Part 11 Procedure, evidence, verdict, &c
As to indictment—form, venue, amendments, &c
359 Meaning of “Statute” and “Act” in indictments etc
In all indictments and informations, and all criminal pleadings and proceedings, the word Statute, and the word Act, used to indicate an enactment shall each include an Imperial Act as well as an Act.
360 What defects shall not vitiate an indictment
No indictment shall be held bad or insufficient for want of an averment of any matter unnecessary to be proved, or necessarily implied, nor for the omission of the words “as appears by the record”, or “with force and arms”, or “against the peace”, nor for the insertion or omission of the words “against the form of the statute”, nor for designating any person by a name of office, or other descriptive appellation, instead of his proper name, nor for omitting to state the time at which the offence was committed, nor for stating the time wrongly, in any case where time is not of the essence of the offence, nor for stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or a day that never happened, nor for want of a proper or perfect venue, or a proper or formal conclusion, nor for the omission or improper insertion of the word “feloniously”, nor for want of or imperfection in any addition of the accused, nor for want of any statement of the value or price of any matter or thing, or the amount of damage, or injury, in any case where such value, or price, or amount, is not of the essence of the offence.
360A Indictment etc of corporations
(1) Every provision of an Act relating to offences punishable upon indictment or upon summary conviction may, unless a contrary intention appears, be construed to apply to bodies corporate as well as to individuals.(2) Where a corporation whether alone or jointly with some other person is charged before justices with an indictable offence, the justices may, if they are of opinion that the evidence is sufficient to put the accused corporation upon trial, make an order authorising an indictment to be filed for the offence named in the order or for such other offence as the Attorney-General or any other person authorised by law to prosecute indictable offences shall deem proper, and such order shall be deemed to be a committal for trial:Provided that:
(a) where the offence is an offence which in the case of an adult may be dealt with summarily and the corporation does not appear by a representative or, if it does so appear, consents that the offence should be so dealt with, the offence may be dealt with summarily, and(b) if the corporation appears by a representative any answer to the question to be put under section 41 (4) of the Justices Act 1902 may be made on behalf of the corporation by that representative, but if the corporation does not so appear it shall not be necessary to put the question.(3) Where a bill is found against a corporation the corporation may on arraignment enter in writing by its representative a plea of guilty or not guilty. If no such plea is entered the court shall enter a plea of not guilty and the trial shall proceed as though the corporation had pleaded not guilty.(4) A representative need not be appointed under the seal of the corporation, and a written statement purporting to be signed by any person being one of the persons having the management of the affairs of the corporation to the effect that the person named has been appointed as the representative of the corporation shall be admissible as prima facie evidence that the person has been so appointed.(5) Any summons or other document may be served upon the corporation by leaving it at or sending it by post to the registered office of the corporation or to any place at which it trades or carries on business.(6) Where the penalty in respect of any offence is a term of imprisonment only, the court before which the offence is tried may, if it thinks fit, in the case of a body corporate, impose a pecuniary penalty not exceeding:(a) where the term of imprisonment does not exceed six months—two hundred dollars,(b) where the term of imprisonment exceeds six months but does not exceed one year—four hundred dollars,(c) where the term of imprisonment exceeds one year but does not exceed two years—one thousand dollars,(d) where the term of imprisonment exceeds two years—two thousand dollars.In this subsection imprisonment includes penal servitude.
(7) For the avoidance of doubt it is hereby declared that for the purposes of this section indictable offence means an offence punishable on indictment at common law or under any Act or Imperial Act.
(1) New South Wales shall be a sufficient venue for all places, whether the indictment is in the Supreme Court or any other Court having criminal jurisdiction:Provided that some district or place, within, or at, or near which the offence is charged to have been committed, shall be mentioned in the body of the indictment.
(2) Every such district or place shall be deemed to be in New South Wales, and within the jurisdiction of the Court unless the contrary is shown.
362 Formal objections when to be taken
Every objection to an indictment, for any formal defect apparent on the face thereof, shall be taken by demurrer or motion to quash such indictment before the jury are sworn, and every Court before which any such objection is taken may thereupon cause the indictment to be forthwith amended, and afterwards the trial shall proceed as if no such defect had appeared.
363 Judgment on demurrer to indictment
In all cases of felony and misdemeanour alike, the judgment against the accused on demurrer shall be that he “answer over” to the charge.
No traverse shall in any case be allowed, or trial postponed, or time to plead to the indictment given, unless the Court shall so order:Provided that where the Judge is of opinion that the accused ought to be allowed time, either to prepare for his defence, or otherwise, such Judge shall postpone the trial upon such terms as to him seems meet, and may respite the recognizances of the prosecutor and witnesses accordingly.
365 Orders for amendment of indictment, separate trial and postponement of trial
(1) Where, before trial, or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice.(2) Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment.(3) Where, before trial, or at any stage of a trial, the court is of opinion that the postponement of the trial of a person accused is expedient as a consequence of the exercise of any power of the court under this Act to amend an indictment or to order a separate trial of a count, the court shall make such order as appears necessary.(4) Where an order of the court is made under this section for a separate trial, or for the postponement of a trial:(a) if such an order is made during a trial, the court may order that the jury are to be discharged from giving a verdict on the count or counts the trial of which is postponed, or on the indictment as the case may be, and(b) the procedure on the separate trial of a count and the procedure on the postponed trial shall be the same in all respects (if the jury has been discharged), as if the trial had not commenced, and(c) the court may, subject to the Bail Act 1978, commit the accused person to prison or make such order as to the enlargement of recognizances and otherwise as the court thinks fit.(5) Any power of the court under this section shall be in addition to and not in derogation of any other power of the court for the same or similar purposes.
Where any indictment is amended, a note of the order for amendment shall be endorsed on the indictment, and the indictment in its amended form shall be treated as the indictment for the purposes of the trial, and for the purposes of all proceedings in connection therewith or consequent thereon.
367 Verdict and judgment valid after amendment
Every verdict, and judgment, given after the making of any amendment under this Act, shall be of the same force and effect, as if the indictment had originally been in the words, and form, in which it is after such amendment.
368 Form of record after amendment
If it is necessary at any time to draw up a formal record, in any case where an amendment has been made, such record may be drawn up in the words and form of the amended indictment, without noticing the fact of amendment.
369 Respiting recognizances on postponement
In all cases where the trial is postponed the Court may respite the recognizance of the prosecutor and witnesses requiring them severally to appear and prosecute, or give evidence, at the time and place to which the trial is so postponed.
370 Separate offences when can be joined
In every case counts may be inserted in the same indictment, against the same person, for any number of distinct offences of the same kind, not exceeding three, committed against the same person:Provided that no more than six months have elapsed between the first and last of such offences:
Provided further that nothing in this section shall affect the right of the Crown to insert alternative counts in any indictment describing the offence in different terms.
371 Accessories may be charged together in one indictment
In every case of felony, at Common Law or by Statute, any number of accessories thereto, whether before or after the fact, may be charged with substantive felonies in the same indictment, and be tried together, although the principal felon is not included in such indictment, or is not in custody or amenable to justice.
