Division 2Division 2 Offences punishable on summary conviction and complaints
Subdivision 1 Informations and complaints
52 When information may be laid
An information may be laid before a Justice in any case where any person has committed or is suspected to have committed an offence or act in New South Wales for which the person is liable upon summary conviction before a Justice or Justices to be punished by fine, imprisonment, or otherwise.
52A Information taken to be laid
(1) Without limiting the operation of this Subdivision and Subdivision 2, an information is taken to have been laid before a Justice, and a summons issued and served, in respect of a person if:(a) the person has been charged with an offence and served with a copy of a charge sheet containing details of the offence, and(b) the person has been subsequently released on bail, and(c) a copy of the charge sheet or other document setting out the details of the offence, and a bail undertaking under the Bail Act 1978, have been lodged in respect of the person with the clerk of a Local Court or given to a Magistrate.(2) For the purposes of this Act:(a) the copy of the charge sheet or other document setting out the details of the offence lodged with the clerk of a Local Court or given to a Magistrate is taken to be an information that is not substantiated by the oath of the informant or witness, and(b) the bail undertaking is taken to be a summons.
A complaint may be made to a Justice in any case where a Justice or Justices has or have authority by law to make an order for the payment of money, or otherwise.
54 Who may lay or make information or complaint
An information or complaint may be laid or made by the informant or complainant in person, or by his or her counsel, attorney, or other person authorised in that behalf.
55 How information or complaint may be laid or made
An information or complaint may be laid or made without oath, unless it is otherwise required by the provisions of any Act. A complaint need not be in writing unless it is required to be so by the Act upon which it is founded.
56 Time within which information or complaints may be laid or made
(1) An information or complaint may, unless some other time is specially limited by the Act dealing with the matter, be laid or made at any time within six months from the time when the matter of the information or complaint arose.(2) Where an information or complaint has been laid or made in writing without oath, any person able so to do may by his or her oath substantiate the matter thereof, whether or not he or she is the informant or complainant and whether or not that matter arose more than six months before being so substantiated.(3) For the purposes of subsection (2), the matter of the information or complaint may be substantiated on oath before the Justice before whom the information or complaint was laid or made, or before some other Justice.
57 Informations or complaints to be for one matter only
Every information shall be for one offence only, and not for two or more offences. Every such complaint shall be for one matter only and not for two or more matters.
58 How partners etc property of partners etc to be described in information or complaint
(1) Whenever it is necessary in any information or complaint or in any proceedings thereon to state the ownership of any property belonging to, or in the possession of partners, joint tenants, parceners or tenants in common, it shall be sufficient to name one of such persons, and to allege the property to belong to the person so named, and “another” or “others,” as the case may be.(2) Whenever it is necessary in any information or complaint or in any proceedings thereon, to mention for any purpose any partners, joint tenants, parceners or tenants in common, it shall be sufficient to describe them by naming one of such persons, and referring to the rest as “another” or “others,” as the case may be.
Subdivision 2 Issue of warrants and summonses
59 Issue of warrant in first instance
Whenever an information is laid before a Justice, against any person, and the matter thereof substantiated by the oath of the informant or a witness, such Justice may issue his or her warrant in the first instance for the apprehension of such person.
(1) Whenever an information or complaint is laid or made before a Justice, against any person as hereinbefore provided:(a) where the information or complaint is not substantiated as provided by section 56, the Justice before whom the information or complaint was laid or made, or(b) where the information or complaint is so substantiated, the Justice before whom it was so substantiated,may issue his or her summons for the appearance of such person:Provided that nothing herein contained shall oblige a Justice to issue his or her summons in any case where a complaint is by law to be made ex parte.
(2) Where the Justice before whom an information or complaint is laid or made considers that the matter of the information or complaint would be better resolved by mediation than by proceedings under this Act, the Justice may, with the consent of the informant or complainant, instead of issuing a summons under subsection (1), order the informant or complainant to submit the matter of the information or complaint to mediation under the Community Justice Centres Act 1983.(3) Where an order is made under subsection (2) in relation to the matter of an information or complaint but:(a) the matter of the information or complaint may not, by the operation of section 22 (1) of the Community Justice Centres Act 1983, be the subject of a mediation session under that Act,(b) the defendant refuses to attend at, or participate in, a mediation session under that Act or either party withdraws from such a session,(c) the Director of a Community Justice Centre declines under section 24 (1) of that Act to consent to the acceptance of the matter of the information or complaint for mediation, or(d) a mediation session attended by the informant or complainant and the defendant is terminated under section 24 (2) of that Act,a Justice may issue a summons for the appearance of the defendant.
