Criminal Procedure Act 1986 (NSW)

Criminal Procedure Act 1986 No 209 An Act relating to the prosecution of indictable offences, the listing of criminal proceedings before the Supreme Court and the District Court, committal proceedings and proceedings for summary offences and the giving of certain indemnities and undertakings; and for other purposes. Chapter 1 Preliminary 1 Name of Act This Act may be cited as the Criminal Procedure Act 1986. 2 Commencement (1) Sections 1 and 2 shall commence on the date of assent to this Act. (2) Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor and notified by proclamation published in the Gazette. 3 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires— accused person includes, in relation to summary offences, a defendant and, in relation to all offences (where the subject-matter or context allows or requires), an Australian legal practitioner representing an accused person. apprehended violence order has the same meaning as in the Crimes (Domestic and Personal Violence) Act 2007. apprehended violence order proceedings has the same meaning as in the Crimes (Domestic and Personal Violence) Act 2007. authorised officer means— (a) a registrar of a court, or (b) an employee of the Attorney General's Department authorised by the Attorney General as an authorised officer for the purposes of this Act. bail has the same meaning as it has in the Bail Act 2013. case conference means a conference held under Division 5 of Part 2 of Chapter 3. case conference certificate means a case conference certificate required to be completed and filed under Division 5 of Part 2 of Chapter 3. case conference material—see section 78 (5). charge certificate—see section 66 (1). Chief Magistrate means the Chief Magistrate of the Local Court appointed under the Local Court Act 2007. coincidence evidence has the same meaning as it has in the Evidence Act 1995. committal proceedings means proceedings before a Magistrate for the purpose of committing a person charged with an indictable offence for trial or sentence. court means— (a) the Supreme Court, the Court of Criminal Appeal, the Land and Environment Court, the Industrial Relations Commission, the District Court or the Local Court, or (b) any other court that, or person who, exercises criminal jurisdiction, but, subject to the Children (Criminal Proceedings) Act 1987, does not include the Children's Court or any other court that, or person who, exercises the functions of the Children's Court. Court of Coal Mines Regulation means the Court of Coal Mines Regulation established under the Coal Mines Regulation Act 1982. domestic violence complainant, in proceedings for a domestic violence offence, means the person against whom the domestic violence offence is alleged to have been committed, but does not include a person who is a vulnerable person. domestic violence offence means a domestic violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007. exercise a function includes perform a duty. function includes a power, authority or duty. indictable offence means an offence (including a common law offence) that may be prosecuted on indictment. Industrial Magistrate means an Industrial Magistrate appointed under the Industrial Relations Act 1996. intervention plan—see section 346. intervention program—see section 346. law enforcement or investigating officer, for an alleged offence, means a police officer, or another officer or a member of staff of an agency created by or under an Act, who is responsible for an investigation into a matter involving the suspected commission of the alleged offence. offence means an offence against the laws of the State (including a common law offence). plea offer—see section 77 (1). prescribed sexual offence means— (a) an offence under section 43B, 45, 45A, 61B, 61C, 61D, 61E, 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF, 61L, 61M, 61N, 61O, 63, 65, 65A, 66, 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66EA, 66EB, 66EC, 66F, 67, 68, 71, 72, 72A, 73, 73A, 74, 76, 76A, 78A, 78B, 78H, 78I, 78K, 78L, 78M, 78N, 78O, 78Q, 79, 80, 80A, 80D, 80E, 81, 81A, 81B, 87, 89, 90, 90A, 91, 91A, 91B, 91D, 91E, 91F, 91G, 91P, 91Q, 91R, 316 (if the concealed serious indictable offence is a prescribed sexual offence) or 316A of the Crimes Act 1900, or (b) an offence that, at the time it was committed, was a prescribed sexual offence for the purposes of this Act or the Crimes Act 1900, or (c) an offence (including an offence under section 86 of the Crimes Act 1900) that includes the commission of, or an intention to commit, an offence referred to in paragraph (a) or (b), or (d) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a), (b) or (c). prescribed summary offence has the same meaning as in the Director of Public Prosecutions Act 1986. prosecutor means the Director of Public Prosecutions or other person who institutes or is responsible for the conduct of a prosecution and includes (where the subject-matter or context allows or requires) an Australian legal practitioner representing the prosecutor. public officer means any of the following persons, if acting in an official capacity— (a) an employee in the Public Service or the NSW Police Force, (b) an officer or employee of a statutory body representing the Crown, (c) an employee of a council within the meaning of the Local Government Act 1993, (d) a member of staff of Local Land Services, (e) the Director of Public Prosecutions, Deputy Director of Public Prosecutions or Solicitor for Public Prosecutions, (f) an officer or employee of a body declared by the regulations to be a public body for the purposes of this definition. recorded statement—see section 289D. regulations means regulations under this Act. Rule Committee for a court means a person or body having power to make rules for the court. rules means rules made for the purposes of a court to which the relevant provision applies. sexual offence witness has the same meaning as in section 294D. summary offence means an offence that is not an indictable offence. tendency evidence has the same meaning as it has in the Evidence Act 1995. trial Judge means the Judge before whom trial proceedings, following empanelment of a jury in proceedings on indictment, are heard. vulnerable person has the same meaning as it has in Part 6 of Chapter 6. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act are explanatory notes and do not form part of this Act. (3) In the absence of evidence to the contrary, a person specified in paragraphs (a)–(f) of the definition of public officer who purports to exercise a function as a public officer under this Act is presumed to be acting in an official capacity. (4) In this Act, a reference to the empanelment of a jury is, in the case of a trial by a Judge alone, taken to be a reference to the point in time when the Judge first assumes the role of the tribunal of fact. 4 Regulations and rules (1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) The Rule Committee for a court may make rules, not inconsistent with this or any other Act, for or with respect to the following matters— (a) any matter that is required or permitted to be prescribed by rules, or that is necessary or convenient to be prescribed by rules, in relation to the practice or procedure to be followed to give effect to this Act, (b) any matter incidental to, or relating to, any such practice or procedure. (3) The rules are to be made in accordance with the Act under which the court is constituted. 4A Fees (1) The regulations may make provision for or with respect to the following matters— (a) the fees payable to a court in relation to the conduct of criminal proceedings in the court, including fees for the following— (i) the filing or registration of any document in the court, (ii) the sealing or other authentication of any document that has been filed in the court, (iii) the issue of any document out of the court, (b) the fees payable in relation to the functions exercised by the Sheriff in relation to criminal proceedings, (c) the fees payable for administrative services provided by a registrar or other officer of the court, whether in connection with the administration of this Act or otherwise, (d) the payment of fees under this Act, including— (i) the waiver, postponement or remission, in part or in whole, of the fees, and (ii) the persons to whom the fees are payable, and (iii) the time at which the fees become due, and (iv) the persons liable to pay the fees. (1A) A regulation made under subsection (1)(d)(i) may authorise a registrar of a court or the Sheriff to— (a) waive, postpone or remit fees payable to the court or the Sheriff, as relevant, and (b) impose conditions on the waiver, postponement or remission of the fees. (1B) A reference in subsection (1A) to a registrar is, in relation to the Supreme Court, a reference to— (a) the Principal Registrar of the Court, or (b) another registrar of the Court nominated by the Principal Registrar. (2) Fees of the kind referred to in subsection (1) (a) or (b) are not payable by the Crown, or by any person acting on behalf of the Crown, with respect to any criminal proceedings prosecuted by— (a) the Crown, (b) any Minister of the Crown, (c) any person or body prescribed by the regulations or belonging to a class of persons or bodies so prescribed. (2A) Despite subsection (2), such fees are payable by any NSW Government agency or statutory body representing the Crown prescribed by the regulations for the purposes of this subsection. (3) Subsection (2) does not prevent the recovery by the Crown or any such person or body of any fees that would, had they been paid by the Crown or any such person or body, have been so recoverable. (4) Unpaid fees may be recovered by the person to whom they are payable, as a debt, in any court of competent jurisdiction. (5) In this section, criminal proceedings means proceedings for an offence (whether summary or indictable), and includes the following— (a) committal proceedings, (b) proceedings relating to bail, (c) proceedings relating to sentence, (d) proceedings on an appeal against conviction or sentence. Chapter 2 General provisions Part 1 Offences 5 Certain offences to be dealt with on indictment (1) An offence must be dealt with on indictment unless it is an offence that under this or any other Act is permitted or required to be dealt with summarily. (2) An offence may be dealt with on indictment if it is an offence that under this or any other Act is permitted to be dealt with summarily or on indictment. 6 Certain offences to be dealt with summarily (1) The following offences must be dealt with summarily— (a) an offence that under this or any other Act is required to be dealt with summarily, (b) an offence that under this or any other Act is described as a summary offence, (c) an offence for which the maximum penalty that may be imposed is not, and does not include, imprisonment for more than 2 years, excluding the following offences— (i) an offence that under any other Act is required or permitted to be dealt with on indictment, (ii) an offence listed in Table 1 or 2 to Schedule 1. (2) An offence may be dealt with summarily if it is an offence that under this or any other Act is permitted to be dealt with summarily or on indictment. 