372 Indictment charging previous offence also
In an indictment for an offence committed after a previous conviction for an offence, whether indictable or punishable on summary conviction, it shall be sufficient, after charging the subsequent offence, to state that the accused was theretofore at a certain time and place convicted of an indictable offence, or an offence punishable on summary conviction, as the case may be, without particularly describing such previous offence.
373 Description of partners etc
Whenever, in any indictment, it is necessary 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.This provision shall extend to all joint stock companies, executors, administrators, and trustees.
374 Description of written instruments
In every case where a written, or printed, instrument, or instrument partly written and partly printed, is the subject of an indictment, or it is necessary to make an averment in an indictment respecting such instrument, it shall be sufficient to describe such instrument by any name or designation by which the same is usually known, or by the purport thereof, without setting out any copy thereof, or otherwise describing the same, and without stating the value thereof.
375 General averment of intent to defraud or injure
(1) In every case where it is necessary to allege an intent to defraud, or injure, it shall be sufficient to allege that the accused did the act with such intent, without alleging an intent to defraud, or injure, any particular person.(2) In an indictment for doing an act fraudulently, or for a fraudulent purpose, it shall not be necessary to state what was the fraudulent intent, or purpose.
378 Form of indictment against accessories to murder
In an indictment against an accessory to murder, or manslaughter, it shall be sufficient to charge the felony of the principal in the manner hereinbefore specified, and then to charge the accused as an accessory in the manner heretofore accustomed.
In an indictment for an indecent assault it shall be sufficient to state that the accused did, on the day and at the place named, commit an indecent assault on the person alleged to have been assaulted, without stating the mode of such assault.
382 Where not necessary to lay property in any person
In an indictment in respect of any of the matters mentioned in the Fourth Schedule, it shall not be necessary to allege that the instrument, document, building, chattel, or other matter, or thing, in respect of which the offence was committed, is the property of any person.
383 Property of partners or joint owners
In an indictment wherein it is necessary to state the ownership of property belonging to more than one person, whether as partners in trade, joint-tenants, parceners, or tenants in common, it shall be sufficient to name one of such persons, and to allege such property to belong to the person so named, and another, or others as the case may be.This provision shall extend to all joint stock companies, executors, administrators, and trustees.
384 Stealing and receiving in one indictment
In an indictment containing a charge of feloniously stealing property, a count may be added, against the same person, for feloniously receiving the same, or any part thereof, knowing the same to have been stolen, and the prosecutor shall not be put to his election as to such charges.
385 Separate receivers may be charged in one indictment
Whenever any property has been stolen, taken, embezzled, obtained, or fraudulently applied, or disposed of, in such a manner as to amount to felony at Common Law or by Statute, any number of receivers at different times of such property, or of parts thereof, may be charged with substantive felonies in the same indictment, and be tried together, although the principal felon is not included in such indictment, or is not in custody or amenable to justice.
386 Allegations in indictment as to money or securities stolen
In an indictment for stealing, taking, receiving, or embezzling, or for the misappropriation, or fraudulent application, or disposal, of money, or any valuable security, or for the obtaining of money or any valuable security by any threat, or false pretence, or partly by a false pretence and partly by a wilfully false promise, it shall be sufficient to describe the property as a certain amount of money, or as a certain valuable security, without specifying any particular kind of money or security, which description shall be sustained by proof of the taking, receiving, embezzling, appropriating, disposal, or obtaining, of any money or valuable security, although some part of the value thereof was agreed to be, or was in fact, returned, and although, as it respects money, the particular kind of money is not proved, or provable.
387 Indictment for stealing by tenants
In every case of stealing any chattel let to be used in, or with, any house, or lodging, an indictment in the common form as for larceny, and in every case of stealing any fixture so let as aforesaid, an indictment in the same form as if the offender were not a tenant, or lodger, shall be sufficient, and in either case the property may be laid in the owner, or the person letting to hire.
388 Indictment for stealing deeds
In an indictment for stealing, embezzling, destroying, cancelling, obliterating, or concealing, any document of title to land, or any part thereof, it shall be sufficient to allege such document to contain evidence of the title to such land, and to mention the person, or one of the persons, having an interest in such land, or some part thereof.
389 Indictment for larceny by public servant, property to be laid in the Queen
In an indictment for larceny, or embezzlement, as a public servant, the property may be described as the property of Her Majesty, from whom it shall be deemed to have been stolen.
390 Description in indictment for engraving etc
In an indictment for engraving, or making the whole, or any part, of any instrument, or thing, or using, or having possession of any plate, or material upon which the whole, or any part, of any instrument or thing, is engraved, or made, or for having possession of paper upon which the whole, or any part, of any instrument, or thing, is made or printed, it shall be sufficient to describe such instrument, or thing, by any name or designation by which it is usually known, without setting out any copy of the same, or any part thereof.
391 Indictment for sale etc of counterfeit coin
In an indictment, under this Act, respecting the unlawful buying, or selling, of counterfeit coin, it shall not be necessary to allege at what rate, or for what price, the same was bought, sold, received, or paid, or put off, or offered so to be.
In an indictment for perjury it shall be sufficient to allege that the accused on a certain day and at a certain place, before a person named, falsely swore, or falsely declared, or affirmed, the matter charged as false, stating the substance only of such matter, and averring that the same was so sworn, declared or affirmed, on an occasion when the truth of such matter was material, without specifying the occasion, or showing how the matter was material, or what was the cause or trial or inquiry, if any, pending, or the judicial, or official character of the person administering the oath, or taking the declaration, or affirmation, charged as false, and it shall be sufficient to state generally that the matter charged as having been falsely sworn was false in fact without negativing each assignment specifically.
In an indictment for conspiracy, it shall not be necessary to state any overt act, and each defendant in any case of conspiracy, whether two or more defendants are included in the same indictment or not, may be charged separately, in any count, as having conspired with divers persons, of whom it shall be sufficient to name one only, or as having conspired with one other named person only, and may be convicted on such count upon proof of his having unlawfully conspired for the purpose therein alleged with any one such person:Provided always, that no more than three counts against the same defendant shall be inserted in any such indictment, and that the Court may, in any case before plea pleaded, order such particulars to be given, as to such Court shall seem meet, and that where conspiracies substantially different are charged in the same indictment, the prosecutor may be put to his election as to the one on which he will proceed.
394 Arraignment etc on charge of previous conviction
(1) No person shall be arraigned, in respect of any previous conviction charged in any indictment, unless he is convicted of the subsequent offence charged therein.(2) Upon such conviction he shall forthwith be arraigned, and the jury shall be charged as to such previous conviction, or convictions, and the trial shall proceed in respect thereof.
Where a prisoner is arraigned on an indictment for any offence and can lawfully be convicted on such indictment of some other offence not charged in such indictment, he may plead not guilty of the offence charged in the indictment, but guilty of such other offence, and the Crown may elect to accept such plea of guilty or may require the trial to proceed upon the charge upon which the prisoner is arraigned.
If any person arraigned on an indictment pleads thereto “not guilty”, he shall, without further form, be deemed to have put himself upon the country for trial, and the Court shall, in the usual manner, order a jury for his trial accordingly.
If any person being so arraigned stands mute, or will not answer directly to the indictment, the Court may order a plea of “not guilty” to be entered on behalf of such person, and the plea so entered shall have the same effect as if he had actually pleaded the same.