Subdivision 3 Form and service of summons
Every summons for the appearance of any person shall:(a) be under the hand and seal of the Justice issuing it, and(b) be directed to such person, and(c) state shortly the matter of the information or complaint, and(d) require such person to appear at a certain time and place before such Justice as shall then be there to answer to the information or complaint, and be dealt with according to law, and(e) set out, or be accompanied by, information about the right under section 75 to notify a plea in writing.
63 Manner of service of summons
(1) Subject to this section every summons shall be served by a member of the police force or other person upon the person to whom it is directed by delivering it to him or her personally or, if the person cannot conveniently be met with, by leaving it with some person for him or her at his or her last or most usual place of abode.(2) Subject to this section a summons in respect of an information for an offence punishable summarily before a Justice or Justices laid by a member of the police force or a public officer may be served by posting it not less than twenty-eight days before the return day by prepaid letter post addressed to the person to whom it is directed:(a) where that person is a natural person, at his or her last known place of residence or business,(b) where that person is a body corporate, at a place where it trades or carries on business, or(c) in either case referred to in paragraphs (a) and (b):(i) where there is a prescribed address for the person, and(ii) where there are no circumstances making it appear to a court that the prescribed address for that person is not the address referred to in paragraph (a) or, as the case may require, paragraph (b) in relation to that person,at the prescribed address for that person.(2A) In subsection (2), public officer means a person acting in an official capacity:(a) as an officer or a temporary employee under the Public Service Act 1979,(b) as an officer or employee of a corporation that, for the purposes of any Act, is a statutory body representing the Crown,(c) as a councillor or employee of a council within the meaning of the Local Government Act 1993,(d) as an officer or employee of a rural lands protection board under the Rural Lands Protection Act 1998,(e) as an officer within the meaning of the Prevention of Cruelty to Animals Act 1979,(f) as an officer or employee of an area health service constituted under the Health Services Act 1997, or(g) as an officer of the Commonwealth.(3) Subject to subsection (4), service of a summons in the manner referred to in subsection (1) or (2) may be proved by the oath of the member of the police force or other person who served it, or by affidavit or otherwise.(4) Where a summons is posted as provided in this section:(a) the deposition or affidavit of service shall state the manner in which the deponent was informed of the address to which it was so posted and the time and place of posting, and(b) in the absence of any proof to the contrary, the summons shall be deemed to have been duly served on the person to whom it is directed at the time at which it would be delivered in the ordinary course of post.(5) The Justice or Justices at the hearing or adjourned hearing of an information in respect of which a summons has been issued may, notwithstanding service of the summons in the manner provided by subsection (2), order that a further summons in respect of the same offence be served in the manner provided by subsection (1), and may adjourn or further adjourn the hearing to enable that summons to be served in accordance with that order.(6) In this section prescribed address means:(a) in relation to a person alleged to have committed an offence arising out of the driving or use of a motor vehicle or trailer, or an attempt to do so (not being an offence referred to in paragraph (b))—the address appearing as the address of that person on a driver licence within the meaning of the Road Transport (Driver Licensing) Act 1998, or any law of a State or of a Territory of the Commonwealth that corresponds to that Act, produced by that person at or about the time of the alleged offence or upon the investigation thereof,(b) in relation to a person alleged to have committed an offence as owner of a motor vehicle or trailer—the address appearing on or from the records kept by the Roads and Traffic Authority under the Road Transport (Vehicle Registration) Act 1997 in respect of the registration of motor vehicles or trailers, or on or from records of a like nature kept by any authority under any law of a State or of a Territory of the Commonwealth that corresponds to that Act, as the last known address of the person in whose name the motor vehicle or trailer was registered under that Act or law on the date of the alleged offence, or(c) in relation to a person alleged to have committed any other offence against an Act, rule, regulation, ordinance, by-law or order—the address appearing as the address of that person in any licence or registration for the time being in force pertaining to that person or to any property of which that person appears to be the owner or occupier, being a licence or registration held or effected by that person under the Act against which, or under the Act authorising the making of the rule, regulation, ordinance, by-law or order against which, the offence is alleged to have been committed.(7) This section shall be construed as operating in addition to, and not as derogating from, the operation of a provision of any other Act relating to the service of summonses, and any such provision shall be construed as operating in addition to, and not as derogating from, the operation of this section.
