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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Criminal Law (Procedure) Amendment
Bill 2002
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Justices Act 1902 amended
3. The Act amended 3
4. Section 4 amended 3
5. Section 66 replaced 3
6. Section 69 amended 4
7. Section 73 amended 5
8. Section 97B inserted 5
9. Section 101 amended 6
10. Section 101A amended 6
11. Sections 101B to 108 replaced by sections 102 to 106 6
12. Section 124 amended 10
13. Section 127 amended 10
14. Ninth Schedule replaced 11
15. Transitional and savings 12
Part 3 -- The Criminal Code amended
16. The Act amended 14
17. Section 611B and 611C inserted 14
18. Section 617A amended 17
19. Section 636A replaced 18
page i
104--2
Criminal Law (Procedure) Amendment Bill 2002
Contents
Part 4 -- Consequential amendments
Division 1 -- Bail Act 1982 amended
20. The Act amended 20
21. Section 31 amended 20
Division 2 -- Children's Court of Western Australia
Act 1988 amended
22. The Act amended 20
23. Section 19C amended 20
24. Section 30 amended 20
Division 3 -- Criminal Law (Mentally Impaired
Defendants) Act 1996 amended
25. The Act amended 21
26. Section 17 amended 21
Division 4 -- Director of Public Prosecutions
Act 1991 amended
27. The Act amended 21
28. Section 11 amended 21
Division 5 -- Evidence Act 1906 amended
29. The Act amended 22
30. Section 8 amended 22
31. Section 9 amended 22
32. Section 106A amended 22
33. Section 106T amended 22
page ii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Criminal Law (Procedure) Amendment
Bill 2002
A Bill for
An Act --
· to amend the Justices Act 1902 and The Criminal Code in relation
to pretrial procedures; and
· to consequentially amend other Acts,
and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Criminal Law (Procedure) Amendment Bill 2002
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Criminal Law (Procedure)
Amendment Act 2002.
5 2. Commencement
This Act comes into operation on a day fixed by proclamation.
page 2
Criminal Law (Procedure) Amendment Bill 2002
Justices Act 1902 amended Part 2
s. 3
Part 2 -- Justices Act 1902 amended
3. The Act amended
The amendments in this Part are to the Justices Act 1902*.
[* Reprinted as at 8 October 2001.
5 For subsequent amendments see Act No. 53 of 2000.]
4. Section 4 amended
Section 4 is amended by deleting the definition of "preliminary
hearing".
5. Section 66 replaced
10 Section 66 is repealed and the following section is inserted
instead --
"
66. Proceedings for the purposes of committal are not
open court
15 (1) Where for the purposes of the committal for trial or
sentencing of a person charged with an indictable
offence --
(a) a witness is examined before justices; or
(b) a written statement or other evidence is
20 tendered to justices,
the room or place in which that occurs is not to be
regarded as an open court, and the justices may order
that no person is to be in the room or place without
their permission.
25 (2) The justices are not to make an order under subsection
(1) unless it appears to them that the ends of justice
require them to do so.
".
page 3
Criminal Law (Procedure) Amendment Bill 2002
Part 2 Justices Act 1902 amended
s. 6
6. Section 69 amended
(1) Section 69(2) and (3) are repealed and the following subsections
are inserted instead --
"
5 (2) Subject to subsection (3) and despite any other Act,
where a person is charged with an indictable offence
and the charge is not dealt with summarily, a written
statement of any person may be tendered by the
prosecution to a court of summary jurisdiction for use
10 in any resulting trial or sentencing of the defendant
if --
(a) the statement complies with the conditions in
subsection (4);
(b) before the statement is so tendered, it has been
15 filed and served in accordance with
section 103(1); and
(c) where the statement refers to any other
document or exhibit, the copy of the statement
served under paragraph (a) is accompanied by a
20 copy or description of the other document or
exhibit.