399 Plea of autrefois convict etc
In any plea of autrefois convict, or of autrefois acquit, it shall be sufficient for the accused to allege that he has been lawfully convicted, or acquitted, as the case may be, of the offence charged in the indictment, without specifying the time or place of such previous conviction or acquittal.
400 Practice as to entering the dock
In every case, whether of felony or misdemeanour, the presiding Judge shall have power to order the accused to enter the dock or usual place of arraignment, or to allow him to remain on the floor of the Court, and in either case to sit down, as such Judge shall see fit.
402 Accused may be defended by counsel
Every accused person shall, in all Courts, be admitted to make full answer and defence by counsel, and in every case may reserve his address until the close of the evidence for the defence, and in the latter case, all evidence in reply for the Crown and any address by the prosecutor shall be given before such address for the defence.
403 Right to inspect depositions on trial
Every accused person shall be entitled on his trial to inspect, without fee or reward, all depositions taken against him and returned into, or which shall be in, the Court before which he is under trial.
404 Admission by accused before or on trial
Every accused person before or on his trial may, if so advised by counsel, make any admissions as to matters of fact, whatever the crime charged, or give any consent which might lawfully be given in a civil case.
405 Statement and address to jury by accused
(1) Every accused person on his trial, whether defended by counsel or not, may make any statement at the close of the case for the prosecution, and before calling any witness in his defence, without being liable to examination thereupon by counsel for the Crown or by the Court and, after the prosecutor has addressed the jury or has declined to address the jury, may, personally or by his counsel, address the jury.(2) Where the accused intends to give evidence or to call any witness or witnesses in support of the defence the accused or his counsel shall be entitled to open the case for the defence before calling his evidence.(3) Where, in the closing address by or on behalf of the accused, relevant facts are asserted which are not supported by any evidence or unsworn statement that is before the jury, the Court may grant leave to counsel for the Crown to make a supplementary address to the jury replying to any such assertion.
(1) On a trial on indictment the defendant shall not without the leave of the Court adduce evidence in support of an alibi or assert in any statement made by him under section 405 (1) that he has an alibi unless, before the end of the prescribed period, he gives notice of particulars of the alibi.(2) Without prejudice to subsection (1), on a trial on indictment the defendant shall not without the leave of the Court call any other person to give evidence in support of an alibi unless:(a) the notice under that subsection includes the name and address of the person, or, if the name or address is not known to the defendant at the time he gives the notice, any information in his possession which might be of material assistance in finding the person,(b) if the name or the address is not included in the notice, the Court is satisfied that the defendant before giving the notice took, and thereafter continued to take, all reasonable steps to secure that the name or the address would be ascertained,(c) if the name or the address is not included in the notice, but the defendant subsequently discovers the name or address or receives other information which might be of material assistance in finding the person, he forthwith gives notice of the name, address or other information, as the case may be, and(d) if the defendant is notified by or on behalf of the Crown that the person has not been traced by the name or at the address given by the defendant, he forthwith gives notice of any information which might be of material assistance in finding the person and which is then in his possession or, on subsequently receiving any such information, forthwith gives notice of it.(3) The Court shall not refuse leave under this section if it appears to the Court that on the committal for trial of the defendant he was not informed by the committing justice of the requirements of subsections (1), (2) and (5), and the statement in writing of the committing justice that the defendant was so informed shall be evidence that the defendant was so informed.(4) Any evidence tendered to disprove an alibi may, subject to any direction by the Court, be given before or after evidence is given in support of the alibi.(5) Any notice purporting to be given under this section on behalf of the defendant by his solicitor shall, unless the contrary is proved, be deemed to be given with the authority of the defendant.(6) A notice under this section shall be given in writing to the Director of Public Prosecutions, and may be given by delivering it to the Director, or by leaving it at his office, or by sending it in a registered letter or by certified mail addressed to him at his office.(7) In this section:evidence in support of an alibi means evidence tending to show that by reason of the presence of the defendant at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.
the prescribed period means the period of ten days commencing at the time of the committal of the defendant for trial.
405B Warning to be given by Judge in relation to lack of complaint in certain sexual offence proceedings
(1) (Repealed)(2) Where on the trial of a person for a prescribed sexual offence evidence is given or a question is asked of a witness which tends to suggest an absence of complaint in respect of the commission of the alleged offence by the person upon whom the offence is alleged to have been committed or to suggest delay by that person in making any such complaint, the Judge shall:(a) give a warning to the jury to the effect that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and(b) 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.
405C Judge not required to warn jury against convicting person of certain sexual offences
(1) (Repealed)(2) On the trial of a person for a prescribed sexual offence, the Judge is not required by any rule of law or practice to give, in relation to any offence of which the person is liable to be convicted on the charge for the prescribed sexual offence, a warning to the jury to the effect that it is unsafe to convict the person on the uncorroborated evidence of the person upon whom the offence is alleged to have been committed.(3) Nothing in subsection (2) affects the operation (if any) of any rule of law or practice which requires:(a) a Judge on the trial of a person for a sexual offence alleged to have been committed before the commencement of this section to give the jury a warning as referred to in subsection (2), or(b) a Judge on the trial of a person for a sexual offence alleged to have been committed after the commencement of this section, being a sexual offence other than a prescribed sexual offence, to give the jury a warning as referred to in subsection (2).(c) (Repealed)(4) Nothing in subsection (2) affects the operation (if any) of any rule of law or practice which requires:(a) a Judge on the trial of a person for an offence alleged to have been committed under section 78H, 78I, 78K or 78L before the commencement of the amendments made to this Act by the Statute Law (Miscellaneous Provisions) Act (No 1) 1987 to give the jury a warning as referred to in subsection (2), or(b) a Judge on the trial of a person for a sexual offence alleged to have been committed after that commencement, being a sexual offence other than a prescribed sexual offence, to give the jury a warning as referred to in subsection (2).
405D Closed-circuit television may be used for giving child victim’s evidence
(1) In any criminal proceedings in which it is alleged that the accused person has committed a prescribed sexual offence on a child, the court may, on the application of the prosecution, make an order permitting the child’s evidence to be given by means of closed-circuit television facilities.(2) The court may, for that purpose, adjourn any part of the proceedings to other premises and may also order a court officer to be present at those premises, or any other person to be present with the child as a support or interpreter, or both.(3) An order may only be made under subsection (1) if the court is satisfied:(a) that it is likely that the child would suffer mental or emotional harm if required to give evidence in the ordinary way, or(b) that it is likely that the facts would be better ascertained if the child’s evidence is given in accordance with such an order.(4) The court may vary or revoke an order made under this section, either of its own motion or on application by a party to the proceedings.(5) In this section, child, in relation to any proceedings, means a child under the age of 16 years at the time that the child is giving evidence in the proceedings.
405E Use of closed-circuit television facilities
(1) Closed-circuit television facilities used for the giving of evidence by a child are to be operated in such a manner that the persons who have an interest in the proceedings are able to see the child (and any person present with the child) on the same or another television monitor.(2) The Governor may make regulations for or with respect to the use of closed-circuit television facilities for the giving of evidence by children in accordance with an order made under section 405D.(3) Rules of court may (subject to the regulations) also make provision for or with respect to the use of closed-circuit television facilities for the giving of evidence by children in accordance with an order made under section 405D.
