Queensland: Justices Act 1886 (Qld)

Justices Act 1886 An Act to consolidate law about the powers and jurisdiction of justices and magistrates and to provide for proceedings before, and appeals from, justices and magistrates, and other matters Part 1 Preliminary 1 Short title This Act may be cited as the Justices Act 1886. 2 Note in text A note in the text of this Act is part of this Act. 3 [Repealed] 4 Definitions In this Act— address, for part 3 division 2A, see section 23A. appealed order, for part 9, division 1, see section 221. approved procedures, for computer warrants, see section 67(1). arresting officer, for part 4, division 10B, see section 83D. associated place, for part 6A, see section 178B. audio link facilities means facilities, including telephone, that enable reasonably contemporaneous and continuous audio communication between persons at different places. breach of duty means any act or omission (not being a simple offence or a non-payment of a mere debt) on complaint of which a Magistrates Court may make an order on any person for the payment of money or for doing or refraining from doing any other act. charge of an indictable offence means a charge of an indictable offence as such. clerk of the court means the person who for the time being is the clerk of every Magistrates Court at a place or places appointed under this Act for the holding of Magistrates Courts in question, and includes any assistant clerk of the court, deputy clerk of the court and any person who for the time being occupies or performs the duties of such office. complaint includes the terms 'information', 'information and complaint', and 'charge' when used in any Act, and means an information, complaint or charge before a Magistrates Court. computer warrant see section 67(1). correctional institution, for part 6A, see section 178B. court means a Magistrates Court. court cell, for part 6A, see section 178B. decision includes a committal for trial or for sentence, a conviction, order, order of dismissal or striking out or other determination. defendant— (a) for part 3, division 2A—see section 23A; or (b) otherwise—means a person complained against before a Magistrates Court or before justices for a simple offence, breach of duty or an indictable offence. disclosure obligation, for part 4, division 10B, see section 83D. disclosure obligation direction, for part 4, division 10B, see section 83D. domestic violence offence see the Criminal Code, section 1. examination of witnesses in relation to an indictable offence means an examination of witnesses or the taking of a statement of any person by justices in relation to a charge of an indictable offence. facility user, for part 6A, see section 178B. fine, for part 7, see section 179. general manager, for part 9, division 1, see section 221. hearing includes an examination of witnesses in relation to an indictable offence. incorporated legal practice see the Legal Profession Act 2007, schedule 2. indictable offence means an offence which may be prosecuted before the Supreme Court, the District Court, or other court having jurisdiction in that behalf, by indictment in the name of the Attorney-General or other authorised officer. indictment means a written charge for an indictable offence presented to a court having jurisdiction to try the accused person by the Attorney-General or other authorised officer. jurisdiction includes the place in which jurisdiction may be lawfully exercised. justices or justice means justices of the peace or a justice of the peace having jurisdiction where the act in question is, or is to be, performed, and includes a magistrate and, where necessary, a Magistrates Court. lawyer means an Australian lawyer who, under the Legal Profession Act 2007, may engage in legal practice in this State. notice of appeal, for part 9, division 1, see section 221. order includes any order, adjudication, grant or refusal of any application, and any determination of whatsoever kind made by a Magistrates Court, and any refusal by a Magistrates Court to hear and determine any complaint or to entertain any application made to it, but does not include any order made by justices committing a defendant for trial for an indictable offence, or dismissing a charge of an indictable offence or granting or refusing to grant bail and, in the last mentioned case, whether or not the justices are sitting as a Magistrates Court or to hear an examination of witnesses in relation to an indictable offence. party, for part 4, division 10B, see section 83D. police station includes a police office, watch-house, and lockup. primary court, for part 6A, see section 178B. prison, for part 9, division 1, see section 221. private complaint means a complaint made by a person who is not— (a) a public officer; or (b) in making the complaint, acting in— (i) the execution of a duty imposed on the person by law; or (ii) the proper administration of an Act or Commonwealth Act. proceeding, for part 6A, see section 178B. prosecution, for part 4, division 10B, see section 83D. public officer means— (a) an officer or employee of the public service of the State or the Commonwealth; or (b) an officer or employee of a statutory body that represents the Crown in right of the State or the Commonwealth; or (c) an officer or employee of a local government; who is acting in an official capacity. reciprocating court, for part 7, see section 179. reciprocating State or Territory, for part 7, see section 179. registry committal means a committal by the clerk of a court under an order under part 5, division 7A. relevant clerk of the court, for part 9, division 1, see section 221. relevant Magistrates Court, for part 9, division 1, see section 221. relevant registrar, for part 9, division 1, see section 221. respondent, for part 9, division 1, see section 221. RSPCA inspector means a person who— (a) holds an appointment as an inspector under the Animal Care and Protection Act 2001; and (b) is an employee of the Royal Society for the Prevention of Cruelty to Animals (Queensland) Limited. simple offence means any offence (indictable or not) punishable, on summary conviction before a Magistrates Court, by fine, imprisonment, or otherwise. summary conviction or conviction means a conviction by a Magistrates Court for a simple offence. video link facilities means facilities, including closed-circuit television, that enable reasonably contemporaneous and continuous audio and visual communication between persons at different places, including, for example, video link facilities. 5 General saving of powers of justices Nothing in this Act shall be construed to diminish or take away from any power or authority conferred on justices of the peace by any other Act, except so far as the provisions of this Act are inconsistent with the existence or exercise of such power or authority. Part 2 [Repealed] 6 [Repealed] 7 [Repealed] 8 [Repealed] 9 [Repealed] 10 [Repealed] 11 [Repealed] 12 [Repealed] 13 [Repealed] 14 [Repealed] 15 [Repealed] 16 [Repealed] 17 [Repealed] 18 [Repealed] Part 3 Jurisdiction Division 1 General provisions 19 General provision Whenever by any Act past or future, or by this Act, any person is made liable to a penalty or punishment, or to pay a sum of money, for any offence, act, or omission, and such offence, act, or omission is not by the Act declared to be an indictable offence, and no other provision is made for the trial of such person, the matter may be heard and determined by a Magistrates Court constituted, subject to this Act, by 2 or more justices in a summary manner under the provisions of this Act. 20 Authentication of acts of justices All summonses, warrants, convictions, and orders (not being by law authorised to be made by word of mouth only) shall be under the hands of the justices issuing or making the same. 21 Presumption Every act done or purporting to have been done by or before a justice shall be taken to have been done within the justice's jurisdiction without an allegation to that effect unless and until the contrary is shown. Division 2 Magistrates Courts 22 Continuance of Magistrates Courts (1) The Magistrates Courts, as formerly established as courts of record in Queensland, are continued in existence. (2) Each Magistrates Court is to have and use a seal with the words 'Magistrates Court of Queensland'. (3) Each Magistrates Court may have other seals required for the business and administration of the court. 