7 Certain summary offences may be dealt with by Local Court (1) An offence that is permitted or required to be dealt with summarily is to be dealt with by the Local Court. (2) This section does not apply to an offence that, under this or any other Act, is required to be dealt with summarily otherwise than by the Local Court. 8 Prosecution of indictable offences (1) All offences shall be punishable by information (to be called an indictment) in the Supreme Court or the District Court, on behalf of the Crown, in the name of the Attorney General or the Director of Public Prosecutions. (2) Such an indictment may be presented or filed whether or not the person to whom the indictment relates has been committed for trial in respect of an offence specified in the indictment. (3) This section does not apply to offences that are required to be dealt with summarily. (4) This section does not affect any law or practice that provides for an indictable offence to be dealt with summarily. 9 Name in which prosecutions may be instituted Any prosecution or proceedings instituted by the Attorney General or the Director of Public Prosecutions in respect of any offence (whether an indictable offence or a summary offence) may be instituted in either the official name or the personal name of the Attorney General or the Director of Public Prosecutions. 10 Indictment of bodies corporate (1) Unless a contrary intention appears, a provision of an Act relating to an offence applies to bodies corporate as well as to individuals. (2) On arraignment, a body corporate may enter a plea of "guilty" or "not guilty" by means of writing signed by its representative. (3) If no such plea is entered the court is to enter a plea of "not guilty", and the trial is to proceed as though the body corporate had pleaded "not guilty". (4) A representative of a body corporate need not be appointed under the body's seal. (5) A written statement that— (a) purports to be signed by one of the persons having the management of the affairs of the body corporate, and (b) contains a statement to the effect that a named person is the body's representative, is admissible as evidence that the named person has been so appointed. 11 Description of offences The description of any offence in the words of an Act or statutory rule or other document creating the offence, or in similar words, is sufficient in law. 12 Short description of certain offences (1) For the purposes of this or any other Act, a summary offence, or an indictable offence that may be dealt with summarily, is taken to be sufficiently stated or described if it is stated or described by the use of a short expression that describes the offence in general terms. (2) This section applies to a statement or description of an offence in any court attendance notice, warrant, subpoena, notice, order or other document. (3) Nothing in this section affects any other method of stating or describing an offence. (4) Nothing in this section affects any requirement made by or under this Act in relation to the form of a court attendance notice or any other document. 13 Venue in indictment (1) New South Wales is a sufficient venue for all places, whether the indictment is in the Supreme Court or any other court having criminal jurisdiction. (2) However, some district or place within, at or near which the offence is charged to have been committed must be mentioned in the body of the indictment. (3) Any such district or place is to be taken to be in New South Wales, and within the jurisdiction of the court, unless the contrary is shown. 14 Common informer (cf Fines and Penalties Act 1901 sec 4) A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons. 14A Proceedings for offences commenced by officers of ICAC or LECC (1) An officer of ICAC does not have the power to commence proceedings for an offence unless the Director of Public Prosecutions has advised the Independent Commission Against Corruption in writing that the proceedings may be commenced by an officer of ICAC. (2) An officer of LECC does not have the power to commence proceedings for an offence unless the Director of Public Prosecutions has advised the Law Enforcement Conduct Commission in writing that the proceedings may be commenced by an officer of LECC. (3) For the purposes of subsections (1) and (2), the Director of Public Prosecutions may liaise with the Independent Commission Against Corruption or Law Enforcement Conduct Commission, but is to act independently in deciding to advise that proceedings for the offence may be commenced. (4) In this section— officer of ICAC means a person acting in the capacity of a Commissioner, an Assistant Commissioner or officer of the Independent Commission Against Corruption. officer of LECC means an officer of the Law Enforcement Conduct Commission (within the meaning of the Law Enforcement Conduct Commission Act 2016). Part 2 Indictments and other matters 15 Application of Part (1) This Part applies, to the extent that it is capable of being applied, to all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with. (2) In this Part— indictment includes a court attendance notice or any other process or document by which criminal proceedings are commenced. 