the accused person was not represented by counsel at that time,
the deposition is taken to have been so made and the accused person is taken to have not been represented by counsel, unless proved to the contrary.
(6)  In this section, justice includes a coroner holding office under the Coroners Act 1980.

113   Depositions tendered by accused person

(1)  The deposition of any witness called and examined before a justice by and on behalf of the accused person may, if the accused person so requires, be admitted as evidence in his or her defence at the trial:
(a)  if the witness:
(i)  is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the witness’s life, or
(ii)  is absent from Australia, or
(b)  if the committing justice has certified, before committing the accused person for trial, that in the opinion of the justice:
(i)  the evidence of the witness is material, and
(ii)  the witness is willing to attend the trial, but is unable to bear the expense of attendance.
(2)  A deposition may not be admitted as evidence on the ground referred to in subsection (1) (b) if the witness has, in due time before the trial, been subpoenaed by the Crown.
(3)  In this section, justice includes a coroner holding office under the Coroners Act 1980.

114   Evidentiary effect of certain transcripts

(1)  If a deposition referred to in section 112 or 113 is in the form of a written transcript of matter recorded by means, other than writing, authorised by law for the recording of depositions:
(a)  the record so made is taken to be a true record of the matter so deposed, and
(b)  the transcript of the record is taken to be a correct transcript of that record,
unless proved to the contrary.
(2)  Subsection (1) applies only to:
(a)  a transcript made in the form of shorthand notes, being a transcript identified by, and signed in the handwriting of, the person purporting to have made those notes, or
(b)  a transcript made by other means (other than writing) authorised by law for the recording of depositions, being a transcript certified in the manner prescribed by the regulations made under the Justices Act 1902.

115   Depositions taken during pre-trial investigations

A deposition taken on the preliminary or other investigation of an indictable offence:
(a)  may be admitted as evidence on the trial of the accused person for any other offence, whether of the same or of a different kind, if it would be admissible on his or her trial for the offence in respect of which it was taken, and
(b)  may be proved in the same manner as if the accused person were on trial for that offence.

116   Written statements admitted in committal proceedings

(1)  This section applies to:
(a)  a written statement the whole or any part of which has been admitted as evidence under section 48A of the Justices Act 1902, including any part of the statement that has been rejected under section 48F of that Act,
(b)  a written statement the whole or any part of which has been tendered as evidence under section 51A of the Justices Act 1902,
referred to in this section as a prescribed written statement.
(2)  Except in so far as the court otherwise orders, a prescribed written statement may be admitted as evidence for the prosecution at the trial of the accused person on proof on oath that the person who made the statement:
(a)  is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the person’s life, or
(b)  is absent from Australia.
(3)  If the accused person so requires, a prescribed written statement may be admitted as evidence in the accused person’s defence at the trial of the accused person whenever:
(a)  the person who made the statement:
(i)  is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the person’s life, or
(ii)  is absent from Australia, or
(b)  the committing justice has certified, before committing the person for trial, that in the opinion of the justice:
(i)  the evidence of the person who made the statement is material, and
(ii)  the person is willing to attend the trial, but is unable to bear the expense of attendance.
(4)  A statement may not be admitted as evidence on the ground referred to in subsection (3) (b) if the person who made the statement has, in due time before the trial, been subpoenaed by the Crown.
(5)  A prescribed written statement made in respect of an indictable offence may be admitted as evidence on the trial of the accused person for any other offence, whether of the same or of a different kind, if it would be admissible on his or her trial for the offence in respect of which it was made.
(6)  If at a trial it appears to the court that the whole or any part of a prescribed written statement is inadmissible, the court may reject the statement or that part, as the case may be, as evidence.

Division 6 Restrictions on disclosure of evidence in certain sexual offence proceedings

117   Application of Division

This Division applies to and in respect of the following offences:
(a)  a prescribed sexual offence, or
(b)  an offence under section 66, 73, 74, 78A, 78B, 78N, 78O, 78Q, 79, 80, 86, 87, 89, 90, 91A, 91B, 91D, 91E, 91F or 91G of the Crimes Act 1900, or
(c)  an offence that, at the time it was committed, was an offence to which this Division, or section 77A or 578 of the Crimes Act 1900, applied, or
(d)  an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a), (b) or (c).