22A Jurisdiction of Magistrates Courts Magistrates Courts are to have the civil, criminal and other jurisdiction— (a) that Courts of Petty Sessions or justices sitting in Petty Sessions had before the commencement of the Justices Acts Amendment Act 1964; and (b) that is conferred on them by this Act and other Acts. 22B Magistrates Courts districts (1) The Governor in Council may make regulations with respect to— (a) the appointment of districts, and divisions of districts, for the purposes of Magistrates Courts; and (b) the names of districts and divisions; and (c) the appointment of places for holding Magistrates Courts within districts and divisions; and (d) the transfer of proceedings, matters, documents, records and accounts from one Magistrates Court to another. (1A) Despite the appointment under subsection (1)(c) of a particular place within a district or division as a place for holding a Magistrates Court— (a) the Magistrates Court, if constituted by a magistrate, may sit at another place in the district or division; and (b) if it sits at another place in the district or division, the place is taken to have also been appointed under subsection (1)(c). (2) Two or more Magistrates Courts may be held at the same time at the same place. (3) Provision made by a proclamation under section 22 (as in force immediately before the commencement of this section) continues to have effect, after the commencement, as if it had been made by a regulation. (4) Provision made by an order in council under the Decentralisation of Magistrates Courts Act 1965, section 5 (as in force immediately before the commencement of this section) continues to have effect, after the commencement, as if it had been made by a regulation under this Act. 22C Appointment of clerks of the court (1) The chief executive may appoint an appropriate person to be clerk of the court, or an assistant clerk of the court, at 1 or more places. (2) A clerk of the court— (a) may discharge the functions of the office at each place for which the clerk is appointed; and (b) is the clerk of each Magistrates Court held at the place. 22D Principal clerk of courts (1) The Governor in Council may appoint a principal clerk of courts. (2) The principal clerk of courts is appointed under the Public Sector Act 2022. (3) The principal clerk of courts is appointed for all Magistrates Courts in Queensland. (4) The appointment of a person as principal clerk of courts is for the whole of Queensland, and the person must not be appointed for any particular place. (5) The principal clerk of courts may, for any place for which a clerk of the court or assistant clerk of the court is appointed under section 22C, discharge all the functions the clerk of the court or assistant clerk of the court may discharge. (6) The principal clerk of courts may give directions to each clerk of the court and assistant clerk of the court appointed under section 22C, and to any other officer employed in a registry of a Magistrates Court, about the discharge of the functions of the clerk of the court, assistant clerk of the court or other officer. 23 Vacancy in office of clerk of court etc. (1) If, in relation to a place appointed for holding a Magistrates Court, a clerk of the court is not appointed or is absent, a magistrate may discharge the duties of the clerk of the court. (2) Anything done by or in relation to a magistrate acting under subsection (1) is taken to have been done by the clerk of the court. (3) If a magistrate is discharging the duties of clerk of the court under subsection (1), the magistrate may require a police officer to perform, or assist in performing, a specified part of the duties. (3A) If, in relation to a place appointed for holding a Magistrates Court— (a) the person appointed as clerk of the court for the place is a police officer; and (b) there is no magistrate available at the place to discharge the duties of the clerk of the court during the clerk's absence from the place; a magistrate may require another appropriately qualified police officer to perform, or assist in performing, the duties or a specified part of the duties during the clerk's absence. (4) Anything done by or in relation to a police officer acting under subsection (3) or (3A) is taken to have been done by the clerk of the court. Division 2A Decentralisation of Magistrates Courts 23A Definitions for div 2A In this division— address, in relation to any person, means the place of residence or place of business or other address of that person. defendant means a person to whom a summons is directed upon a plaint or complaint. 23B Act has effect subject to division This Act has effect subject to this division. 23C Venue of hearing complaint to be determined subject to this section (1) Section 139 shall apply in respect of a complaint of a simple offence or breach of duty to which this subsection refers subject to the following provisions— (a) when a simple offence or breach of duty has been committed within a district and within 800m of the common boundary of 2 or more divisions of that district a complaint of such offence or breach may be heard and determined within any of those divisions; (b) when a simple offence or breach of duty has been committed within a district a complaint of such offence or breach may be heard and determined within a division of that district in which division the defendant resides or is reasonably believed by the complainant at the time of making the complaint to reside or be; (c) when a simple offence or breach of duty has been committed at a place which is not within any district but within 35km of a boundary of a division of a district which is not a common boundary between 2 or more divisions of that district a complaint of such offence or breach may be heard and determined within the division such boundary of which is nearest by direct measurement to the place of commission of such offence or breach but, subject to the following provisions of this Act, within no other division of that district or of any other district; (ca) however, where such an offence or breach has been committed at a place equidistant by direct measurement from such a boundary of 2 or more divisions (whether of the same district or different districts) a complaint of such offence or breach may be heard and determined in any of such divisions; (d) save as is prescribed by this Act a complaint of a simple offence or breach of duty committed within a division shall not be heard and determined within any other division of the same district or within a division of any other district. (2) No provision of subsection (1) shall be construed to prejudice the jurisdiction conferred by section 139 upon a court situated elsewhere than within a district. 