405F Alternative arrangements for child victim’s evidence
(1) In any criminal proceedings in which it is alleged that the accused person has committed a personal assault offence on a child, the court may, of its own motion or on the application of the prosecution, direct alternative arrangements to be made for the giving of evidence by the child.(2) Without limiting the generality of subsection (1), the following alternative arrangements may be directed to be made:(a) seating arrangements for persons who have an interest in the proceedings (including the level at which they are seated and the persons in the child’s line of vision),(b) the use of screens,(c) adjournment of any part of the proceedings to other premises.(3) The court may vary or revoke a direction made under this section, either of its own motion or on application by a party to the proceedings.(4) Nothing in this section limits any discretion that a court has with respect to the conduct of proceedings in any case.(5) In this section:child, in relation to any proceedings, means a child under the age of 16 years at the time that the child is giving evidence in the proceedings.
personal assault offence means an offence under:
(a) Part 3, or(b) section 25 of the Children (Care and Protection) Act 1987,or an offence of attempting, or of conspiracy or incitement, to commit such an offence (but does not include any offence exempted from this section by the regulations).
405G Premises to be considered part of court
Any premises to which proceedings are adjourned for the purposes of section 405D or 405F are to be taken to be part of the court in which the proceedings are being held.
(1) In any criminal proceedings in which the evidence of a child is given by means of closed-circuit television facilities, the Judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of those facilities.(2) In any criminal proceedings in which alternative arrangements for the giving of evidence by a child are directed to be made under section 405F, the Judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of those alternative arrangements.
405I Validity of proceedings not affected
The failure of a child to give evidence in accordance with an order made under section 405D or a direction made under section 405F does not affect the validity of the proceedings or any decision made in connection with those proceedings.
406 Depositions by persons dangerously ill—how to be taken and when admissible in evidence
(1) Whenever by the representation of any credible person on oath, or in case of urgency without oath, it is made to appear to any Justice that a person, able to give material information respecting an indictable offence, is dangerously ill, whereby his evidence will probably be lost if not forthwith taken, such Justice may take the deposition of the person so in danger, touching such offence, in like manner as if a prosecution for the same were then pending before such Justice, and transmit the same to the Attorney-General. And if afterwards, on the trial of any person for the offence to which the deposition relates, or for the murder or manslaughter of the deponent, in case of his death or alleged death by reason of such offence, it is proved to the satisfaction of the Judge that the witness is dead, or unable from illness to attend the trial, or to give evidence, his deposition may be read in evidence for or against the accused, although not taken in the presence or hearing either of the party prosecuting or of such accused person:Provided always that:
(1) Every such deposition shall be in the form, or substantially in the form, contained in the Fifth Schedule, and shall be subscribed by the Justice taking the same, of which fact, and that, such deposition was duly taken by him under this section, the deposition itself, if purporting to be signed by such Justice, shall be sufficient proof.(2) A copy of every such deposition shall be delivered to every person whom the same may affect criminally, as soon after the taking thereof as shall be practicable.(3) If practicable, every such person shall, before being committed or placed on his trial, have full opportunity afforded him, if he thinks fit, for the cross-examination of any such deponent, for which purpose any Judge or magistrate may, by any order or orders in writing, cause any person in custody to be conveyed to any place mentioned in any such order, and afterwards to be returned to that custody.(2) A copy of the deposition shall be forwarded by the Attorney General to the Director of Public Prosecutions.
407 Competency of parties and accused persons and their husbands and wives to give evidence
Every party to a civil proceeding, inquiry in which evidence is or may be given, or arbitration, and the husband or wife of such party, shall be competent to give evidence in such proceeding, inquiry, or arbitration.Every accused person in a criminal proceeding, and the husband or wife of such person, shall be competent, but, except as provided in this section and section 407AA, not compellable, to give evidence in such proceeding in every Court:
Provided that:
(1) No such person charged with an indictable offence shall be liable to be called as a witness on behalf of the prosecution.(2) The failure of an accused person or of the wife or husband, as the case may be, of an accused person to give evidence, shall not be made the subject of any comment by the judge or by counsel for the Crown.Where two or more persons are being tried together, and comment is made, by or on behalf of any of them, upon the failure of any of them, or of the husband or wife, as the case may be, of any of them, to give evidence, the judge may make such observations to the jury in regard to such comment or such failure to give evidence as he thinks fit.
(3) The husband or wife of any accused person in a criminal proceeding shall be compellable to give evidence in such proceeding in every Court, either for the prosecution or for the defence, and without the consent of the accused:(a) where the offence charged is under any Act or Imperial Act by which the husband or wife of the accused is made a compellable witness in a proceeding in respect of the offence,(b) where the offence charged is under the provisions of section 25, 26, 50, 51 or 52 of the Children (Care and Protection) Act 1987.
407AA 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,(b) a reference to a domestic violence offence committed upon the husband or wife of an accused person includes a reference to an offence of contravening a prohibition or restriction specified in an apprehended domestic violence order under Part 15A which was made against the accused person and in respect of which that husband or wife was the protected person,(c) a reference to a child assault offence is a reference to:(i) an offence under, or mentioned in, section 19, 24, 27, 28, 29, 30, 33, 33A, 35, 39, 41, 42, 43, 44, 46, 47, 48, 49, 58, 59, 61, 61B, 61C, 61D, 61E, 66A, 66B, 66C, 66D, 493 or 494 committed upon a child under the age of 18 years, or(ii) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in subparagraph (i), and(d) a reference to a child assault offence committed upon a child includes a reference to an offence of contravening a prohibition or restriction specified in an apprehended domestic violence order under Part 15A which was made against the accused person and in respect of which that child was the protected person.(2) Except as provided in subsection (3), the husband or wife of an accused person in a criminal proceeding shall, where the offence charged is a domestic violence offence (other than an offence constituted by a negligent act or omission) committed upon that husband or wife, be compellable to give evidence in the proceeding in every Court, either for the prosecution or for the defence, and without the consent of the accused person.(2A) Except as provided in subsection (3), the husband or wife of an accused person in a criminal proceeding shall, where the offence charged is a child assault offence (other than an offence constituted by a negligent act or omission) committed upon:(a) a child living in the household of the accused person, or(b) a child who, although not living in the household of the accused person, is a child of the accused person and that husband or wife,be compellable to give evidence in the proceeding in every Court, either for the prosecution or for the defence, and without the consent of the accused person.(3) The husband or wife of an accused person shall not be compellable to give evidence for the prosecution as referred to in subsection (2) or (2A) if that husband or wife has applied to, and been excused by, the Judge or Justice.(4) A Judge or Justice may excuse the husband or wife of an accused person from giving evidence for the prosecution as referred to in subsection (2) or (2A) if satisfied 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 that:(a) it is relatively unimportant to the case to establish the facts in relation to which it appears that that husband or wife is to be asked to give evidence or there is other evidence available to establish those facts, and(b) the offence with which the accused person is charged is of a minor nature.(5) A Judge or Justice shall, when excusing the husband or wife of an accused person from giving evidence under subsection (4), state the reasons for so doing and cause those reasons to be recorded in writing in a form prescribed by regulations made under subsection (9).(6) An application under this section by the husband or wife of an accused person to be excused from giving evidence shall be made and determined in the absence of the jury (if any) and the accused person but in the presence of the legal representative (if any) of the accused person.(7) A Judge or Justice may conduct the hearing of an application under this section in any manner thought 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 thought fit.(8) The fact that the husband or wife of an accused person in a criminal proceeding has applied under this section to be excused, or has been excused, from giving evidence in the proceeding shall not be made the subject of any comment by the Judge or by any party in the proceeding.(9) The Governor may make regulations, not inconsistent with this Act, prescribing the form of a record required to be made as referred to in subsection (5).