(3) Despite any other written law, where a person is charged
with an indictable offence and the charge is not dealt with
summarily, a statement of an affected child, as defined in
25 section 106A of the Evidence Act 1906 may be tendered
to a court of summary jurisdiction for use in any
resulting trial or sentencing of the defendant if --
(a) in the case of a written statement, it complies
with the conditions in subsection (4);
30 (b) in the case of an electronically recorded
statement, it complies with the conditions in
subsection (5);
page 4
Criminal Law (Procedure) Amendment Bill 2002
Justices Act 1902 amended Part 2
s. 7
(c) before the statement is so tendered, it has been
filed and served in accordance with
section 103(1); and
(d) where the statement refers to any other
5 document or exhibit, the copy of the statement
served under paragraph (c) is accompanied by a
copy or description of the other document or
exhibit.
".
10 (2) After section 69(7) the following subsection is inserted
"
(7a) A written statement tendered under this section to a
court of summary jurisdiction need not be signed by
the judicial officer constituting the court.
15 ".
7. Section 73 amended
Section 73(2) to (5) are repealed.
8. Section 97B inserted
Before section 98 the following section is inserted in Part V
20 Division 2 --
"
97B. Interpretation
In this Division --
"committal mention" means any hearing to which the
25 complaint is adjourned under section 101A(g);
"contempt offence" means an offence under
section 102(4) or 104(5).
".
page 5
Criminal Law (Procedure) Amendment Bill 2002
Part 2 Justices Act 1902 amended
s. 9
9. Section 101 amended
Section 101(1) is amended by deleting "Following" and
inserting instead --
"
5 On the resumption of the hearing of the complaint
following
".
10. Section 101A amended
Section 101A is amended as follows:
10 (a) by deleting paragraph (e); and
(b) in paragraph (g), by deleting "proceedings" and
inserting instead --
" complaint ".
[Note: The heading to section 101A will be altered to read "If no expedited
15 committal, defendant to be informed of procedures".]
11. Sections 101B to 108 replaced by sections 102 to 106
Sections 101B to 108 are repealed and the following sections
are inserted instead --
"
20 102. Compulsory examination by the prosecution
(1) At any time before the committal mention a person
may, without notice to the defendant, be summoned
under section 74 or 78 to attend before the justices for
the purpose of being examined by or on behalf of the
25 prosecution or producing a document or thing.
(2) The defendant --
(a) is not a party to an examination under
subsection (1);
(b) is not to cross-examine a witness attending an
30 examination under subsection (1); and
page 6
Criminal Law (Procedure) Amendment Bill 2002
Justices Act 1902 amended Part 2
s. 11
(c) is not to address the justices on an examination
under subsection (1).
(3) The evidence of a witness under this section must be
taken in the form of a deposition under section 73(1).
5 (4) A person who prints, publishes, exhibits, sells,
circulates, distributes, or in any other manner makes
public any evidence taken on an examination under
subsection (1), or attempts to do so, commits a
contempt of the Supreme Court and is punishable
10 accordingly by that court.
103. Disclosure by the prosecution
(1) The prosecution is required to serve on the defendant
and file with the clerk of petty sessions --
(a) a copy of every statement or deposition,
15 obtained by the prosecution, of any person who
may be able to give relevant evidence at any
resulting trial;
(b) notice of the name and, if known, the address of
any person from whom no statement, report or
20 deposition has been obtained but who the
prosecution thinks may be able to give relevant
evidence at any resulting trial and a description
of the relevant evidence concerned;
(c) a copy of every other relevant document or
25 exhibit or, if it is not practicable to copy the
document or exhibit, a description of it and
notice of where and when it can be inspected;
(d) a copy of the criminal history of the accused;
and
30 (e) any other prescribed document.
page 7
Criminal Law (Procedure) Amendment Bill 2002
Part 2 Justices Act 1902 amended
s. 11
(2) The requirements of subsection (1) must be complied
with not later than 14 days before the day of the
committal mention.
(3) If a statement or deposition is recorded on video-tape,
5 it is sufficient for the purposes of subsection (1)(a) to
provide notice of the video-tape.
(4) The justices may order that a particular requirement of
subsection (1) be dispensed with if, on an application
by the prosecution, the justices are satisfied that --
10 (a) there is a good reason for doing so; and
(b) no miscarriage of justice will result.