23D Power of clerk of the court to adjourn hearings (1) If, before the time at which a defendant is required by a summons to appear within a division, it appears to the clerk of the court for such division that— (a) in the case of a summons issued upon a plaint or upon a complaint of a simple offence or breach of duty—a court within such division has jurisdiction to hear and determine the plaint or complaint in question; and (b) — (i) the hearing of the plaint or complaint cannot proceed or is not likely to proceed at the time and place at which the defendant is required by the summons to appear; or (ii) the manifest preponderance of convenience to the plaintiff or, as the case may be, complainant or to the defendant of hearing the plaint or complaint at some other time or place requires such an adjournment; or (iii) for such other reason as the clerk of the court considers sufficient the hearing should be so adjourned; the clerk of the court may, either upon application made to the clerk in that behalf or of the clerk's own motion, adjourn the hearing to a certain time and place, whether situated in that division or in some other division of the district, to be then appointed by the clerk of the court. (2) When a hearing is so adjourned the clerk of the court shall cause the time and place to which the hearing is adjourned to be stated in the presence and hearing of every party to the proceeding concerned or of the party's lawyer or agent who is then present and if any party to such proceeding is not then present either personally or by the party's lawyer or agent the clerk of the court shall, forthwith after such adjournment, give notice in writing to that party or, as the clerk of the court may elect, the party's lawyer or agent informing the person of— (a) the time and place to which the hearing is adjourned; and (b) the reason for the adjournment; and (c) the right of the party concerned to be heard at the adjourned hearing. (3) When a hearing is so adjourned the defendant shall not be obliged to appear at the time and place referred to in the summons in question but such summons shall thenceforth be read and construed as if the time and place to which such hearing is, for the time being, adjourned were appointed by such summons as the time and place at which the defendant is thereby required to appear. (4) The hearing as adjourned shall not commence at the appointed time and place unless the court is satisfied that the parties or their respective lawyers or agents have been given reasonable notice thereof. (5) A document purporting to be a certificate signed by the clerk of the court who last adjourned the hearing in question pursuant to this section as to the making of a statement in the presence and hearing of a party or the party's lawyer or agent of the time and place to which the hearing is adjourned shall upon its production in any proceeding and without further proof be received as evidence of the matter therein contained and a document purporting to be a duplicate original or copy of a notice last directed to any person in accordance with this section and endorsed with a certificate purporting to be signed by the person who served the original of such notice or, where such notice was sent by post, by the clerk of the court who last adjourned the hearing in question that— (a) the document is a duplicate original or, as the case may be, copy of the notice directed to the person named therein; and (b) the original of such notice was served upon such person personally on a date specified or, as the case may be, was posted on a date specified to the address appearing therein and such address was the address of such person last known to such clerk of the court; and (c) where the original of such notice was sent by post, in the ordinary course of post such original would have been delivered at such address on a date specified; shall, upon its production in any proceeding and without further proof, be received as evidence that the original of such notice was given to the person named therein, according to the certificate so endorsed and, where such original was sent by post, that the address appearing therein is the address of such person last known to such clerk and that such original was delivered to the address appearing therein on the date on which the same would be delivered in the ordinary course of post according to the certificate so endorsed. (6) Costs of and occasioned by any adjournment under this section may be ordered by the court hearing and determining the plaint or complaint to be paid by any party to any other party as to the court may appear just. (7) Where a hearing is duly adjourned under this section from one division to another division of a district— (a) the clerk of the court by whom the hearing is adjourned, unless the clerk is also clerk of the court for the division to which the hearing is adjourned, shall forthwith transmit to the clerk of the court for such division the plaint or complaint and summons and any other documents relating to the proceeding which have been filed with or received by the clerk of the court; and (b) the plaint or complaint and summons and other documents relating to the proceeding shall be kept and preserved by the clerk of the court for the division to which the hearing is adjourned as if the clerk were the clerk of the court at the place where the defendant is required by the summons to appear unless the hearing and determination of the complaint is further adjourned to another division of the district; and (c) the plaint or complaint may be heard and determined in the division to which the hearing is adjourned and all proceedings may be commenced, continued or completed and all acts, matters and things which are authorised, permitted or required by law to be done, executed or taken, whether for the purpose of the enforcement or variation of an order made in such a proceeding or any other purpose, may be done, executed, or taken as fully and effectually as if the hearing or order were a hearing by or, as the case may be, an order of a court at the place at which the defendant was originally required by the summons to appear. (8) The hearing of a plaint or complaint which has been adjourned under this section may be further adjourned from time to time under this section or any other provision of this Act or under any relevant provision of any other Act and the relevant provision, whether of this Act or such other Act, shall with all necessary adaptations, extend and apply accordingly. (9) A clerk of the court need not constitute a court for the purpose of exercising any power or function under this section, and may exercise in respect of a defendant to a complaint any of the powers which justices might exercise in respect of a defendant upon an adjournment under this Act apart from this division. (10) No provision of this section shall be construed to affect the powers or duties of a registrar of a court under the Magistrates Courts Rules 1960. Note— Now see the Uniform Civil Procedure Rules 1999—see the Magistrates Courts Act 1921, section 61. 23DA Further powers of clerk of the court (1) This section is in addition to, and does not limit, section 23D. (2) The clerk of the court has the following additional powers— (a) power to adjourn a matter before the court on terms decided by the clerk or stated in an application; (b) power to make any order a magistrate may make with the consent of all the parties to a matter. (3) However, the clerk of the court may exercise the powers mentioned in subsection (2) only if— (a) application for the adjournment or order is made to a Magistrates Court; and (b) all the parties to the matter consent in writing, personally or by their agent, to the exercise of the power. (4) When exercising a power under subsection (2)— (a) the parties to the matter need not be present; and (b) the clerk of the court is taken to constitute a Magistrates Court. 