16 Certain defects do not affect indictment (1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds— (a) for the improper insertion or omission of the words "as appears by the record", "with force and arms", "against the peace", "against the form of the statute" or "feloniously", (b) for want of an averment of any matter unnecessary to be proved or necessarily implied, (c) for want of a proper or perfect venue or a proper or formal conclusion, (d) for want of any additional accused person or for any imperfection relating to any additional accused person, (d1) if the indictment is for an offence under the Crimes Act 1900 relating to the destruction or loss of a foetus, regardless of the gestational age of the foetus—for stating the name of the foetus, (e) for want of any statement of the value or price of any matter or thing, or the amount of damage or injury, if such value, price or amount is not of the essence of the offence, (f) for designating any person by the name of his or her office, or other descriptive appellation, instead of by his or her proper name, (g) except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly, (h) for stating an offence to have been committed on a day subsequent to the finding of the indictment, on an impossible day or on a day that never happened, (i) if the indictment was signed by an Australian legal practitioner who has been instructed to prosecute the proceedings to which the indictment relates on behalf of the Director of Public Prosecutions—for failure by the Director to authorise the Australian legal practitioner by order in writing under section 126 (2) to sign indictments for and on behalf of the Director. (2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of— (a) any alleged defect in it in substance or in form, or (b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant. Note. An adjournment may be obtained under section 40 where there is a variance between the evidence adduced and the offence charged in the application or order. 17 When formal objections to be taken (1) An objection to an indictment for a formal defect apparent on its face must be taken, by demurrer or motion to quash the indictment, before the jury is sworn. (2) The court before which the objection is taken may cause the indictment to be amended and, in that case, the trial is to proceed as if there had been no defect. 18 Judgment on demurrer to indictment The judgment against the accused person on demurrer is to be that the person "answer over" to the charge. 19 Traversing indictment (1) No traverse is to be allowed, or trial postponed, or time to plead to the indictment given, unless the court so orders. (2) However, if the court is of the opinion that the accused person ought to be allowed time, either to prepare for his or her defence or for any other reason, the court is to postpone the trial on such terms as it considers fit. 20 Amendment of indictment (1) An indictment may not be amended after it is presented, except by the prosecutor— (a) with the leave of the court, or (b) with the consent of the accused. (2) This section does not affect the powers of the court under section 21. (3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment. 21 Orders for amendment of indictment, separate trial and postponement of trial (1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case. (2) If of the opinion— (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person 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 the indictment. (3) If of the opinion that the postponement of an accused person's trial is expedient as a consequence of it having amended an indictment or ordered a separate trial of a count, the court may make such order as appears necessary. (4) An order under this section may be made either before trial or at any stage during the trial. (5) The following provisions apply if an order is made under this section for a separate trial or for the postponement of a trial— (a) if the order is made during the trial, the court may order that the jury be discharged from giving a verdict— (i) on the count or counts in respect of which the trial is postponed, or (ii) on the indictment, as the case may be, (b) the procedure on the separate trial of a count, and the procedure on the postponed trial, are to be the same in all respects (if the jury has been discharged) as if the trial had not commenced, (c) subject to the Bail Act 2013, the court may commit the accused person to a correctional centre. (6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes. 22 Amended indictment (1) If any indictment is amended, a note of the order for amendment is to be endorsed on the indictment, and the indictment in its amended form is to be treated as the indictment for the purposes of the trial and all proceedings in connection with or consequent on the trial. (2) Any verdict or judgment given after the amendment of an indictment is to have the same force and effect as if the indictment had originally been in its amended form. (3) If it is necessary at any time to draw up a formal record of an indictment, the record may be drawn up in the words and form of the amended indictment, without notice of the fact of the amendment. 23 Indictment may contain up to 3 similar counts (1) Up to 3 counts may be inserted in the same indictment, against the same person, for distinct offences of the same kind committed against the same person. (2) This section does not apply if more than 6 months have elapsed between the first and last of the offences. (3) Nothing in this section affects the right of the Crown to insert alternative counts in any indictment. 