(5) An application under subsection (4) may be made by
the prosecution without notice to the defendant and
may be heard and determined in the absence of the
15 defendant.
(6) The room or place in which the justices hear and
determine an application under subsection (4) is not to
be regarded as an open court, and the justices may
order that no person is to be in the room or place
20 without their permission.
(7) If the prosecution does not comply with a requirement
of subsection (1) and that requirement has not been
dispensed with under subsection (4), the justices may
discharge the defendant or adjourn the hearing of the
25 complaint to enable compliance with that subsection,
as the justices think fit.
104. Procedure on committal mention
(1) On the committal mention the justices are to --
(a) require the defendant to plead to the charge;
30 (b) require that all written statements that are,
under section 69, to be tendered to them are
page 8
Criminal Law (Procedure) Amendment Bill 2002
Justices Act 1902 amended Part 2
s. 11
tendered, and they are to receive those
statements which are not to be read in court;
and
(c) require that any video-tape of evidence that is,
5 under section 106T of the Evidence Act 1906,
to be admitted is tendered, and they are to
receive the video-tape which is not to be played
in court.
(2) The defendant is not to --
10 (a) give or tender any evidence; or
(b) submit to the justices that there is insufficient
evidence before them to put the defendant on
his or her trial for the offence.
(3) Unless the defendant pleads guilty to the charge, the
15 justices are to commit the defendant to a court of
competent jurisdiction for trial.
(4) If the defendant pleads guilty to the charge, the justices
are, without convicting the defendant, to commit the
defendant to a court of competent jurisdiction for
20 sentence.
(5) A person who prints, publishes, exhibits, sells,
circulates, distributes, or in any other manner makes
public any evidence tendered on a committal mention,
or attempts to do so, commits a contempt of the
25 Supreme Court and is punishable accordingly by that
court.
105. Liability of body corporate for contempt offences
Without affecting any other liability of any person for a
contempt offence or otherwise --
30 (a) a company or other body corporate is liable to
any punishment or penalty for a contempt
offence as if it were an individual so far as the
page 9
Criminal Law (Procedure) Amendment Bill 2002
Part 2 Justices Act 1902 amended
s. 12
punishment or penalty is enforceable against a
company or body corporate; and
(b) if any director, manager, secretary, or officer of
a company, or any member of the managing
5 body of a body corporate commits, or
knowingly authorises or permits, a contempt
offence, he or she is liable to the punishment or
penalty for the offence.
106. Saving
10 Nothing in section 102(4) or 104(5) applies to the
publication of information --
(a) with regard to any proceedings, punishment or
penalty for a contempt offence; or
(b) after the information is, at the trial or
15 sentencing of the defendant, admitted into
evidence or stated aloud under section 617A of
The Criminal Code.
".
12. Section 124 amended
20 Section 124 is amended by deleting "against or for the
defendant".
13. Section 127 amended
Section 127 is amended by deleting "sentence under
section 101C or 108, or for trial under section 101C or 107,"
25 and inserting instead --
"
trial under section 104(3) or for sentence under
section 104(4),
".
page 10
Criminal Law (Procedure) Amendment Bill 2002
Justices Act 1902 amended Part 2
s. 14
14. Ninth Schedule replaced
The Ninth Schedule is repealed and the following Schedule is
inserted instead --
"
5 Ninth Schedule
[s. 101A]
The hearing is going to be adjourned to enable the prosecution to
make available to you copies of statements of its witnesses or notice
of statements recorded on video-tape. With these you will be given
10 copies of any other relevant documents or exhibits or, if it is not
practicable to copy a document or exhibit, a description of it and
notice of where and when it can be inspected.
The prosecution may apply to have witnesses examined in court
before the hearing resumes. The evidence of any witnesses so
15 examined will be recorded in depositions and you will be provided
with copies of those depositions or notice of depositions recorded on
video-tape.
The statements, depositions and any other papers will be served on
you or your solicitor at least 14 days before the resumption of the
20 hearing.