23E Court or justices may adjourn within or outside district (1) Notwithstanding the provisions of this Act or any other Act a court or justices sitting for any purpose at a place within a district may, in order to carry out such purpose, sit at any other place within such district or within an adjoining district and may, from time to time (whether before or after entering upon the purpose for which such court or, as the case may be, justices are then sitting)— (a) adjourn the proceeding to a certain time and place to be then appointed and stated in the presence and hearing of the party or parties then present or of their respective lawyers or agents then present; or (b) adjourn the proceeding and leave the time and place at which the proceeding is to be continued to be later determined by such court or, as the case may be, justices. (1A) However, a proceeding so adjourned shall not be continued at a time and place so determined unless the court or, as the case may be, justices are satisfied that the parties or their respective lawyers or agents have been given reasonable notice of such determination. (2) Upon such an adjournment the court or, as the case may be, justices may exercise in respect of a defendant to a complaint any of the powers which the court or justices might exercise in respect of a defendant upon an adjournment under this Act apart from this division. 23EA Additional powers of court or justices (1) This section is in addition to, and does not limit, any other provision of this Act. (2) A court or justices have the following additional powers— (a) power to give any direction the court or justices consider appropriate; (b) power to direct a party to file and serve stated documents, including affidavits, within a stated time; (c) power to make orders to which all the parties to a matter consent. (3) When exercising the power under subsection (2)(c), the parties to the matter need not be present. 23EB Management by clerk of the court of charge pending finalisation of proceeding under ex officio indictment (1) A court may, under this section, refer to the clerk of the court a charge before the court, but only if the defendant in relation to the charge— (a) is represented by a lawyer; and (b) is not in custody; and (c) is not in breach of any condition of the undertaking on which the defendant was granted bail. (2) A charge (the relevant charge) may be referred to the clerk of the court if— (a) it is a charge for an indictable offence; and (b) the prosecution and the defendant advise the court they are agreed that— (i) an indictment for the offence the subject of the relevant charge has been or is to be presented under the Criminal Code, section 561; or (ii) an indictment for another indictable offence (the other offence) has been or is to be presented under the Criminal Code, section 561, and the other offence arises out of the same set of circumstances alleged in relation to the relevant charge. (3) If the relevant charge is referred under this section— (a) the clerk of the court has the following functions— (i) keeping the relevant charge under review; (ii) referring the relevant charge back to the court if— (A) the clerk of the court considers this should be done to ensure the hearing of the relevant charge is not unnecessarily delayed; or (B) the prosecution or the defendant asks the clerk of the court to do so; and (b) the registrar of the court in which the indictment mentioned in subsection (2)(b)(i) or (ii) is presented must, within 1 calendar month after the relevant charge or the charge for the other offence is disposed of in that court, advise the clerk of the court of the fact. (4) If the clerk of the court is advised under subsection (3)(b), no further appearance is required in the Magistrates Court by any party to the proceeding for the relevant charge. (5) The functions of the clerk of the court under this section do not include any function in relation to bail. Note— See the Bail Act 1980, section 34BB (Varying bail for charge for indictable offence referred to clerk of the court under Justices Act 1886). (6) If the relevant charge is referred back to the court under subsection (3)(a)(ii), the clerk of the court must give reasonable notice, in writing, to all parties to the proceeding— (a) advising that the relevant charge has been referred back to the court; and (b) stating the time and place for the next hearing of the proceeding in the court. 23EC Conduct of proceeding by video link facilities or audio link facilities by court outside district or division (1) This section applies if— (a) a Magistrates Court (the original court) has jurisdiction under this Act or another Act to hear a proceeding, including a criminal proceeding; and (b) the original court is authorised under this Act or another Act (an authorising law) to conduct the proceeding using video link facilities or audio link facilities; and Examples of authorising laws— • part 6A of this Act • Evidence Act 1977, part 3A • Penalties and Sentences Act 1992, section 15A (c) a practice direction made by the Chief Magistrate provides for the proceeding to be conducted by an alternative court by video link facilities or audio link facilities under this section. (2) The alternative court may conduct the proceeding by using video link facilities or audio link facilities under the authorising law as if the alternative court— (a) had jurisdiction under the Act mentioned in subsection (1)(a) to hear the proceeding; and (b) were the original court for the purpose of the authorising law. (3) In this section— alternative court, in relation to a proceeding, means a Magistrates Court outside the district or division in which the proceeding would otherwise be required to be heard. 23F [Repealed] 23G [Repealed] Division 3 Powers of single justice 24 Acts by 1 justice One justice may receive a complaint, and grant a summons or warrant thereon, and may issue the justice's summons or warrant to compel the attendance of witnesses, and do all other necessary acts and matters preliminary to the hearing, notwithstanding that the case must be heard and determined by 2 or more justices. 25 After decision 1 justice may issue warrant of execution or commitment After a case has been heard and determined, 1 justice may issue thereon any warrant of execution or of commitment, and the justice who so acts need not be the justice or 1 of the justices by whom the case was heard and determined. 26 Warrants of execution after appeal After an appeal against a conviction or order has been decided against the appellant, any justice may issue a warrant of execution or commitment for execution of the same as if no appeal had been brought. Division 4 Hearing and quorum 27 Hearing of complaint (1) Subject to the provisions of any other Act, every complaint shall be heard and determined by a Magistrates Court constituted by 2 or more justices. (2) If any Act authorises a matter of complaint to be heard and determined by— (a) a Magistrates Court constituted by 1 justice; or (b) 1 justice; that matter of complaint may be heard and determined by a Magistrates Court constituted by 1 justice. 