407A Abolition of presumption of coercion of wife by husband
(1) Any presumption of law that an offence committed by a wife in the presence of her husband is committed under the coercion of the husband is hereby abolished.(2) This section shall come into operation as from the date of the passing of the Crimes (Amendment) Act 1924.
408 Declaration by person since deceased
(1) Every declaration, by a person since deceased, shall be admissible in evidence, in any case where a dying declaration is now admissible, if the declarant was at the time aware of his danger, and on the whole believed that he would shortly die, although he entertained some degree of hope.(2) No such declaration, if otherwise admissible as a dying declaration, shall be excluded because of its having been, or purporting to be, on oath.
409 Depositions may be read as evidence for prosecution
(1) A deposition of a witness may be read as evidence for the prosecution at the trial of the accused upon proof:(a) on oath that the witness is dead, or so ill as not to be able to travel or to give evidence, or is absent from Australia, and(b)(i) that the deposition, if taken down in writing and purporting to be signed by the Justice or coroner by or before whom it purports to have been taken, was taken in the presence of the accused or during any period when the accused, having been discharged under section 41 (1B) of the Justices Act 1902, was absent, or(ii) where the deposition is in the form of a transcript of the record made, by any means, other than writing, authorised by law for the taking of the deposition, of the matter deposed by the witness in proceedings before a Justice or coroner, that the record so made is a true record of the matter so deposed and was made in the presence of the accused or during any period when the accused, having been discharged under section 41 (1B) of the Justices Act 1902, was absent and the transcript is a correct transcript of the record so made, and(c) that the accused, or his counsel or attorney, had a full opportunity of cross-examining the witness, or the accused, having been discharged under section 41 (1B) of the Justices Act 1902, was absent when the deposition was taken and was not represented by counsel or attorney:Provided that no such deposition as is referred to in paragraph (b) (i) shall be so read as evidence if it be proved that it was not in fact signed by the Justice or coroner purporting to sign it.
(2) The deposition of any witness called and examined before a Justice or coroner by and on behalf of the accused may, if the accused so require, be read as evidence in his defence at the trial whenever:(a) the witness is dead, or so ill as not to be able to travel or to give evidence, or is absent from Australia, or(b) the Justice or coroner who committed the accused or held him to bail has certified before the committal or holding to bail that the evidence of the witness is material, and that he is, in his belief, willing to attend the trial, but is unable to bear the expense of attendance.Provided that no deposition may be so read upon the ground mentioned in paragraph (b) if the witness has, in due time before the trial, been subpoenaed by the Crown.
(3) Depositions taken on the preliminary or other investigation of any charge of felony or misdemeanour, may be read as evidence on the trial of the accused for any other offence, although of a higher or different nature, if they would be admissible on his trial for the offence in respect of which they were taken; and such depositions may be proved in the same manner as if the accused were on trial for that offence.(4) The reference in subsection (1) to “deposition” where firstly occurring and any reference in subsections (2) and (3) to “deposition” or “depositions” shall, where the deposition or depositions was or were recorded by any means, other than writing, authorised by law for the taking of the deposition or depositions, be read and construed as a reference to a transcript, certified in the manner prescribed by regulations made under the Justices Act 1902, of the deposition or depositions as so recorded.(5) For the purposes of subsection (1), unless it is proved to the contrary:(a) a deposition, or a deposition in the form of a transcript, of the evidence of a witness shall be deemed to have been taken or made in the presence of the accused, or during any period when the accused, having been discharged under section 41 (1B) of the Justices Act 1902, was absent, and(b) the accused or his counsel or attorney shall be deemed to have had a full opportunity of cross-examining the witness, or the accused, having been discharged under section 41 (1B), shall be deemed to have been absent when the deposition was taken and not represented by counsel or attorney,if it appears from the deposition that it was so taken or made, and that the accused or his counsel had such an opportunity or was so absent and not represented by counsel or attorney, as the case may be.(6) For the purposes of subsection (1) (b) (ii), where a deposition is in the form of a transcript of the record, unless it is proved to the contrary, the record shall be deemed to be a true record of the matter deposed, and the transcript shall be deemed to be a correct transcript of the record if, in the case of a transcript of a record:(a) made in shorthand notes, the transcript is identified by, and signed in the handwriting of, the person purporting to have made the shorthand notes, or(b) made by any other means (other than writing) authorised by law for the taking of a deposition, the transcript is certified in the manner prescribed by regulations made under the Justices Act 1902.(7) Except in so far as the Judge otherwise orders, a prescribed statement may be read as evidence for the prosecution at the trial of the accused upon proof on oath that the person who made the statement is dead, or so ill as not to be able to travel or to give evidence, or is absent from Australia.(8) A prescribed statement may, if the accused so requires, be read as evidence in the accused’s defence at the trial of the accused whenever:(a) the person who made the statement is dead, or so ill as not to be able to travel or to give evidence, or is absent from Australia, or(b) the Justice who committed the accused or held the accused to bail has certified before the committal or holding to bail that the evidence of the person who made the statement is material, and that that person is, in the belief of the Justice, willing to attend the trial, but is unable to bear the expense of attendance,but no statement may be so read on the ground mentioned in paragraph (b) if the person who made the statement has, in due time before the trial, been subpoenaed by the Crown.(9) A prescribed statement made in respect of any charge of felony or misdemeanour may be read as evidence on the trial of the accused for any other offence, although of a higher or different nature, if the contents of the statement would be admissible on the trial of the accused for the offence in respect of which it was made.(10) Where at a trial it appears to the Judge that the whole or any part of a prescribed statement is inadmissible, the Judge may reject the statement or that part, as the case may be, as evidence.(11) In this section, prescribed statement means a written statement the whole or a part of which was admitted as evidence under section 48A of the Justices Act 1902 and includes a part thereof rejected under section 48F of that Act.
409A Depositions of previous connected proceedings may be read as evidence in committal proceedings
(1) In this section:deposition has the same meaning as it has where it appears in section 409.
(2) In a hearing referred to in section 41 of the Justices Act 1902, being a hearing in relation to a prescribed sexual offence, where:(a) the prescribed sexual offence is alleged to have been committed in the course of a connected set of circumstances in which another prescribed sexual offence is alleged to have been committed,(b) a person has been committed for trial in respect of, or has been convicted of, the other prescribed sexual offence, and(c) each of the prescribed sexual offences is alleged to have been committed on the same person,any of the depositions of the person referred to in paragraph (c) taken at the proceedings in which the person referred to in paragraph (b) was committed or tried in respect of the other prescribed sexual offence may, in so far as they are relevant to the prescribed sexual offence the subject of the hearing, be read as evidence.(3) Where, in a hearing referred to in subsection (2) in relation to a prescribed sexual offence, the person charged with that offence has been served with a copy of the depositions referred to in subsection (2) and has had a reasonable opportunity to examine them, the person upon whom the offence is alleged to have been committed shall not, without the leave of the Justice, be asked by or on behalf of the person so charged to give in evidence any material contained in, or to answer a question which is the same or substantially similar to a question an answer to which is contained in, a deposition which may, pursuant to subsection (2), be read as evidence.
