JUSTICES ACT 1902 - SECT 41 Procedure on hearing of charge of indictable offence

This legislation has been repealed.

JUSTICES ACT 1902 - SECT 41

41 Procedure on hearing of charge of indictable offence

(1) Whenever a person charged with an offence upon an information under section 21 appears or is brought before a Justice or Justices voluntarily upon summons or upon apprehension under or without warrant or in custody for such or any other offence, the Justice or Justices shall, if the person so charged has been provided with a written copy of the charges against the person, take the evidence for the prosecution in manner hereinbefore provided.

(1A) If the informant, having received notice of the time and place, does not appear in person or by his or her counsel or attorney when the defendant appears or is brought, as provided in subsection (1), before the Justice or Justices, the Justice or Justices shall discharge the defendant as to the information under inquiry, unless for some reason the Justice or Justices think it proper to adjourn the hearing to an appointed time and place:

Provided that unless with the consent of the defendant such adjournment shall not exceed eight clear days, but this proviso does not apply where the defendant is refused bail (as referred to in section 25 of the Bail Act 1978 ).

(1B)

(a) Subject to this section, the evidence for the prosecution shall be taken in the presence of the defendant.

(b) Upon application made by a defendant appearing before the court or made by his or her counsel or attorney on his or her behalf, the Justice or Justices may excuse the defendant from attendance during the taking of any evidence for the prosecution, if the Justice or Justices is or are satisfied that during his or her absence the defendant will be represented during the taking of that evidence by counsel or attorney.

(c) Any period during which a defendant is excused, pursuant to paragraph (b), from attendance during the taking of any evidence shall, in relation to the defendant so excused, be deemed to be an adjournment for the purposes of section 34.

(d) Where, having appeared or been brought before a Justice or Justices as referred to in subsection (1), a person so referred to subsequently fails to appear or be brought before the Justice or Justices, the taking of evidence for the prosecution may, notwithstanding paragraph (a), commence or continue in the absence of the defendant if no good and proper reason is shown for the absence of the defendant.

(e) The evidence for the prosecution shall not be taken under paragraph (d) in the absence of a defendant unless:

(i) the defendant has been served under section 48B with a copy of any written statement to be tendered as evidence in the proceedings, or

(ii) the defendant has been informed of the time set by the Justice or Justices for the commencement of the taking of the evidence for the prosecution.

(2) When all evidence for the prosecution has been taken, the Justice or Justices shall, after considering all the evidence before the Justice or Justices:

(a) if not of the opinion referred to in paragraph (b)--forthwith order the defendant to be discharged as to the information then under inquiry, or

(b) if of the opinion that, having regard to all the evidence before the Justice or Justices, the evidence is capable of satisfying a jury beyond reasonable doubt that the defendant has committed an indictable offence:

(i) if the defendant is present--proceed as provided by subsections (4), (5) and (6), or

(ii) if the defendant is not present--proceed as provided by subsection (6).

(4)

(i) Where the Justice or Justices form the opinion referred to in subsection (2) (b) that the evidence is capable of satisfying a jury beyond reasonable doubt that the defendant has committed an indictable offence, the Justice or Justices shall:

(a) say to the defendant: "Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so, but whatever you say will be recorded, and may be given against you in evidence at your trial", and

(b) before the defendant makes any statement in answer, inform the defendant and give the defendant clearly to understand that the defendant has nothing to hope from any promise of favour and nothing to fear from any threat which may have been holden out to the defendant to induce the defendant to make any admission or confession of his or her guilt, but that whatever the defendant then says may be given in evidence against the defendant upon his or her trial notwithstanding such promise or threat.

(ii) Whatever the defendant then says shall be recorded by one of the means referred to in section 36 (4).

(iii) Such statement if taken down in writing shall be read over to the defendant and shall be signed by the Justice or Justices.

(iv) Such statement:

(a) if taken down in writing, may be given in evidence at the trial of the defendant without further proof unless it be proved that the Justice or Justices by whom it purports to be signed did not in fact sign it,

(b) if in the form of a transcript, certified in the prescribed manner, of a record (other than in writing) made pursuant to paragraph (ii), may be given in evidence at the trial of the defendant if it is proved on oath that the record so made is a true record of the statement made by the defendant and that the transcript is a correct transcript of the record so made.

(v) Nothing herein shall prevent the prosecutor in any case from giving in evidence any admission or confession or other statement of the defendant, made at any time, which by law would be admissible as evidence against the defendant.

(5)

(i) After the defendant has made such statement, or if the defendant makes no such statement, the Justice or Justices shall ask the defendant if he or she desires to give evidence himself or herself or to call any witness on his or her behalf.

(ii) Any evidence then given by or on behalf of the defendant shall be taken by the Justice or Justices in manner hereinbefore provided in respect of evidence for the prosecution.

(6) When all the evidence for the prosecution and any evidence for the defence have been taken, the Justice or Justices shall, after considering all the evidence before the Justice or Justices:

(a) if of the opinion that, on the basis of all the evidence before the Justice or Justices, there is a reasonable prospect that a jury would convict the defendant of an indictable offence--commit the defendant for trial, or

(b) if not of that opinion--forthwith order the defendant to be discharged as to the information then under inquiry.

(7) Where, pursuant to subsections (2) (b) (ii) and (6), a defendant has been committed for trial, a Magistrate or Judge may set aside the order for committal and any warrant of commitment issued thereon if, upon the application of the defendant made before the presentation of an indictment against the defendant, good and proper reason is shown for the absence of the defendant and the Magistrate or Judge is satisfied that it is in the interests of justice to do so.

(8) A reference in this section to a jury is a reference to a reasonable jury properly instructed.

(8A) For the purposes of committal proceedings, the Justice or Justices must not exclude evidence on any of the grounds set out in section 90 (Discretion to exclude admissions) or Part 3.11 (Discretions to exclude evidence) of the Evidence Act 1995 .

(9) The Justice or Justices may at any stage during the examination or cross-examination of any witness giving evidence for the prosecution or the defence terminate the examination or cross-examination on any particular matter if satisfied that any further examination or cross-examination on the matter will not assist the Justice or Justices in forming any opinion referred to in subsection (2) or (6).

(10) If a person attends at committal proceedings because the person has been directed under section 48E to attend, the Justice or Justices must not allow the person to be cross-examined in respect of matters that were not the basis of the reasons for giving the direction, unless the Justice or Justices are satisfied that there are substantial reasons why, in the interests of justice, the person should be cross-examined in respect of those matters.

(11) Despite any other provision of this section, the Justice or Justices may, at any time, on the application of the defendant and with the consent of the informant, commit the defendant for trial.