28 Majority to decide (1) When 2 or more justices are present and acting at the hearing of any matter and do not agree, the decision of the majority shall be the decision of the justices, and if they are equally divided in opinion, the case shall be reheard at a time to be appointed by the justices. (2) Despite subsection (1), on a complaint for an indictable offence, any 2 or more of the justices may commit the defendant for trial even though a majority of the justices are of the opinion that the defendant should be discharged. (3) If the defendant is committed under subsection (2), a memorandum of the dissent of the majority of the justices is to be made on, or attached to, the depositions. 29 When 2 justices required, must be present throughout the case Where a complaint must be heard and determined, or a conviction or order must be made, by 2 or more justices, the justices making the decision must be present and act together during the whole of the hearing and determination. Division 5 Magistrates 30 Magistrates (1) A magistrate constituting a Magistrates Court shall have power to do alone whatever might be done by 2 or more justices constituting a Magistrates Court, and shall have power to do alone any act which by any Act may or shall be done by 2 or more justices. (2) Unless otherwise expressly provided, when a magistrate is present at a place appointed for holding Magistrates Courts and is available to constitute any such court to be held at that place the court shall be constituted by the magistrate alone. (3) Nothing in subsection (2) shall be construed to abridge or prejudice the ministerial power of justices in taking an examination of witnesses in relation to an indictable offence, or the powers of justices to receive a complaint or to issue, grant or endorse a summons or warrant, to grant bail or to adjourn a hearing of a complaint of a simple offence or breach of duty. 31 [Repealed] Division 6 Extent of jurisdiction 32 Justices may act outside jurisdiction No act done by a justice shall be invalid merely by reason of the fact that at the time of doing such act the justice was outside the limits of the justice's jurisdiction, and it shall not be necessary that any conviction, order, or other proceeding, should appear to be made or done within the geographical limits of the jurisdiction of the justice making or doing the same. 33 Warrants of commitment and remand by justices of limited jurisdiction A warrant of commitment or of remand shall be valid throughout the State, notwithstanding that the prison or other place to which the defendant is committed or remanded, or any place into or through which the defendant is taken by virtue of the warrant, is outside the limits of the jurisdiction of the justice by whom the warrant is granted. 34 [Repealed] 35 Apprehended person may be taken before any justice (1) A person who apprehends a person (the offender) offending against law may take the offender before any justice. (2) The justice may deal with the person according to law, even though the justice does not have jurisdiction for the place where the offender was apprehended. 36 [Repealed] 37 Summons or warrant not avoided by death of justice etc. A warrant or summons issued by a justice shall not be avoided by reason of such justice dying or ceasing to hold office. 38 Order in lieu of mandamus (1) When a justice refuses to do any act relating to the duties of the justice's office as such justice the party requiring such act to be done may apply to the Supreme Court, or a judge thereof, upon affidavit of the facts, for an order calling upon such justice and also the party to be affected by such act to show cause why such act should not be done, and if after due service of such order good cause is not shown against it, the court or judge may make the same absolute with or without or upon payment of costs. (2) A justice upon being served with an order absolute shall obey the order and do the act required by it to be done. 39 Power of court to order delivery of certain property (1) If property— (a) has come into the custody or possession of a public officer— (i) in connection with any charge or prosecution; or (ii) otherwise in the course of their duty; or (b) has come into the possession of a Magistrates Court or clerk of the court, whether as an exhibit or otherwise, in connection with a summary proceeding under this Act; the Magistrates Court may, on application by a public officer or the clerk of the court or by a claimant of the property— (c) make an order for the delivery of the property to the person who appears to be its owner; or (d) if the owner cannot be ascertained—make such order in relation to the property as the court considers appropriate. (2) Subject to subsection (3), the order does not prevent a person from recovering the property by action from the person to whom the property is delivered under the order. (3) An action for the recovery of the property may only be brought within 6 months after the making of the order. (4) A regulation may make provision with respect to disposal of property mentioned in subsection (1) if— (a) the owner has not been ascertained; and (b) an order of a court of competent jurisdiction has not been made for the disposal of the property. (5) The regulation may authorise the sale of the property and the application of the proceeds of sale. (6) In this section— public officer— (a) in relation to a complaint of an offence against the Criminal Code, section 242 or 468, includes an RSPCA inspector; and (b) other than in relation to a thing seized by a police officer that is in the possession of the Crime and Corruption Commission, does not include a police officer. Division 7 Interruption of proceedings 40 Penalty for insulting or interrupting justices (1) A person who— (a) wilfully insults a justice or a witness or an officer of the court during his or her sitting as, or, as the case may be, attendance in a Magistrates Court or during his or her sitting or, as the case may be, attendance in any examination of witnesses in relation to an indictable offence or who is on his or her way to or from any such court or examination; or (b) wilfully misbehaves himself or herself in such a court or in the place where such an examination is being held; or (c) wilfully interrupts the proceedings of such a court or examination; or (d) unlawfully assaults, or wilfully obstructs a person in attendance at such a court or examination; or (e) without lawful excuse, disobeys a lawful order or direction of such court or justice; may by oral order of such court or justice, be excluded from such court or examination and, whether the person is so excluded or not, may be summarily convicted by such court or justice of contempt. (2) A person convicted under subsection (1) is liable to a maximum penalty of 84 penalty units or imprisonment for 1 year. (3) A person referred to in subsection (1)— (a) may be dealt with under this section without a complaint being made or a summons being issued in respect of the person; and (b) may be taken into custody by a police officer on order of such court or justice and without further warrant; and (c) may be called upon by such court or justice to show cause why the person should not be convicted of contempt under this section; and (d) may be dealt with by such court or justice under this section upon the court's or justice's own view, or upon the evidence of a credible witness. (4) A court or justice may, if it or the justice thinks fit, accept from any person convicted by it or the justice of contempt under this section, an apology for such contempt and may recommend that the Governor in Council remit or respite any fine or punishment imposed on such person in respect of such contempt. Part 4 General procedure Division 1A Prosecution disclosure 41 Prosecution disclosure The laws relating to prosecution disclosure for a relevant proceeding as defined in the Criminal Code, section 590AD are set out in the Criminal Code, chapter 62, chapter division 3. Division 1 Complaints 42 Commencement of proceedings (1) Except where otherwise expressly provided or where the defendant has been arrested without warrant, all proceedings under this Act shall be commenced by a complaint in writing, which may be made by the complainant in person or by the complainant's lawyer or other person authorised in that behalf. (1A) However, where a defendant is present at a proceeding and does not object, a further charge or an amended charge may be made against the defendant and be proceeded with although no complaint in writing has been made in respect thereof. (2) Where a defendant has been arrested on any charge and no complaint in writing has been made and in a case to which subsection (1A) applies particulars of the charge against the defendant shall be entered on the bench charge sheet. 