409B Admissibility of evidence relating to sexual experience etc
(1) In this section:the 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.
the complainant, in relation to any proceedings, means the person, or any of the persons, upon whom a prescribed sexual offence with which the accused person stands charged in those proceedings is alleged to have been committed.
(2) In prescribed sexual offence proceedings, evidence relating to the sexual reputation of the complainant is inadmissible.(3) In prescribed sexual offence proceedings, evidence which discloses or implies that the complainant has or may have had sexual experience or a lack of sexual experience or has or may have taken part or not taken part in any sexual activity is inadmissible except:(a) where it is evidence:(i) of sexual experience or a lack of sexual experience of, or sexual activity or a 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) of events which are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,(b) where it is evidence relating to a relationship which 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) where:(i) the accused person is alleged to have had sexual intercourse, as defined in section 61A (1), with the complainant and the accused person does not concede the sexual intercourse so alleged, and(ii) it is evidence 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) where it is evidence relevant to whether:(i) at the time of the commission of the alleged prescribed sexual offence, there was present in the complainant a disease which, at any relevant time, was absent in the accused person, or(ii) at any relevant time, there was absent in the complainant a disease which, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person,(e) where it is evidence 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 which took place after the commission of the alleged prescribed sexual offence), or(f) where it is evidence given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question which may, pursuant to subsection (5), be asked,and its probative value outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission.(4) In prescribed sexual offence proceedings, a witness shall not be asked:(a) to give evidence which is inadmissible under subsection (2) or (3), or(b) by or on behalf of the accused person, to give evidence which is or may be admissible under subsection (3) unless the Court or Justice has previously decided that the evidence would, if given, be admissible.(5) In prescribed sexual offence proceedings, where the Court or Justice is satisfied that:(a) 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) taken part 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.(6) 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 (5) shall be decided by the Judge in the absence of the jury.(7) Where a Court or Justice has decided that evidence is admissible under subsection (3), the Court or Justice shall, 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.(8) Nothing in this section authorises the admission of evidence of a kind which was inadmissible immediately before the commencement of this section.
409C Limitation on dock statements in certain sexual offence proceedings
(1) In prescribed sexual offence proceedings, a person may not, in any statement made under section 405, make reference to a matter which would not, by virtue of section 409B, be admissible if given on oath.(2) Where a person has made reference, in a statement made under section 405, to a matter which would not, by virtue of section 409B, be admissible if given on oath, the Judge shall tell the jury to disregard that matter.
410 Confessions etc, when inadmissible
(1) No confession, admission, or statement shall be received in evidence against an accused person if it has been induced:(a) by any untrue representation made to him by the prosecutor, or some person in authority, or(b) by any threat or promise, held out to him by the prosecutor, or some person in authority.(2) Every confession, admission, or statement made after any such representation or threat or promise shall be deemed to have been induced thereby, unless the contrary be shown.(3) Provided that no confession, admission, or statement by the accused shall be rejected by reason of his having been told, by a person in authority, that whatever he should say might be given in evidence for or against him.
411 Criminating statements admissible though on oath
No criminating statement by the accused, offered in evidence in any case, if the same was made voluntarily, and before any charge of felony or misdemeanour preferred against him, shall be rejected, because of the statement having been on oath.
412 Evidence to character of accused
Evidence to the character of the accused shall, in all cases, be received and dealt with as evidence on the question of his guilt.
413 Witnesses to character—what evidence admissible
Every witness examined as to character, whether of the accused or of any other person, may give evidence not only as to the general repute of such person, but also as to the witness’s own knowledge of his habits, disposition, and conduct.But no witness shall be allowed to state that he would not believe another on his oath.
413A Restriction on cross-examination of accused
(1) Subject to this section and section 413B, where in any proceedings an accused person gives evidence he shall not in cross-examination be asked, and if asked shall not be required to answer, any question tending to reveal to the Court or jury:(a) the fact that he has committed, or has been charged with or convicted or acquitted of, any offence other than the offence charged, or(b) the fact that he is generally or in a particular respect a person of bad disposition or reputation.(2) Subsection (1) shall not apply to a question tending to reveal to the Court or jury any fact such as is mentioned in subsection (1) (a) or (b) if evidence of that fact is admissible for the purpose of proving the commission by the accused of the offence charged.(3) Where, in any proceedings in which two or more persons are jointly charged, any of the accused persons gives evidence, subsection (1) shall not in his case apply to any question tending to reveal to the Court or jury a fact about him such as is mentioned in subsection (1) (a) or (b) if evidence of that fact is admissible for the purpose of showing any other of the accused to be not guilty of the offence with which that other is charged.(4) Subsection (1) shall not apply if:(a) the accused person has personally or by his counsel asked any witness for the prosecution or for a person jointly charged with him any question concerning the witness’s conduct on any occasion (other than his conduct in the activities or circumstances giving rise to the charge or his conduct during the trial or in the activities, circumstances or proceedings giving rise to the trial) or as to whether the witness has committed, or has been charged with or convicted or acquitted of, any offence, and(b) the Court is of the opinion that the main purpose of that question was to raise an issue as to the witness’s credibility,but the Court shall not permit a question falling within subsection (1) to be put to an accused person by virtue of this subsection unless it is of the opinion that the question is relevant to his credibility as a witness and that in the interests of justice and in the circumstances of the case it is proper to permit the question to be put.(5) Subsection (1) shall not apply where the accused person has given evidence against any person jointly charged with him in the same proceedings.
413B Admissibility of evidence and questions about accused’s disposition or reputation
(1) In any proceedings an accused person may:(a) personally or by his counsel ask questions of any witness with a view to establishing directly or by implication that the accused is generally or in a particular respect a person of good disposition or reputation,(b) himself give evidence tending to establish directly or by implication that the accused is generally or in a particular respect such a person, or(c) call a witness to give any such evidence,but where any of these things has been done, the prosecution may call, and any person jointly charged with the accused person may call, or himself give, evidence to establish that the accused person is a person of bad disposition or reputation, and the prosecution or any person so charged may in cross-examining any witness (including, where he gives evidence, the accused person) ask him questions with a view to establishing that fact.(2) Where by virtue of this section a party is entitled:(a) to call evidence to establish that the accused person is a person of bad disposition or reputation, that party may call evidence of his previous convictions, if any, whether or not the party calls any other evidence for that purpose, or(b) in cross-examining the accused to ask him questions with a view to establishing that he is such a person section 413A (1) shall not apply in relation to his cross-examination by that party.