Subdivision 4 Form and execution of warrant
(1) Every warrant for the apprehension of any person shall:(a) be under the hand and seal of the Justice issuing it, and(b) be directed to a police constable or other person by name, or generally to the senior officer of police of the district or place where it is to be executed, or to such officer of police and to all other police constables in New South Wales, or generally to all police constables in New South Wales, and(c) name or otherwise describe the person whose appearance is required, as the case may be, and(d) state shortly the matter of the information or complaint, and(e) order the police constable or person to whom it is directed to apprehend the person whose appearance is required, and cause the person to be brought before such Justice, or any other one or more than one Justice, as the Act dealing with the matter may require, to answer to the information or complaint, and may be dealt with according to law.(2)(i) It shall not be necessary to make any such warrant for the apprehension of a defendant returnable at any particular time, but every such warrant shall continue in force till it is executed.(ii) Every other such warrant shall be returnable at a time and place to be stated therein.(3) Every such warrant may be executed by apprehending the person against whom it is directed at any place in New South Wales.(4) Any such warrant may be issued on a Sunday as well as on any other day.
Subdivision 5 Defects in form and variances
65 No objection for defect or variance
(1) No objection shall be taken or allowed to any information, complaint, summons, or warrant in respect of:(a) any alleged defect therein in substance or in form, or(b) any variance between information, complaint, summons, or warrant and the evidence adduced in support of the information or complaint at the hearing.(2) No variance between any information and the evidence adduced in support thereof at the hearing in respect of the time or place at which the offence or act is alleged to have been committed shall be deemed material if it is proved that the information was in fact laid within the time limited by law in that behalf or that the offence or act was committed in New South Wales, as the case may be.(3) Where any such defect or variance appears to the Justice or Justices present and acting at the hearing to be such that the defendant has been thereby deceived or misled such Justice or Justices may upon such terms as the Justice or Justices may think fit adjourn the hearing of the case to some future day.
Subdivision 6 Warrant on default in appearance to summons
66 On non-appearance or absconding, warrants may be issued
(1) Whenever any person for whose appearance a summons has been issued does not appear at the time and place appointed thereby,(a) in the case of offences punishable on summary conviction under the Crimes Act 1900, any two Justices,(b) in all other cases, any Justice,may, upon proof of the due service of the summons upon such person at a reasonable time before the time appointed for his or her appearance and(i) where such person is the defendant:
upon the matter of the information or complaint being substantiated upon oath,(ii) (Repealed)issue his or her warrant for the apprehension of such person.(1A) 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, a 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.(2) The Justice or Justices before whom a person is brought after having been apprehended under a warrant referred to in subsection (1) or (1A):(a) subject to the Bail Act 1978, must order that a warrant be issued for the committal of the person to a correctional centre or other place of security, and(b) must order the person to be brought before the Justice or Justices at such time and place as is specified in the order, and(c) must give due notice to the informant or complainant of the time and place so specified.(3) A warrant under this section may be issued by any Justice.(4) (Repealed)
Subdivision 6A Service of briefs of evidence
(1) In this Subdivision:brief of evidence, in relation to a prescribed summary offence, means documents regarding the evidence that the prosecution intends to adduce in order to prove the commission of the offence and includes:
(a) written statements taken from the persons the prosecution intends to call to give evidence in proceedings for the offence, and(b) any document, or other thing, identified in such a written statement as a proposed exhibit.penalty notice means:
(a) a penalty notice within the meaning of Part 4B, or(b) after the commencement of Part 3 of the Fines Act 1996—a penalty notice within the meaning of that Act.prescribed summary offence means a summary offence other than:
(a) an offence for which a penalty notice may be issued, or(b) an offence prescribed by the regulations for the purposes of this paragraph.prosecuting authority means:
(a) the Director of Public Prosecutions, or(b) a police officer, or(c) a person prescribed by the regulations for the purposes of this definition,who is responsible for the conduct of a prosecution.(2) In this Subdivision, a reference to the defendant includes a reference to the barrister or solicitor of the defendant.