When the hearing is resumed you will be required to plead to the
charge [charges]. The prosecution will then be required to tender
certain statements and video-tapes.
You will be committed to the Supreme Court [or District Court] for
25 trial, or sentence, as the case requires. The evidence will be sent to the
Supreme Court [or District Court] and will not be publicised before
the trial.
The hearing will now be adjourned for . . . days.
Remand/Bail.
30 ".
page 11
Criminal Law (Procedure) Amendment Bill 2002
Part 2 Justices Act 1902 amended
s. 15
15. Transitional and savings
(1) In this section --
"commencement" means the coming into operation of this
Part;
5 "new provisions" means the Justices Act 1902 as amended by
this Part;
"old provisions" means the Justices Act 1902 as it was
immediately before commencement.
(2) If immediately before commencement a complaint stands
10 adjourned under section 101A(g) of the old provisions, then on
and from commencement the new provisions operate in respect
of the complaint and the complaint is to be regarded as having
been adjourned to a committal mention under the new
provisions.
15 (3) If immediately before commencement proceedings had
commenced but not been completed (whether or not they then
stand adjourned) under section 101B of the old provisions in
relation to a complaint, then --
(a) on and from commencement the new provisions operate
20 in respect of the complaint; and
(b) at the first opportunity after commencement the justices
must adjourn those proceedings to a committal mention
under the new provisions.
(4) If immediately before commencement a complaint stands
25 adjourned under the old provisions to a date for a preliminary
hearing but that hearing has not commenced, then --
(a) on and from commencement the new provisions operate
in respect of the complaint; and
page 12
Criminal Law (Procedure) Amendment Bill 2002
Justices Act 1902 amended Part 2
s. 15
(b) on the date set for a preliminary hearing the justices
must either --
(i) if both the prosecution and the defendant
consent -- conduct a committal mention under
5 the new provisions in respect of the complaint; or
(ii) otherwise -- adjourn the complaint to a
committal mention under the new provisions.
(5) If under subsection (4)(b)(i) the justices conduct a committal
mention in respect of a complaint, section 103 of the new
10 provisions does not operate in respect of the complaint.
(6) If immediately before commencement a preliminary hearing had
commenced but not been completed (whether or not the hearing
then stands adjourned) under the old provisions in relation to a
complaint, then on and from commencement the hearing is to be
15 conducted and the complaint dealt with under the old
provisions.
page 13
Criminal Law (Procedure) Amendment Bill 2002
Part 3 The Criminal Code amended
s. 16
Part 3 -- The Criminal Code amended
16. The Act amended
The amendments in this Part are to The Criminal Code*.
[* Reprinted as at 9 February 2001 as the Schedule to the
5 Criminal Code Act 1913 appearing as Appendix B to the
Criminal Code Compilation Act 1913.
For subsequent amendments see Acts Nos. 23 and
34 of 2001.]
17. Section 611B and 611C inserted
10 After section 611A, the following sections are inserted --
"
611B. Disclosure by the prosecution
(1) If an indictment has been presented to a court against a
person, the prosecution is required to file and serve on
15 the person --
(a) a copy of every statement or deposition,
obtained by the prosecution, of any person who
may be able to give relevant evidence at the
trial;
20 (b) notice of the name and, if known, the address of
any person from whom no statement, report or
deposition has been obtained but who the
prosecution thinks may be able to give relevant
evidence at the trial and a description of the
25 relevant evidence concerned;
(c) notice of any person whom the prosecution
proposes to call as a witness at the trial;
(d) a copy of every other document or exhibit that
the prosecution proposes to adduce at the trial
30 or, if it is not practicable to copy the document
page 14
Criminal Law (Procedure) Amendment Bill 2002
The Criminal Code amended Part 3
s. 17
or exhibit, a description of it and notice of
where and when it can be inspected;
(e) a copy of the criminal history of the accused;
and
5 (f) any other document prescribed by rules of
court.
(2) The requirements of subsection (1) must be complied
with as soon as practicable after the prosecution has
obtained the document.