413C Documentary evidence of previous convictions
(1) Where in any proceedings the fact that an accused person has been convicted of an offence is admissible in evidence, a document purporting to be a record of the conviction (whether in the State or elsewhere) of the accused person for the offence and purporting to be signed by an authorised person shall be received in the proceedings as evidence of that fact.(2) The method of proving a conviction authorised by this section shall be in addition to and not to the exclusion of any other method of proving a conviction.(3) For the purposes of subsection (1), authorised person means:(a) the officer-in-charge, New South Wales Police Fingerprint Section, or any person authorised by him for the purposes of this section,(b) a gaol recorder,(c) the officer-in-charge of police at the town where the Court, in which it is proposed to give evidence that an accused person has been convicted of an offence, is being held, or(d) in the case of proceedings before a stipendiary magistrate, the police prosecutor conducting the proceedings.
414 Evidence of previous conviction charged in an indictment
No evidence of any previous conviction, charged in an indictment, shall be offered, except in reply to evidence of character, unless the accused is convicted of the subsequent offence charged in such indictment.
414A Certificates to be evidence
(1) At any inquest or where a person is charged before a justice or justices with an indictable offence it shall not be necessary, unless so directed by the coroner or the said justice or justices, for any person who has made a scientific examination of any article or living person or body to give evidence of the result of the examination, but a certificate under the hand of such person setting out that he has made the examination, the nature of his scientific qualifications, and the facts and conclusions he has arrived at shall be prima facie evidence of the matters stated in the certificate.Where the certificate is tendered by the prosecutor the justice or justices shall not dispose of the case summarily except with the consent of the accused.
(1A) A certificate which would, by virtue of section 4AB of the Traffic Act 1909, be prima facie evidence of the particulars certified in and by the certificate in proceedings for an offence shall be prima facie evidence of those particulars at any inquest or where a person is charged before a Magistrate or before any Court with an indictable offence.(1B) Where any certificate is admitted in evidence by virtue of subsection (1A), evidence of the accuracy or reliability of the approved radar speed measuring device to which it relates shall not be required unless evidence that the device was not accurate or not reliable has been adduced.(1C) A certificate which would, by virtue of section 4AC of the Traffic Act 1909, be prima facie evidence of the particulars certified in and by the certificate in proceedings for an offence is prima facie evidence of those particulars at any inquest or where a person is charged before a Magistrate or before any court with an indictable offence.(1D) At an inquest or where a person is charged before a Magistrate or before any court with an indictable offence:(a) a photograph tendered in evidence as a photograph taken by means of an approved camera recording device (within the meaning of the Traffic Act 1909) on a specified day at a specified location is to be accepted as having been so taken unless evidence is adduced to the contrary, and(b) a photograph so taken is prima facie evidence of the matters shown or recorded on the photograph, and(c) evidence of the condition of the approved camera recording device is not required unless evidence that the device was not in proper condition has been adduced.(1E) If a photograph is tendered in evidence in proceedings referred to in subsection (1D), a certificate purporting to be signed by a member of the police force and certifying that:(a) the member is authorised by the Commissioner of Police to install and inspect approved camera recording devices (within the meaning of the Traffic Act 1909), and(b) on the day recorded on the photograph as the day on which the photograph was taken, the member carried out the inspection specified in the certificate on the approved camera recording device that took the photograph, and(c) on that inspection the approved camera recording device was found to be operating correctly,is to be tendered in evidence in those proceedings and is prima facie evidence of the particulars certified in and by the certificate.(2) A certificate which would, by virtue of section 4E (12) (a) or (b) of the Traffic Act 1909, be prima facie evidence of the particulars certified in and by the certificate in proceedings for an offence under section 4E of that Act shall be prima facie evidence of those particulars at any inquest or where a person is charged before a stipendiary magistrate or before any Court with an indictable offence.(3) Where any certificate is admitted in evidence by virtue of subsection (2), evidence of the condition of a breath analysing instrument or the manner in which it was operated shall not be required unless evidence that the instrument was not in proper condition or was not properly operated has been adduced.(3A) A certificate which would, by virtue of section 5AB of the Traffic Act 1909 (Evidence of presence of drugs), be prima facie evidence of the particulars certified in and by the certificate in proceedings for an offence under section 5 (2) of that Act shall be prima facie evidence of those particulars:(a) at any inquest, or(b) where a person is charged before a Magistrate or before any Court with an indictable offence which involved the use of a motor vehicle on a public street.(3B) (Repealed)(4) A certificate which would, by virtue of section 4G of the Traffic Act 1909, be prima facie evidence of the particulars certified in and by the certificate in proceedings for an offence under section 4E of that Act shall be prima facie evidence of those particulars at any inquest or where a person is charged before a stipendiary magistrate or before any Court with an indictable offence.(4A) A certificate referred to in subsection (4) 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.(5) At any inquest or where a person is charged before a Magistrate or before any Court with an indictable offence:(a) a photograph tendered in evidence as a photograph taken by means of the operation, on a specified day, of an approved camera detection device (within the meaning of the Traffic Act 1909) installed at a specified location for the purpose of recording any contravention of a traffic control light signal shall be deemed to have been so taken unless evidence is adduced to the contrary,(b) a photograph deemed to have been so taken shall be prima facie evidence of the matters shown or recorded on the photograph, and(c) evidence of the condition of the approved camera detection device shall not be required unless evidence that the device was not in proper condition has been adduced.(6) If a photograph is tendered in evidence in proceedings referred to in subsection (5), a certificate purporting to be signed by a member of the police force certifying that:(a) the member is authorised by the Commissioner of Police to install and inspect approved camera detection devices (within the meaning of the Traffic Act 1909),(b) on a day and at a time specified in the certificate (being within 48 hours before the time recorded on the photograph as the time at which the photograph was taken), the member carried out the inspection specified in the certificate on the approved camera detection device by means of which the photograph was taken, and(c) upon that inspection, the approved camera detection device was found to be properly operating,shall be tendered in evidence in those proceedings and shall be prima facie evidence of the particulars certified in and by the certificate.(7) A certificate which would, by virtue of Part 5 of Schedule 4 to the Transport Administration Act 1988, be prima facie evidence of the particulars certified in and by the certificate in proceedings for an offence under Schedule 4 to that Act shall be prima facie evidence of those particulars:(a) at any inquest, or(b) where a person is charged before a Magistrate or before any Court with an indictable offence.(7A) A certificate referred to in subsection (7) 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.(8) Where any certificate under clause 20 of Schedule 4 to the Transport Administration Act 1988 is admitted in evidence by virtue of subsection (7), evidence of the condition of a breath analysing instrument or the manner in which it was operated shall not be required unless evidence that the instrument was not in proper condition or was not properly operated has been adduced.
414B Proof of service of notice to produce
An affidavit by the Director of Public Prosecutions or the Solicitor for Public Prosecutions or a member of the staff of the Director of Public Prosecutions, or by the accused or his solicitor or his solicitor’s clerk, or by any officer of police of the service of any notice to produce and of the time when it was served, with a copy of such notice annexed to such affidavit, shall be sufficient evidence of the service of the original of such notice and of the time when it was served.