66B Brief of evidence to be served on defendant unless otherwise ordered
(1) If a defendant pleads not guilty to a prescribed summary offence being prosecuted by a prosecuting authority, the prosecuting authority must, unless the Justice or Justices otherwise order in accordance with section 66E, serve or cause to be served on the defendant a copy of the brief of evidence relating to the offence.(2) The copy of the brief of evidence is to be served at least 14 days before the hearing of the evidence for the prosecution unless the defendant consents to a shorter period or, in the opinion of the Justice or Justices, the circumstances of the case otherwise require.
(1) Despite section 66B, the prosecuting authority 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 prosecuting authority is:(a) to serve on the defendant a notice specifying a reasonable time and place at which the proposed exhibit may be inspected, and(b) to allow the defendant a reasonable opportunity to inspect each proposed exhibit referred to in the notice.
66CA Recordings of interviews with children
(1) If the prosecution intends to call a child to give evidence in proceedings for a prescribed summary offence, the brief of evidence relating to the offence may include a transcript of a recording made by an investigating official of an interview with the child, during which the child was questioned by the investigating official in connection with the investigation of the commission or possible commission of the offence (as referred to in the Evidence (Children) Act 1997).(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 defendant in accordance with section 66B.(3) A brief of evidence that includes a transcript of a recording of an interview with a child is not required to also include a written statement from the child concerned.(4) The transcript of the recording is taken, for the purposes of this Subdivision, to be a written statement taken from the child. 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 Subdivision requires the prosecuting authority to serve on the defendant a copy of the actual recording made by an investigating official of an interview with the child.(6) This section does not affect section 12 (2) of the Evidence (Children) Act 1997.(7) In this section:investigating official has the same meaning as in the Evidence (Children) Act 1997.
Note. The Evidence (Children) Act 1997 allows children to give evidence of a previous representation in the form of a recording made by an investigating official of an interview with the child. Section 12 (2) of that Act provides that such evidence is not to be admitted unless the accused person and his or her lawyer have been given a reasonable opportunity to listen to or view the recording.
66D Form of copy of brief of evidence
The copy of the brief of evidence is to comply with any requirement applicable to it prescribed by the regulations made for the purposes of this Subdivision.
66E Discretion to order that copy of brief of evidence need not be served
(1) The Justice or Justices may order that all or part of the copy of the brief of evidence need not be served if the Justice or Justices are satisfied:(a) that there are compelling reasons for not requiring service, or(b) that it could not reasonably be served on the defendant.(2) The Justice or Justices may make an order under this section on their own initiative or on the application of any party.(3) An order may be made subject to such conditions (if any) as the Justice or Justices think fit.
66F Evidence not to be admitted
(1) The Justice or Justices are to refuse to admit evidence sought to be adduced by the prosecuting authority in respect of the prescribed summary offence if, in relation to that evidence, this Subdivision, or any regulations made for the purposes of this Subdivision, have not been complied with by the prosecuting authority.(2) The Justice or Justices may, and on the application of or with the consent of the defendant must, dispense with the requirements of subsection (1) on such terms and conditions as appear just and reasonable.(3) Subsection (2) does not apply to any requirement referred to in subsection (1) that is declared by the regulations to be a requirement that may not be dispensed with under subsection (2).
Without limiting the power of a Justice or Justices to adjourn proceedings, the Justice or Justices are to grant such adjournments as appear to be just and reasonable if the copy of the brief of evidence is not served in accordance with this Subdivision, and may extend accordingly the time for hearing the matter.
66H Indictable offences dealt with summarily
(1) This Subdivision, and any regulations made for the purposes of this Subdivision, apply in respect of an indictable offence that is being dealt with summarily under Division 3 of Part 2 of the Criminal Procedure Act 1986 or Part 3 of the Children (Criminal Proceedings) Act 1987. For that purpose, a reference in this Subdivision to a prescribed summary offence includes a reference to such an indictable offence.(2) The provisions of this Subdivision requiring the service of a copy of a brief of evidence relating to such an indictable offence are taken to be satisfied in respect of any evidence the prosecution intends to adduce in the summary proceedings if:(a) a copy of a brief of evidence has been served in accordance with section 25 of the Criminal Procedure Act 1986 in respect of that evidence, or(b) a copy of a written statement has been served, in connection with committal proceedings, in accordance with Subdivision 7A of Division 1 of Part 4 of this Act in respect of that evidence.