24 Accessories may be charged together in one indictment Any number of accessories (whether before or after the fact) may be charged with substantive serious indictable offences in the same indictment, and may be tried together, even though the principal offender is not included in the indictment, not in custody or not amenable to justice. 25 Indictment charging previous offence also In an indictment against a person for an offence committed after the person was convicted of some previous offence (whether indictable or otherwise) it is sufficient, after charging the subsequent offence, to state that the accused person was (at a specified time and place) convicted of the previous offence, without particularly describing the previous offence. 26 Description of written instruments If— (a) an indictment relates to an instrument that is written or printed, or partly written and partly printed, or (b) it is necessary to make an averment in an indictment with respect to an instrument that is written or printed, or partly written and partly printed, it is sufficient to describe the instrument by any name or designation by which it is usually known, or by its purport, without setting out a copy of the instrument, or otherwise describing the instrument, and without stating the value of the instrument. 27 Supreme Court rules may prescribe forms of indictments (1) Without limiting the rule-making powers conferred by the Supreme Court Act 1970, rules may from time to time be made under that Act prescribing forms of indictments, records, informations, depositions, convictions, warrants and processes in all courts for any offence. (2) Any form prescribed by those rules is taken to be sufficient for the purpose, and to sufficiently state the offence, for which it is prescribed. Part 3 Criminal proceedings generally 28 Application of Part and definition (1) This Part applies, to the extent that it is capable of being applied, to all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with. (2) In this Part— Judge includes a Magistrate, a Children's Court Magistrate, an Industrial Magistrate, the President or a judicial member of the Industrial Relations Commission and any other person of a class prescribed by the regulations for the purposes of this definition. 29 When more than one offence may be heard at the same time (1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances— (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances— (a) the accused persons and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice. 29A Tendency or coincidence—offences to be heard together (1) A court must hear and determine together proceedings for 2 or more offences if— (a) the offences are alleged to have been committed by the same person, and (b) the offences are— (i) charged in the same indictment, or (ii) listed for hearing on the same day and at the same place, and (c) the prosecution has given notice that it intends to rely on tendency evidence or coincidence evidence that relates to more than 1 of the offences. (2) This section is subject to section 21(2). 30 Change of venue In any criminal proceedings, if it appears to the court— (a) that a fair or unprejudiced trial cannot otherwise be had, or (b) that for any other reason it is expedient to do so, the court may change the venue, and direct the trial to be held in such other district, or at such other place, as the court thinks fit, and may for that purpose make all such orders as justice appears to require. 31 Abolition of accused person's right to make unsworn statement or to give unsworn evidence Any rule of law, procedure or practice that permits a person who is charged with the commission of a criminal offence to make an unsworn statement or to give unsworn evidence in answer to the charge is abolished. 32 Indemnities (1) The Attorney General may, if of the opinion that it is appropriate to do so, grant a person an indemnity from prosecution (whether on indictment or summarily)— (a) for a specified offence, or (b) in respect of specified acts or omissions. (2) If the Attorney General grants such an indemnity, no proceedings may thereafter be instituted or continued against the person in respect of the offence or the acts or omissions. (3) Such an indemnity may be granted conditionally or unconditionally. (4) Such an indemnity may not be granted in respect of a summary offence that is not a prescribed summary offence, unless the Attorney General has consulted the Minister administering the enactment or instrument under which the offence is created. 33 Undertakings (1) The Attorney General may, if of the opinion that it is appropriate to do so, give to a person an undertaking that— (a) an answer that is given, or a statement or disclosure that is made, by the person in the course of giving evidence in specified proceedings, or (b) the fact that the person discloses or produces a document or other thing in specified proceedings, being proceedings for an offence against a law of the State (whether an indictable offence or a summary offence), will not be used in evidence against the person. (2) If the Attorney General gives such an undertaking— (a) an answer that is given, or a statement or disclosure that is made, by the person in the course of giving evidence in the specified proceedings, or (b) the fact that the person discloses or produces a document or other thing in the specified proceedings, is not admissible in evidence against the person in any civil or criminal proceedings, other than proceedings in respect of the falsity of evidence given by the person. (3) Such an undertaking may be given co