43 Matter of complaint (1) Every complaint shall be for 1 matter only, and not for 2 or more matters, except— (a) in the case of indictable offences—if the matters of complaint are such that they may be charged in 1 indictment; or (b) in cases other than cases of indictable offences—if the matters of complaint— (i) are alleged to be constituted by the same act or omission on the part of the defendant; or (ii) are alleged to be constituted by a series of acts done or omitted to be done in the prosecution of a single purpose; or (iii) are founded on substantially the same facts; or (iv) are, or form part of, a series of offences or matters of complaint of the same or a similar character; or (c) when otherwise expressly provided. (2) When 2 or more matters of complaint are joined in the 1 complaint each matter of complaint shall be set out in a separate paragraph. (3) At the hearing of a complaint in which 2 or more matters of complaint have been joined but which does not comply with the provisions of this section— (a) if an objection is taken to the complaint on the ground of such noncompliance—the court shall require the complainant to choose 1 matter of complaint on which to proceed at that hearing; or (b) if no such objection is taken to the complaint—the court may proceed with the hearing and may determine the matters of complaint, and may convict or acquit the defendant in accordance with such determination. (4) If, at the hearing of a complaint, it appears to the court that a defendant may be prejudiced or embarrassed in the defendant's defence because the complaint contains more than 1 matter of complaint or that for any other reason it is desirable that 1 or more matters of complaint should be heard separately, the court may order that such 1 or more matters of complaint be heard separately. 43A Court may order particular complaints to be heard together (1) This section applies in relation to a complaint of a simple offence or breach of duty. (2) A court may order that 2 or more complaints against the same defendant be heard together if all the matters of complaint in the complaints are of a kind that could have been joined in 1 complaint under section 43. (3) Also, a court may order that 2 or more complaints against different defendants be heard together if the matters of complaint in the complaints are founded on— (a) substantially the same facts; or (b) facts so closely related that a substantial part of the facts is relevant to all the matters of complaint. 44 [Repealed] 45 [Repealed] 46 Description of persons and property Such description of persons or things as would be sufficient in an indictment shall be sufficient in complaints. 47 What is sufficient description of offence (1) The description of any offence in the words of the Act, order, by-law, regulation, or other instrument creating the offence, or in similar words, shall be sufficient in law. (2) Where a person is convicted of an offence by a Magistrates Court other than the Childrens Court and it is proved to the satisfaction of the court on oath or as prescribed by subsection (3) that there has been served upon the defendant with the complaint or a reasonable time before the time appointed for the appearance of the defendant a notice specifying any alleged previous conviction of the defendant for an offence proposed to be brought to the notice of the court in the event of the defendant's conviction for the offence charged and the defendant is not present in person before the court, the court may take account of any such previous conviction so specified as if the defendant had appeared and admitted it. (3) Any person who serves a notice specifying any alleged previous conviction of the defendant may serve, and document service of, the notice in the same way as is provided for the service and documenting of service of a notice to appear under the Police Powers and Responsibilities Act 2000. Note— For documenting service, see the Police Powers and Responsibilities Act 2000, section 389(2). (3A) Without limiting section 56, a document of service of a notice under subsection (3) is, on production to the court— (a) evidence of the matters contained in the document; and (b) sufficient proof of the service of the notice on the defendant. (4) Unless otherwise expressly provided, if, for the purpose of the assessment of penalty in respect of a simple offence, it is intended to rely upon a circumstance which renders the defendant liable, upon conviction, to a greater penalty than that to which the defendant would otherwise have been liable, that circumstance shall be expressly stated in the complaint made in respect of that offence. (5) However, if the circumstance is that the defendant has been previously convicted of an offence, the alleged previous conviction must be stated in a notice— (a) served with the complaint; or (b) served before the day appointed for the defendant's appearance; or (c) given to the defendant on the day appointed for the defendant's appearance. (6) For subsection (5)(c), if the notice of an alleged previous conviction is given to the defendant on the day appointed for the defendant's appearance, the court may, if the court is satisfied it is in the interests of justice to do so, adjourn the hearing of the proceeding to allow the defendant to consider the notice. (7) Subject to subsection (2), the circumstance that the defendant has been previously convicted of an offence may be relied on for the assessment of penalty for a simple offence whether or not a notice has been served or given under subsection (5). (8) If a notice has not been served or given under subsection (5), reliance on the circumstance that the defendant has been previously convicted of an offence does not render the defendant liable to a greater penalty than that to which the defendant would otherwise have been liable. (9) A complaint for an offence may state the offence is also a domestic violence offence. Note— See the Penalties and Sentences Act 1992, section 12A for when a conviction for the offence must also be recorded as a conviction for a domestic violence offence or entered in the offender's criminal history as a domestic violence offence. Division 2 Amendment of complaints, summonses and warrants 48 Amendment of complaint (1) If at the hearing of a complaint, it appears to the justices that— (a) there is a defect therein, in substance or in form, other than a noncompliance with the provisions of section 43; or (b) there is a defect in any summons or warrant to apprehend a defendant issued upon such complaint; or (c) there is a variance between such complaint, summons or warrant and the evidence adduced at the hearing in support thereof; then— (d) if an objection is taken for any such defect or variance—the justices shall; or (e) if no such objection is taken—the justices may; make such order for the amendment of the complaint, summons or warrant as appears to them to be necessary or desirable in the interests of justice. (2) Without limiting subsection (1), if the justices consider the offence charged in the complaint is also a domestic violence offence but the complaint does not include a statement to that effect, the court may order that the complaint be amended to state the offence is also a domestic violence offence. 