Subdivision 7 Proceedings on information or complaint
67 Place of hearing to be an open court
Subject to any Act or other law, the room or place in which a Justice or Justices sits or sit to hear and determine any information or a complaint shall be deemed to be an open and public court, to which all persons may have access so far as that room or place can conveniently contain them.
68 When hearing may be adjourned, and how time and place of adjourned hearing appointed and notified
The Justice or Justices may adjourn the hearing of any information or complaint:(a) in any case, in the Justice’s or Justices’ discretion, whether before or during the hearing.Such adjournment shall be to a time and place to be appointed by such Justice or Justices who shall state the same in the presence of the defendant, party or parties.
(b) in any case where the defendant has failed to appear in obedience to a summons or attendance notice and a warrant has been issued for his or her apprehension.Such adjournment shall be to a time and place to be appointed by the Justice or Justices before whom the defendant is brought when he or she is apprehended. Notice of the time and place so appointed shall be given by such Justice or Justices to the informant or complainant.
(c) in any case where the informant or complainant has failed to appear by himself or herself or by his or her counsel or attorney at the time and place appointed in the summons or of which he or she has had notice as hereinbefore provided and the defendant has appeared or has been brought up on any warrant.Such adjournment:
(i) shall be to a time and place to be appointed by such Justice or Justices who shall state the same in the presence of the defendant, party or parties, and(ii) may be upon such terms as to the Justice or Justices seem fit.(d) to enable the matter of the information or complaint to be the subject of a mediation session under the Community Justice Centres Act 1983.
69 How defendant to be dealt with during adjournment
(1) Subject to the Bail Act 1978, the Justice or Justices by whom a hearing is adjourned under section 65 or 68:(a) in the case of any defendant, whether or not an accused person, may order that a warrant be issued for the committal of the defendant to a correctional centre or other place of security, or(b) in the case of a defendant who is not an accused person, may allow the defendant to be at large,for the period of the adjournment.(2) A warrant under this section may be issued by any Justice.(3) At any time during the period of adjournment, any Justice may order that a defendant who has been committed to a correctional centre or other place of security be brought before that or any other Justice or Justices.(4) The person having the custody of a defendant in respect of whom such an order is made must comply with the requirements of the order.(5) The Bail Act 1978 applies to the defendant (not being an accused person) in the same way as it applies to an accused person and, for that purpose, bail may be granted to the defendant with respect to the period of the adjournment.
(1) Every witness shall have the usual oath administered to him or her before he or she is examined.(2) The prosecutor or complainant may himself or herself or by his or her counsel or attorney, conduct his or her case, and may examine and cross-examine the witnesses giving evidence for or against him or her, and may, if the defendant gives any evidence or examines any witness as to any matter other than as to his or her general character, call and examine witnesses in reply.(3) The defendant may himself or herself, or by his or her counsel or attorney, make full answer and defence, and may give evidence himself or herself, and may examine and cross-examine the witnesses giving evidence for or against him or her respectively.(4) The deposition of every witness shall be recorded by means of writing, shorthand, stenotype machine, sound-recording apparatus or such other means as may be prescribed.(5) Where, for the purposes of subsection (4), the deposition of a witness is recorded by means of writing, it shall be read over either to or by the witness, as the Justice or Justices may direct, and be signed by the witness and by the Justice or Justices.
73 Person interested in conviction or order may obtain copies thereof and of the information, depositions etc
(1) Every person interested in any summary conviction or order made by any Justice or Justices shall, on showing sufficient cause to the clerk of the Justice or Justices, be entitled to demand and have copies of the information or of the complaint and of the depositions or evidence, and of such conviction or order.(2) Subject to this section, the copies shall be supplied by the clerk on payment of a fee calculated at the rate prescribed by the regulations.
74 Procedure where informant or complainant does not, but defendant does appear
If, upon the day and at the time and place appointed by the summons, or by the order of the Justice or Justices before whom the defendant was brought upon apprehension under a warrant, the informant or complainant does not appear in person or by his or her counsel or attorney, but the defendant attends voluntarily in obedience to such summons, or is brought up on the order aforesaid, and the informant or complainant has received notice of such order, the Justice or Justices shall dismiss the information or complaint unless for some reason the Justice or Justices think proper to adjourn the hearing as hereinbefore provided.