118   Proceedings in camera in certain cases

(1)  Any proceeding, or any part of any proceeding, in respect of an offence to which this Division applies is, if the court so directs, to be held in camera.
(2)  If the court makes a direction under this section, it may (either absolutely or subject to conditions) exempt any person from that direction to the extent necessary to allow that person to be present as a support for a person giving evidence or for any other purpose that the court thinks fit.
(3)  The court may make a direction under this section on its own motion or at the request of any party to the proceedings.
(4)  In determining whether to make a direction under this section the court is to consider the following matters:
(a)  the need of the complainant to have any person excluded from those proceedings,
(b)  the need of the complainant to have any person present in those proceedings,
(c)  the interests of justice,
(d)  any other matter that the court thinks relevant.
(5)  In this section:

complainant, in relation to any proceedings for an offence, means the person, or any of the persons, on whom the offence is alleged to have been committed and includes:

(a)  in relation to an offence under section 91D, 91E or 91F of the Crimes Act 1900, the person under the age of 18 years who is alleged to have participated in an act of child prostitution, and
(b)  in relation to an offence under section 91G of the Crimes Act 1900, the person under the age of 18 years who is alleged to have been used for pornographic purposes.

119   Publication of evidence may be forbidden in certain cases

(1)  In any proceedings against a person for an offence to which this Division applies, the court may from time to time make an order forbidding publication of the whole or any part of the evidence tendered in the proceedings or of any report or account of that evidence.
(2)  If the prosecuting authority or the accused person indicates to the court that it is desired that any particular matter given in evidence should be available for publication, no such order is to be made in respect of that matter.
(3)  Any person who contravenes an order under this section is guilty of a summary offence and liable to a maximum penalty of 20 penalty units.
(4)  This section is subject to any Act or law under which evidence relating to a child under the age of 18 years, or a report or account of that evidence, may not be published.

Division 7 Miscellaneous

120   No court fees to be taken from accused persons

(1)  This section applies to criminal proceedings in any court in respect of any offence.
(2)  Despite subsection (1), this section does not apply to:
(a)  proceedings for a summary offence for which a penalty notice has been issued as referred to in section 20 of the Fines Act 1996, but in respect of which the accused person has elected to have the matter dealt with by a court under section 36 of that Act, or
(b)  proceedings that are brought in a court for the purpose of appealing against, or obtaining a review of, some other court’s order or decision in proceedings for a summary offence.
(3)  No court fees are payable:
(a)  for the issuing of any process on behalf of the accused person, or
(b)  for the recording of any appearance or plea made by the accused person,
in connection with criminal proceedings to which this section applies.

121   Witnesses neglecting to attend trial captured under warrant may be admitted to bail

If a person bound by a bail undertaking, or served with a subpoena, to attend as a witness in any court at a trial:
(a)  fails to appear when called in open court, either at such trial, or on the day appointed for such trial, and
(b)  is arrested under a warrant issued by the court,
bail may be taken before any justice for his or her appearance at the trial.

122   On trial for perjury: presumption of authority to administer oath

On a trial for perjury, the person before whom the perjury is alleged to have been committed is presumed to have had authority to administer the oath, or take the declaration, or affirmation, unless the contrary is shown.

123   Joint trial in case of perjury

If:
(a)  a number of persons are severally indicted for perjury or false swearing, and
(b)  the statements alleged to be false:
(i)  are alleged to have been made on the same occasion, before the same court or tribunal and in respect of the same subject-matter, and
(ii)  are in each case to the same effect, whether in identical terms or not,
all of those persons may be tried together, at the same time and before the same jury, provided that each person is to have his or her full right of challenge.

124   Alternative verdict of attempt on trial for any indictable offence

If, on the trial of a person for any indictable offence, the jury is not satisfied that the person is guilty of the offence, but is satisfied that he or she is guilty of:
(a)  an attempt to commit the offence, or
(b)  an assault with intent to commit the offence,
it may acquit the person of the offence charged and find the person guilty of the attempt or assault, and the person is liable to punishment accordingly.

125   No further prosecution after trial for serious indictable offence where alternative verdict possible

If under any Act a person who is tried for a serious indictable offence may be acquitted of that offence but found guilty of some other offence, the person is not liable to further prosecution on the same facts for that other offence.

126   Restitution of property

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

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

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