49 Amendment If in making an order for the amendment of a complaint summons or warrant the justices consider that the defendant has been misled by the form in which the complaint summons or warrant has been made out or if it appears to them that the variance between the complaint summons or warrant and the evidence adduced at the hearing in support thereof is such that the defendant has been thereby deceived or misled, they may, and at the request of the defendant shall, upon such terms as they think fit, adjourn the hearing of the case to some future day, and in the meantime may commit the defendant, or whether or not the defendant is in custody, may grant the defendant bail or may suffer the defendant to go at large without bail. 50 Recording of amendment If an order is made for the amendment of a complaint, summons or warrant, the Magistrates Court or justices must— (a) immediately enter particulars of the amendment on the complaint, summons or warrant; and (b) give a copy of the order to the party against whom the order is made on request by the party. Division 3 How complaints are made 51 When complaint to be on oath and when not Unless otherwise expressly provided— (a) when it is intended to issue a warrant in the first instance against the party charged—the complaint in writing must be on oath, which oath may be made by the complainant; and (b) when it is intended to issue a summons in the first instance against the party charged—the complaint in writing need not be on oath. Division 4 Limitation of proceedings 52 Limitation of proceedings (1) In any case of a simple offence or breach of duty, unless some other time is limited for making complaint by the law relating to the particular case, complaint must be made within 1 year from the time when the matter of complaint arose. (2) However, if in relation to the matter of complaint— (a) a proceeding was previously commenced for an indictable offence against the Criminal Code or the Drugs Misuse Act 1986; and (b) the proceeding has been discontinued, or is to be discontinued by a Crown Law Officer as defined in the Criminal Code; complaint must be made within 2 years from the time when the matter of the complaint arose. (3) Also, subsection (1) does not apply to an offence if, under the Act providing for the offence, the Magistrates Court has jurisdiction for the offence regardless of when the matter of complaint arose. Example for subsection (3)— The Criminal Code, section 552F gives jurisdiction to a Magistrates Court that hears and decides a charge summarily under section 552A, 552B or 552BA of that Code despite the time that has elapsed from the time when the matter of complaint of the charge arose. Division 5 Summonses 53 When justice may issue summons (1) When a complaint is made before a justice that any person is guilty of or is suspected of having committed any indictable offence, simple offence, or breach of duty, within the jurisdiction of such justice, then such justice may issue the justice's summons. (2) No objection shall be taken or allowed to a summons issued upon a complaint under this section on the ground that— (a) the justice who issued the summons and the complainant were at the date of its issue— (i) officers of the same department, subdepartment, branch or section of a department of the Government of the Commonwealth or of the State; or (ii) employees of Brisbane City Council; or (iii) employees of the same local government within the meaning of the Local Government Act 2009; or (b) the justice who issued the summons was at the date of its issue, the complainant's lawyer, that lawyer's partner, or an employee of either of them, or a lawyer, director or employee of an incorporated legal practice that represented the complainant. 53A Power, after summons issued, to order mediation (1) If a summons has been issued under section 53, a magistrate or the clerk of the court for the place where the defendant is required to appear may order the complainant to submit the matter to mediation under the Dispute Resolution Centres Act 1990 (an order to mediate). (2) The magistrate or clerk of the court may make an order to mediate if— (a) the magistrate or clerk considers that the matter would be better resolved by mediation than by proceeding on the summons; or (b) the complainant consents to the order. (3) The clerk of the court may, at any time, refer a summons to a magistrate for directions as to whether or not to make an order. (4) An order to mediate must be in the approved form. (5) If an order to mediate is made— (a) the magistrate or clerk of the court must give notice of the order to the complainant and defendant; and (b) the summons may not be served and no other action may be taken on the summons, unless a magistrate or clerk of the court orders that the summons may be proceeded with under section 53B. 53B Further provision for a summons after mediation is ordered (1) If a magistrate or the clerk of the court for the place where the defendant is required to appear is satisfied that an event mentioned in subsection (2) has happened, the magistrate or clerk of the court may order that the summons may be proceeded with. (2) The events are— (a) if the complainant consented to the order—the complainant withdraws the consent; or (b) the matter of the complaint may not be mediated at a convenient place because of a decision made by the director of a dispute resolution centre under the Dispute Resolution Centres Act 1990, section 30(1); or (c) the defendant refuses to attend at, or participate in, a mediation session under that Act, or either party withdraws from a mediation session under that Act; or (d) the director of a dispute resolution centre declines under section 32(1) of that Act to consent to the acceptance of the matter of the complaint for mediation; or (e) a mediation session attended by the complainant and the defendant is terminated under section 32(2) of that Act. (3) A magistrate or clerk of the court may be satisfied about the happening of an event even if the only information before the magistrate or clerk is from the complainant. Note— Under the Police Powers and Responsibilities Act 2000, section 388(2)(a), a requirement in a notice to appear that a person appear before a court at a stated time and place is taken to be a summons issued under the Justices Act 1886. 