(1) A defendant who is issued a summons or an attendance notice may lodge with the clerk of a Local Court a notice in writing that the defendant will plead guilty or not guilty to the offence or offences the subject of the information concerned.(2) The notice is to be in the prescribed form and, in the case of a guilty plea, may be accompanied by additional written material containing matters in mitigation of the offence.(3) If a defendant lodges a notice with the clerk of the Local Court under this section not later than 5 days before the day appointed by the summons or attendance notice for the hearing of the matter (the first return date), the defendant is not required to attend the court on the first return date.(4) On the first return date of a matter in which a plea of not guilty has been notified in accordance with this section, the Magistrate or an authorised justice must appoint a day and a time for the matter to be heard. The clerk of the Local Court must notify the defendant in writing, at the defendant’s last known address, of the day and time appointed by the Magistrate or authorised justice.(5) On the first return date of a matter in which a plea of guilty has been notified under this section, the Magistrate may:(a) proceed to deal with the matter under sections 75A–75F, or(b) adjourn the matter to another day for mention or hearing if of the opinion that the plea of guilty should not be accepted or that the matter should not proceed without the defendant.(6) If a defendant fails to appear on the day and at the time appointed for a hearing under subsection (4) or (5), the Magistrate may proceed to deal with the matter under sections 75A–75F.(7) This section does not apply to a defendant who has been granted bail or who is in custody.(8) In this section:authorised justice means a Justice employed in the Attorney General’s Department.
75A Scheme for ex parte proceedings where defendant fails to attend
(1) Sections 75B–75F constitute a scheme for the determination of matters in the absence of a defendant where the defendant fails to appear on a day, and at the time or place, specified by a summons or attendance notice.(2) The provisions of this section and sections 75B–75F are supplemental to, and do not derogate from, the provisions of any Act that relate to proceedings that may be taken in respect of offences punishable summarily before a Justice or Justices.
75B Procedure if defendant does not appear
(1) If a defendant who has been served with a summons or attendance notice does not appear on the day and at the time and place specified by the summons or attendance notice and has not notified a plea of not guilty under section 75, the Magistrate may proceed to hear and determine the matter in accordance with this section and sections 75C–75F.(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 an information in relation to the alleged offence, and(b) the defendant has been given notice of the hearing of the matter of the information, and(c) the defendant does not appear on the day and at the time and place specified by the information,the Magistrate may proceed to hear and determine the matter in accordance with this section and sections 75C–75F.(3) The Magistrate may not proceed to hear and determine a matter under this section unless satisfied that the defendant had reasonable notice of the date, time and place of the hearing.(4) If a defendant is charged with 2 or more offences for which the hearing or hearings have been listed on the same date, time and place, the Magistrate may proceed to hear and determine some or all of the matters together.(5) A reference in this section to a time and place includes, if the hearing of the matter has been adjourned, a reference to the time and place to which the hearing has been adjourned.
75C Adjournment of proceedings where defendant fails to appear
(1) Instead of hearing and determining a matter without the defendant, the Magistrate may, if of the opinion that the matter should not proceed on the specified day or without the defendant, adjourn the matter to another day for mention or for hearing.(2) The Magistrate may, on adjourning the hearing, on proof of the due service of the summons or attendance notice, issue or make an order authorising the issue of a warrant for the apprehension of the defendant.(3) If a warrant is issued for the apprehension of the defendant, the Magistrate or authorised justice before whom the defendant is brought after apprehension may specify the date, time and place to which the proceedings are adjourned.(4) Section 69 applies to a person apprehended and brought before a Magistrate or authorised justice after proceedings are adjourned under this section.
75D Material to be considered in ex parte proceedings
(1) A Magistrate who proceeds to hear and determine a matter without the defendant may determine the matter on the basis of the information without hearing the informant’s witnesses or any other additional evidence of the informant, if of the opinion that the matters set out in the information are sufficient to establish the offence.(2) Before determining the matter, the Magistrate must consider any written material:(a) given to the Magistrate by the informant, and(b) lodged by the defendant in accordance with section 75.(3) The Magistrate may require the informant to provide additional evidence if of the opinion that the matters set out in the information are not sufficient to establish the offence.(4) The additional evidence is not admissible unless:(a) it is in the form of written statements that comply with section 48C, and(b) a copy of any such statement has been given to the defendant a reasonable time before consideration of the additional evidence by the Magistrate.(5) The Magistrate must reject a written statement, or any part of a written statement, tendered in proceedings if the statement or part is inadmissible because of this section.(6) Despite subsection (4), the Magistrate may require evidence to be given orally if it is not practicable to comply with that subsection or if the Magistrate thinks it necessary in the particular case.