10 (3) As soon as practicable after the requirements of
subsection (1) have been complied with, the
prosecution must file, and serve on the accused person,
a certificate of compliance.
(4) The certificate of compliance must --
15 (a) be made by a person who was involved in, and
who has knowledge of, the investigation of the
charge in the indictment;
(b) certify that the prosecution has complied with
subsection (1); and
20 (c) state the person's grounds for so certifying and
any inquiries made by the person before so
certifying where inquiry has been necessary.
(5) A person who knowingly or without reasonable
diligence makes a certificate of compliance that is false
25 in a material particular commits an offence.
Penalty: $5 000.
(6) The court may order that a particular requirement of
subsection (1) be dispensed with if, on an application
by the prosecution, the court is satisfied that --
30 (a) there is a good reason for doing so; and
(b) no miscarriage of justice will result.
page 15
Criminal Law (Procedure) Amendment Bill 2002
Part 3 The Criminal Code amended
s. 17
611C. Disclosure by the accused person
(1) Where an accused person is committed for trial, the
accused person is required to file and serve on the
prosecution --
5 (a) a copy of every statement, report or deposition,
obtained by the accused person, of any person
who may be able to give relevant expert
evidence at the trial;
(b) notice of the name and, if known, the address of
10 any person from whom no statement, report or
deposition has been obtained but who the
accused person thinks may be able to give
relevant expert evidence at the trial and a
description of the relevant expert evidence
15 concerned;
(c) notice of any factual elements of the offence
which the accused may contend cannot be
proved;
(d) notice of any objection by the accused person
20 to --
(i) any document that the prosecution
proposes to adduce at the trial; or
(ii) any evidence disclosed in the statement
or deposition of a witness whom the
25 prosecution proposes to call at the trial,
and the grounds for that objection; and
(e) notice of any evidence tending to show that the
accused person was not present when the
offence is alleged to have been committed or an
30 act or omission material to that offence is
alleged to have occurred, including --
(i) details of the nature of the evidence; and
page 16
Criminal Law (Procedure) Amendment Bill 2002
The Criminal Code amended Part 3
s. 18
(ii) details of the name and address of each
person whom the accused person
proposes to call to give the evidence, or
other information sufficient to enable
5 each such person to be located.
(2) The requirements of subsection (1) must be complied
with --
(a) not later than 10 days before the date appointed
for the commencement of the trial; or
10 (b) if after that time the accused person has
obtained any evidence or information referred
to in subsection (1), as soon as practicable after
the accused person has obtained that evidence
or information.
15 (3) The court may order that a particular requirement of
subsection (1)(a), (b), (c) or (d) be dispensed with if, on
an application by the accused person, the court is
satisfied that --
(a) there is a good reason for doing so; and
20 (b) no miscarriage of justice will result.
(4) The requirements of subsection (1) extend to any
person representing the accused person in connection
with the trial.
".
25 18. Section 617A amended
Section 617A is amended by deleting "without a preliminary
hearing".
page 17
Criminal Law (Procedure) Amendment Bill 2002
Part 3 The Criminal Code amended
s. 19
19. Section 636A replaced
Section 636A is repealed and the following section is inserted
instead --
"
5 636A. Failure to comply with a disclosure requirement
(1) In this section --
"disclosure requirement" means any requirement
imposed by or under this Code or the Justices
Act 1902 to file and serve a document.
10 (2) Where, on a trial on indictment, a document is not filed
and served in accordance with a disclosure
requirement, the court, on application being made by
the relevant party for an adjournment of the trial, is
to --
15 (a) adjourn the trial for such period as the court
considers sufficient to enable the party to
complete a proper investigation of evidence
relating to the document; or
(b) if, in the circumstances, the court thinks fit,
20 adjourn the trial and discharge the jury.