415 Proof of banking transactions
(1) Subject to subsection (2), in any case where it is necessary to prove:(a) the state of an account in the books or records of a banking corporation, or company,(b) that any person has not or had not an account, or any funds, to his credit in any such books or records, or(c) any entry in any such books or records with respect to:it shall not be necessary to produce any such book or record, but evidence of any such matter may be given, either orally or by affidavit, by any officer or clerk of the corporation or company who has examined the book or record or by an authorised person who has examined the book or record.(i) the opening of an account of any kind,(ii) the specimen signature of any person,(iii) the account number of any account,(iv) the issue of, or the number on, any cheque, draft, warrant, cheque-book, bank-book or passbook,(v) the particulars of any deposit, deposit slip or remitting warrant,(vi) the drawing, endorsement or marking of any cheque,(vii) the dishonouring of any cheque, draft or promissory note,(viii) the presentation and meeting of any cheque,(ix) the depositing or withdrawal of any money in respect of any account,(x) any documents in respect of any such deposit or withdrawal, or(xi) the lodgment of any document or security or other item in safe deposit or for safe custody or the granting of access to or withdrawal of any such item,(1A) Evidence that a book or record was a book or record of a banking corporation or company may, if given by an authorised person who has examined the book or record, be given on information and belief.(2) Where in any Court evidence is given by affidavit under subsection (1) the Court may if it thinks fit order that the evidence be not admitted unless the person who made the affidavit gives oral evidence in the proceedings or gives evidence by a further affidavit.(3) The method of proving any matter referred to in subsection (1) shall be in addition to and not to the exclusion of any other method of proving that matter.(4) This section applies to and in respect of books and records:(a) wherever situated,(b) whenever examined, and(c) whether the corporation or company whose books or records they are carries on business in New South Wales or elsewhere.(5) In this section authorised person means:(a) a person before whom, pursuant to section 26 of the Oaths Act 1900, an oath, declaration or affidavit may be taken or made in a country or place outside New South Wales,(b) a member of the police force of or above the rank of sergeant, or(c) a person approved by the Attorney-General for the purposes of this section.
In any case, where, by any Act, power to make by-laws, rules, ordinances, or regulations, is conferred upon any persons, or body, any printed paper purporting to be such by-laws, rules, ordinances, or regulations, and to be printed by the Government Printer, shall be evidence:(a) that by-laws, rules, ordinances, or regulations, in the words printed in such paper, were duly made by such persons or body,(b) that such by-laws, rules, ordinances, or regulations if appearing by such paper to have been approved of or confirmed by the Governor, have been so approved or confirmed.
417 Proof of lawful authority or excuse
Wherever, by this Act, doing a particular act or having a specified article or thing in possession without lawful authority or excuse, is made or expressed to be an offence, the proof of such authority or excuse shall lie on the accused.
418 Evidence by police officers
(1) In any criminal proceedings against a person charged with a summary or indictable offence, a police officer may give evidence in chief for the prosecution by reading, or being led through, a written statement previously made by the police officer.(2) Evidence may not be so given unless:(a) the statement was made by the police officer at the time of or soon after the occurrence of the events to which it refers, and(b) the police officer signed the statement at the time it was made, and(c) a copy of the statement has been given to the person charged or to his or her counsel or attorney.(3) This section does not affect the rules as to the admissibility of evidence.(4) This section extends to criminal proceedings commenced, but not concluded, before 1 January 1991 (being the date of the commencement of this section).
419 Bigamy—evidence of first marriage
On the prosecution of a person for bigamy the first marriage shall not be proved by the evidence of the husband, or wife, of such marriage alone.
419A Pilfering of goods from vessel, wharf etc
On the prosecution of any person for stealing any property in or from any vessel, barge, boat or train, or from any dock, wharf, quay, railway yard or other railway premises, or from any store or shed used in connection with and adjoining such dock, wharf, quay, railway yard or other railway premises, or 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 for receiving any property so stolen knowing it to have been stolen, evidence may be given of any writing, printing, or marks upon the said property, or upon the packages containing the same without producing or giving notice to produce the original writing, printing, or marks; and on any such prosecution a document purporting to be the bill of lading, shipping receipt, consignment note, railway receipt, waybill, original order, delivery order, specification, schedule, packing list, or invoice relating to the said property shall be admissible in evidence on production and without further proof, and shall be evidence of the particulars contained therein, and that the ownership of the said property is in the consignee referred to therein or his assignee.In this section train includes any railway carriage, railway truck or other railway vehicle which is on any railway.
420 Receivers—evidence of guilty knowledge
On the trial of a person for feloniously receiving stolen property, evidence may be given(a) that he has been, within seven years previously, convicted of larceny, or the felonious receiving of stolen property, or of obtaining property by false pretences,(b) that other stolen property, if stolen within twelve months before the commission of the offence charged, or if more than one offence is charged, the commission of the earliest such offence charged, has been found in his possession, or on his premises,and such facts may be taken into consideration by the jury as evidence of guilty knowledge:Provided always, that
(1) the same facts have been given in evidence against the accused on his committal, or(2) that ten days’ notice, at the least, was given him before his trial of the intention to adduce such evidence.
421 Cases of forged English stamps
On the trial of a person for an offence under this Act relating to the stamps of the United Kingdom, any stamp, or impression, transmitted to the Governor, with a despatch purporting to be from one of Her Majesty’s Secretaries of State, as a genuine stamp, or impression of any die-plate, or instrument, provided, or used, under the direction of the Commissioners of Stamps, or other lawful authority, for the purpose of denoting any stamp duty, shall be evidence of such stamp, or impression, die-plate, or instrument.
422 Proof of coin being counterfeit
Where, on the trial of a person for an offence under this Act relating to the Queen’s current coin, it is necessary to prove that any coin is counterfeit, it shall not be necessary to prove that fact by the evidence of an officer of Her Majesty’s Mint, but it shall be sufficient to prove the same by the evidence of any other witness.
423 On trial for perjury presumption of authority to administer oath etc
On any trial for perjury, the person before whom the perjury is alleged to have been committed shall be presumed to have had authority to administer the oath, or take the declaration, or affirmation, unless the contrary is shown.
423A Joint trial in case of perjury etc
Where any two or more persons are severally indicted for perjury or false swearing and the statements alleged to be false are alleged to have been made on the same occasion and before the same tribunal and in respect of the same subject matter and are in each case to the same effect, whether in identical terms or not, all such persons may be tried together at the same time and before the same jury, provided that each person shall have his full right of challenge.
After the conviction of an accused person in any case, and before sentence passed, the Court may if it sees fit, as well on application by the Crown as by or on behalf of the accused, summon witnesses and examine them on oath, in respect of any matter in extenuation of his offence.
425 Conviction for misdemeanour where facts amount to felony
Where, on the trial of a person for a misdemeanour, it appears that the facts in evidence amount in law to felony, he may notwithstanding be found guilty of and sentenced for such misdemeanour, and in that case shall not be liable to be prosecuted for felony on the same facts:Provided always, that the Court may discharge the jury from giving any verdict upon such trial, and direct the person to be indicted for felony.
426 After trial for felony, where alternative verdict possible no further prosecution
No person tried for felony, in any case where under this Act he may be acquitted thereof but be found guilty of some other offence, shall be liable to prosecution on the same facts for any such other offence.
427 On trial for any felony or misdemeanour—verdict of attempt
Where on the trial of a person for any felony, or misdemeanour, the jury are not satisfied that he is guilty thereof, but are satisfied that he is guilty of an attempt to commit, or of an assault with intent to commit, the same, they may acquit him of the offence charged, and find him guilty of such attempt, or assault, and he shall be liable to punishment accordingly.