75E Determination of ex parte proceedings
(1) A Magistrate who proceeds to hear and determine a matter without the defendant may determine the matter by convicting the defendant, by making an order as to the defendant or by dismissing the information.(2), (3) (Repealed)(4) The Magistrate may adjourn the proceedings to enable the defendant to appear or be brought before the Magistrate for sentencing.
75F 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 under sections 75B–75E as if the defendant had been charged before the court with the offence referred to in the information to which the proceedings relate.
76 Procedure where either party does not appear at adjourned hearing
(1) If, upon the day and at the time and place to which the hearing or further hearing of the information or complaint has been adjourned, either or both of the parties does, or do, not appear in person or by his, her or their counsel or attorney, the Justice or Justices, then and there present, may proceed with the hearing as if such party or parties were present, and in cases where it is the informant or complainant who does not so appear may dismiss the information or complaint with or without costs.(2) Where a defendant charged with two or more offences (whether of a like or different nature), the hearings or further hearings of which have been adjourned to the same time and place, does not appear at the time and place, the Justice or Justices may proceed to hear and determine all or any of the charges together and adjudicate on the charges in the absence of the defendant.
77 Where both parties appear Justices to hear and determine the case
If, upon the day and at the time and place appointed for hearing or to which the hearing or further hearing has been adjourned, both parties appear in person or by their respective counsel or attorneys the Justice or Justices shall proceed to hear the case.
(1) Where the defendant appears at the hearing and has been provided with a written copy of any charges against the defendant, the substance of the information or complaint shall be stated to the defendant, and he or she shall be asked if he or she has any cause to show why he or she should not be convicted or why an order should not be made against the defendant, as the case may be.(2) If he or she thereupon admits the truth of the information or complaint and shows no sufficient cause why he or she should not be convicted or why an order should not be made against him or her then the Justice or Justices present at the hearing shall convict him or her or make an order against him or her accordingly.(3) If he or she does not admit the truth of the information or complaint then the said Justice or Justices shall proceed to hear the prosecutor or complainant and the witnesses whom he or she examines and such other evidence as he or she adduces in support of the information or complaint and to hear the defendant and the witnesses whom he or she examines and such other evidence as he or she adduces in his or her defence.
78A Provision for hearing cases together
(1) Where the defendant is charged with 2 or more offences, the Justice or Justices have jurisdiction to hear and determine the charges together if:(a) the defendant and the informant or complainant consent,(b) the offences arise out of the same set of circumstances, or(c) the offences form or are part of a series of offences of the same or a similar character.(2) Where 2 or more defendants are separately charged with offences, the Justice or Justices have jurisdiction to hear and determine the charges together, if:(a) the defendants and the informants or complainants consent,(b) the offences arise out of the same set of circumstances, or(c) the offences form or are part of a series of offences of the same or a similar character.(3) Any such charges shall not be heard and determined together if the Justice or Justices are of the opinion that the charges ought to be heard and determined separately in the interests of justice.
The practice upon the hearing of any information or complaint shall, in respect of the examination and cross-examination of witnesses and the right of addressing the Justice or Justices upon the case in reply or otherwise, be as nearly as possible in accordance with that of the Supreme Court upon a trial on indictment.
80 After hearing case Justices to convict or make an order or dismiss case
After hearing what each party has to say and the witnesses and the evidence adduced, the said Justice or Justices shall consider and determine the whole matter, and convict or make an order upon the defendant or dismiss the information or complaint, as the case may require.
80AB Restriction on imposing sentences of imprisonment
(1) A Justice or Justices shall not sentence a person to full-time imprisonment unless satisfied, having considered all possible alternatives, that no other course is appropriate.(2) A Justice or Justices shall:(a) when sentencing a person to imprisonment—state that, before imposing the sentence, all possible alternatives were considered, and(b) if the regulations so provide—record the statement as prescribed by the regulations.(3) A sentence is not invalidated by a failure to comply with this section.