(3) Where a document is not filed and served in
accordance with a disclosure requirement, nothing in
subsection (2) limits or otherwise affects the discretion
of the court to adjourn the trial if the court considers
25 that, in the circumstances, the relevant party has not
had sufficient time to complete a proper investigation
of evidence relating to the document, or for any other
reason.
page 18
Criminal Law (Procedure) Amendment Bill 2002
The Criminal Code amended Part 3
s. 19
(4) On the resumption of a trial on indictment that has
been adjourned to enable a party to investigate
evidence relating to a document, the relevant party --
(a) may require any person, including an accused
5 person, who has given evidence relating to the
document to the court to be recalled as a
witness and may cross-examine or further
cross-examine any such person; and
(b) may adduce evidence in rebuttal of the
10 evidence so adduced.
(5) A failure to comply with a disclosure requirement may
be the subject of adverse comment to the jury by the
court, counsel for the accused person, or the
prosecution.
15 ".
page 19
Criminal Law (Procedure) Amendment Bill 2002
Part 4 Consequential amendments
Division 1 Bail Act 1982 amended
s. 20
Part 4 -- Consequential amendments
Division 1 -- Bail Act 1982 amended
20. The Act amended
The amendment in this Division is to the Bail Act 1982*.
5 [* Reprinted as at 27 August 1999.
For subsequent amendments see 2000 Index to Legislation of
Western Australia, Table 1, p. 32 and Act No. 23 of 2001.]
21. Section 31 amended
Section 31(2)(d)(ii) is deleted.
10 Division 2 -- Children's Court of Western Australia
Act 1988 amended
22. The Act amended
The amendments in this Division are to the Children's Court of
Western Australia Act 1988*.
15 [* Reprinted as at 25 August 2000.
For subsequent amendments see 2000 Index to Legislation of
Western Australia, Table 1, p. 62 and Act No. 53 of 2000.]
23. Section 19C amended
(1) Section 19C(1) is amended as follows:
20 (a) by deleting paragraph (c) and "or" after that paragraph;
(b) in paragraph (d), by deleting "if there is no preliminary
hearing or".
(2) Section 19C(2) is repealed.
24. Section 30 amended
25 Section 30(3) is amended by deleting "and includes a decision
made on a preliminary hearing".
page 20
Criminal Law (Procedure) Amendment Bill 2002
Consequential amendments Part 4
Criminal Law (Mentally Impaired Defendants) Act 1996 Division 3
amended
s. 25
Division 3 -- Criminal Law (Mentally Impaired Defendants)
Act 1996 amended
25. The Act amended
The amendments in this Division are to the Criminal Law
5 (Mentally Impaired Defendants) Act 1996*.
[* Act No. 70 of 1996.
For subsequent amendments see 2000 Index to Legislation of
Western Australia, Table 1, p. 108 and Act No. 23 of 2001.]
26. Section 17 amended
10 Section 17(2) is amended as follows:
(a) by deleting "; and" after paragraph (b) and inserting
instead a full stop;
(b) by deleting paragraph (c).
Division 4 -- Director of Public Prosecutions Act 1991 amended
15 27. The Act amended
The amendment in this Division is to the Director of Public
Prosecutions Act 1991*.
[* Reprinted as at 1 June 2001.]
28. Section 11 amended
20 Section 11(2) is repealed and the following subsection is
inserted instead --
"
(2) The function referred to in subsection (1) includes the
conduct of a committal mention within the meaning of
25 section 97B of the Justices Act 1902.
".
page 21
Criminal Law (Procedure) Amendment Bill 2002
Part 4 Consequential amendments
Division 5 Evidence Act 1906 amended
s. 29
Division 5 -- Evidence Act 1906 amended
29. The Act amended
The amendments in this Division are to the Evidence Act 1906*.
[* Reprinted as at 4 January 2001.
5 For subsequent amendments see Act No. 23 of 2001.]
30. Section 8 amended
Section 8(1) is amended as follows:
(a) by deleting the semicolon at the end of paragraph (g)
and inserting instead a full stop;
10 (b) by deleting paragraph (h).
31. Section 9 amended
Section 9(3) is repealed.
32. Section 106A amended
Section 106A is amended in the definition of "proceeding" by
15 deleting "a preliminary hearing under the Justices Act 1902
and".
33. Section 106T amended
Section 106T(5) is amended in the definition of "hearing" by
deleting paragraph (a).
page 22
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