54 Form of summons and filing of complaint and summons (1) Every summons shall be directed to the defendant and shall require the defendant to appear at a certain time and place before the Magistrates Court, or, as the case may require, before justices taking an examination of witnesses in relation to an indictable offence, to answer the complaint and to be further dealt with according to law. (1A) Every summons shall be served in accordance with this Act, and, where the summons has been issued on a complaint in writing, other than an entry of a charge on a bench charge sheet, a copy of such complaint shall be served with and in the same manner as the summons. (2) Every summons and, where the summons has been issued on a complaint in writing, other than an entry of a charge on a bench charge sheet, such complaint, shall, before the hearing is proceeded with, be filed, within 3 days of the summons being issued, with the clerk of the court at the place at which the defendant is required by the summons to appear, to be by such clerk kept and preserved. (3) Where a summons has not been served upon a defendant prior to the time at which the defendant is thereunder required to appear before a Magistrates Court, or, as the case may be, before justices taking an examination of witnesses in relation to an indictable offence, the clerk of the court at the place where the defendant is required by the summons to appear, being a justice, or other justice at such place authorised by such clerk, whether or not such clerk is a justice, may, from time to time and before, at or after the time appointed by the summons for the appearance of the defendant in accordance with the summons, extend the time so appointed. (4) Every such extension shall be made under the hand of the justice making the same, who shall alter the time appointed in the summons and shall endorse and sign a memorandum in the margin of the summons, as nearly opposite such alteration as is practicable, stating that the time appointed has been extended and the date to which such time has been extended. (5) If the complainant gives the clerk of the court written notice that the dispute has been resolved by mediation— (a) the filing fee paid on filing of the summons must be refunded; and (b) the summons may not be served, and no other action may be taken on the summons. 55 Ex parte proceedings Nothing herein contained shall oblige any justice to issue a summons in any case where the application for an order of justices is by law to be made ex parte. 56 Service of summonses (1) A summons shall be properly served upon the person to whom it is directed if it is served in accordance with this subsection, that is to say— (a) in the case of a summons directed to a person to appear to answer a complaint of a simple offence or breach of duty—by posting (by means of registered post) a copy thereof addressed to the person at the person's place of business or residence last known to the complainant at least 21 days before the date on which the defendant is, by the summons, required to appear; or (b) in all cases (including the case referred to in paragraph (a))—by delivering a copy thereof to the person personally or, if the person cannot reasonably be found, by leaving a copy thereof with some person for the person at the person's usual place of business or residence or place of business or residence last known to the person who serves the summons. (2) Save where it appears that the person to whom a copy of a summons was posted addressed to the person at an address in this subsection specified was not, to the knowledge of the complainant, at the time of posting, residing or carrying on business at such address, it shall be sufficient compliance with subsection (1)(a) if the copy summons is addressed to an address as follows— (a) in the case of an offence arising out of the driving or use of a motor vehicle or an attempt so to do—the address appearing as the address of the person on a driver licence produced by the person at or about the time of the alleged offence or upon the investigation thereof; (b) in the case of an offence alleged against a person as owner of a vehicle required to be registered under the Transport Operations (Road Use Management) Act 1995—the address appearing in the current certificate of registration of the vehicle under that Act, as the address of that person; (c) in the case of any other offence or breach of duty—the address appearing as the address of the person in any licence or registration for the time being in force pertaining to such person or to any property of which the person appears to be the owner or occupier and which licence or registration such person holds or has effected under the Act against or under a provision of which the offence or breach is alleged to have been committed. (3) The person who serves a summons shall either— (a) attend personally before the Magistrates Court, or, as the case may be, the justices taking the examination of witnesses in relation to an indictable offence, at the place and time for hearing mentioned in the summons and, if necessary, at any extended time therefore, to depose, if necessary, to the service thereof; or (b) attend before any justice of the peace having jurisdiction in the State or part of the State or part of the Commonwealth in which such summons was served and depose, on oath and in writing endorsed on a copy of the summons, to the service thereof. (4) Where a summons is served as prescribed by subsection (1)(a)— (a) the person who serves the summons shall, in the person's deposition as to service endorsed on a copy of the summons under subsection (3), state the time and place at which the person posted the copy of the summons; and (b) the complainant shall depose, on oath and in writing endorsed on the copy of the summons endorsed under subsection (3), that the address to which a copy of the summons was posted is (if such be the case) the defendant's address last known to the person and as to the person's means of knowledge. (5) Every such deposition shall, upon production to the Magistrates Court by which or to the magistrate by whom the complaint upon which the summons issued, is heard, or, as the case may be, to the justices who take the examination of witnesses in relation to an indictable offence in respect of that complaint, be evidence of the matters contained therein and be sufficient proof of the service of the summons on the defendant. (6) Where proof is required in any proceeding of the service of a document which— (a) pursuant to any enactment or rule of law may be served in the same manner as a summons may be served under this Act; or (b) is served at the same time as, and in connection with, a summons served under this Act; the provisions of subsection (1) shall apply and be construed as if a reference in that subsection to a summons were a reference to such a document. (7) The person who serves the document may attend before any justice having jurisdiction in the State or part of the State or part of the Commonwealth in which such document was served and depose on oath and in writing endorsed on the document to the service thereof. (8) The deposition made under subsection (7) is, on production to the Magistrates Court or justices— (a) evidence of the matters contained in the deposition; and (b) sufficient proof of the service of the document on the defendant. (9) In this section— motor vehicle see the Transport Operations (Road Use Management) Act 1995. 56A Right of entry to serve summons (1) Subject to subsection (3), a public officer, and a person acting in aid of the public officer, may enter, and stay for a reasonable time in or on a place for the purpose of serving a summons. (2) The officer must produce the officer's identification to any person requesting proof of the officer's authority to be in or on the place. (3) If the place is premises, or the part of premises, used exclusively for residential purposes, a public officer, and a person acting in aid of the public officer, may enter the place only with the consent of the occupier. Division 6 Warrants and arrest without warrant 57 Cases in which warrants may be issued If a complaint is made before a j