(1) When convicting or making an order against a defendant, the Justice or Justices may order:(a) that the defendant pay to the prosecutor or complainant such professional costs as the Justice or Justices consider to be just and reasonable, and(b) that the defendant:(i) if the prosecutor or complainant has paid court costs—pay those costs to the Clerk of the Local Court for payment to the prosecutor or complainant, or(ii) in any other case—pay court costs to the Clerk of the Local Court.(1A) When making an order dismissing the information, complaint or charge against a defendant, the Justice or Justices may order that the prosecutor or complainant pay to the defendant such professional costs as the Justice or Justices consider to be just and reasonable.(1B) The amount that may be awarded under subsection (1) (b) for court costs is:(a) the amount specified in item 1 of Schedule 1 to the Justices (General) Regulation 1993, or(b) such other amount as the Justice or Justices consider to be just and reasonable in the circumstances of the case.(2) The amount so allowed for costs shall in all cases be specified in the conviction or order.(3)(a) For the purpose of the exercise of the power conferred by subsection (1), any order made under section 10 of the Crimes (Sentencing Procedure) Act 1999 shall have the like effect as a conviction.(b) The amount allowed for costs under subsection (1) as extended by this subsection shall be specified in the order made under section 10 of the Crimes (Sentencing Procedure) Act 1999 and that order shall be deemed to be an order whereby a sum of money is adjudged to be paid within the meaning of this Act.(4) Professional costs are not to be awarded in favour of a defendant unless the Justice or Justices is or are satisfied as to any 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 prosecution in an improper manner,(c) that the prosecution 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 defendant 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 prosecution, it is just and reasonable to award professional costs.(5) Subsection (4) does not apply to the awarding of professional costs against an informant or complainant acting in a private capacity.(6) For the purposes of subsection (5), an officer of the Royal Society for the Prevention of Cruelty to Animals, or of any other 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 informant or complainant in any proceedings under that Act.(7) In this section:professional costs means costs (other than court costs) relating to professional expenses and disbursements (including witnesses’ expenses) in respect of proceedings before a Justice or Justices.
84A Traffic offences committed by children
(1) In this section:child, in relation to a traffic offence, includes a person who was under the age of 18 years when the person committed the offence and was under the age of 21 years when the person was charged before a Justice or Justices with the offence.
traffic offence has the same meaning as it has in the Children (Criminal Proceedings) Act 1987.
(2) A Justice or Justices may, in respect of a child found guilty of a traffic offence, deal with the child in accordance with Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987.(3) For the purpose of dealing with a person in accordance with Division 4 of Part 3 of the Children (Criminal Proceedings) Act 1987, a Justice or Justices shall have and may exercise the functions of the Children’s Court under that Division in the same way as if:(a) the Justice or Justices were the Children’s Court, and(b) the offence were an offence to which that Division applies.(4) A Justice or Justices may not impose a sentence of imprisonment on a child found guilty of a traffic offence.
85 Minute or memorandum of conviction or order to be made at the same time
(1) If the Justice or Justices convict or make an order against the defendant a minute or memorandum of the conviction or order shall be made at the same time.No fee shall be paid for any such minute or memorandum.
(2)–(4) (Repealed)
86 Order and certificate of dismissal
(1) If the Justice or Justices dismiss an information or complaint the Justice or Justices may, on being required to do so, and if they think fit, draw up an order of dismissal and give the defendant a certificate thereof.(2) A certificate of dismissal shall, upon production and without further proof, be a bar to any subsequent information or complaint for the same matter against the same person.
86A–97 (Repealed)
98 One Justice may receive information etc and issue summonses and warrants
(1) One Justice, who is not for the time being constituting a Local Court, may receive an information or complaint and grant a summons or warrant thereon, and may issue his or her subpoena or warrant to compel the attendance of any witness, and do all other necessary acts and matters preliminary to the hearing, notwithstanding that by this Act or by the statute dealing with the matter, the information or complaint must be heard and determined by two or more Justices.(2) One Justice may after any such case has been heard and determined issue a warrant of commitment thereon or any other process to enforce an adjudication.(3) The Justice who so acts as in the two preceding subsections mentioned need not be one of the Justices by and before whom the case is heard and determined.
100 Aiders and abettors punishable as principals
(1) Every person who aids, abets, counsels, or procures the commission of any offence, now or hereafter made punishable on summary conviction, may be proceeded against and convicted, together with or before or after the conviction of the principal offender.(2) On conviction such person shall be liable to the penalty and punishment to which the principal offender is liable.