South Australia: Criminal Procedure Act 1921 (SA)

South Australia Criminal Procedure Act 1921 An Act to make provision for the procedures of courts in criminal proceedings and for other purposes. Contents Part 1—Introductory 1 Short title 4 Interpretation 5 Classification of offences 6 Powers of Supreme Court may be exercised by a Judge in Chambers 7 Abolition of rule as to disputed title Part 3—General procedure 20 Form of warrant 22 Rules in respect of summonses 22A Description of offence 27 Service 27B Hearing on a written plea of guilty 27C Hearing if defendant fails to appear 28 Proof by affidavit of service etc 29 Assistance of counsel Part 4—Summary jurisdiction Division 2—Information and subsequent proceedings 49 Information 51 Joinder and separation of charges 52 Limitation on time in which proceedings may be commenced 54 Allegations and descriptions in informations and proceedings 56 Exceptions or exemptions need not be specified or disproved by informant 57 Issue of summons by Magistrates Court 57A Rules may make provision for written guilty pleas 58 Issue of warrant 59 Defendant to be brought before Magistrates Court 60 Forms of custody etc Division 3—Hearing of summary offence 61 Sittings to be in open court but witnesses and other persons may be ordered to leave the Court 62 Proceedings on non-appearance of defendant 62A Power to proceed in absence of defendant 62B Powers of Magistrates Court on written plea of guilty 62BA Proceedings where defendant neither appears nor returns written plea of guilty 62C Proceedings in absence of defendant 62D Proof of previous convictions 63 Non-appearance of informant 64 If both parties appear, Magistrates Court to hear and determine the case 67 When defendant pleads guilty, court to convict or make an order 68 Procedure on plea of not guilty 69 After hearing parties, Magistrates Court to convict or dismiss 69A Examination of defendant Division 4—Judgment 70 Conviction to be minuted 70A Convictions where charges joined in information 70B Conviction for attempt where full offence charged 71 Order and certificate of dismissal 76A Power to set aside conviction or order 76B Correction of conviction or order Division 5—Non‑association and place restriction orders 77 Interpretation 78 Non‑association and place‑restriction orders 79 Non‑association and place restriction orders not to restrict certain associations or activities 80 Issue of non‑association or place restriction order in absence of defendant 81 Service 82 Variation or revocation of non‑association or place restriction order 83 Contravention of non‑association and place restriction orders Division 7—Restraining orders 99AA Paedophile restraining orders 99AAB Power to conduct routine inspection of computer etc 99AAC Child protection restraining orders 99C Issue of restraining order in absence of defendant 99E Service 99F Variation or revocation of restraining order 99G Notification of making etc of restraining orders 99H Registration of foreign restraining orders 99I Offence to contravene or fail to comply with restraining order 99J Applications by or on behalf of child 99K Burden of proof 99KA Special restrictions relating to child protection restraining order proceedings Division 8—Bushfire offender monitoring orders 99L Court may make monitoring order Part 5—Indictable offences Division 1—Informations 100 Informations charging indictable offences 101 Laying of information 102 Joinder and separation of charges 103 DPP may lay information in superior court Division 2—Pre-committal hearings etc 104 Securing attendance in Magistrates Court 105 Pre-committal hearings and documents 106 Indictable matters commenced by SA Police 107 Pre-committal subpoenas Division 3—Committal proceedings 108 Division not to apply to certain matters 109 Committal proceedings generally 110 Committal appearance 111 Committal brief etc 112 Notices relating to committal proceedings 113 Conduct of answer charge hearing 114 Taking evidence at committal proceedings 115 Evaluation of evidence at committal proceedings Division 3A—Pleas to alternative offences and attempts in the Magistrates Court 115A Pleas to alternative offences and attempts in the Magistrates Court Division 4—Forum for trial or sentence 116 Forum for sentence 117 Forum for trial 118 Change of forum 119 Change of plea following committal for sentence Division 5—Procedure following committal for trial or sentence 120 Fixing of arraignment date and remand of defendant 121 Material to be forwarded by Registrar 122 Prosecution may decline to prosecute 123 Case statements 124 Expert evidence and evidence of alibi 125 Failure to comply with disclosure requirements 126 Subpoenas 127 Prescribed proceedings Division 6—Pleas and proceedings on trial in superior court 128 Objections to informations in superior court, amendments and postponement of trial 129 Plea of not guilty and refusal to plead 130 Form of plea of autrefois convict or autrefois acquit 131 Certain questions of law may be determined before jury empanelled 132 Determinations of court binding on trial judge 133 Conviction on plea of guilty of offence other than that charged 134 Power to require notice of intention to adduce certain kinds of evidence 135 Inspection and copies of statements 136 Defence to be invited to outline issues in dispute at conclusion of opening address for the prosecution 137 Right to call or give evidence 138 Right of reply 139 Postponement of trial 140 Verdict for attempt where full offence charged Part 6—Limitations on rules relating to double jeopardy Division 1—Preliminary 141 Interpretation 142 Meaning of fresh and compelling evidence 143 Meaning of tainted acquittal 144 Application of Part Division 2—Circumstances in which police may investigate conduct relating to offence of which person previously acquitted 145 Circumstances in which police may investigate conduct relating to offence of which person previously acquitted Division 3—Circumstances in which trial or retrial of offence will not offend against rules of double jeopardy 146 Retrial of relevant offence of which person previously acquitted where acquittal tainted 147 Retrial of Category A offence of which person previously acquitted where there is fresh and compelling evidence 148 Circumstances in which person may be charged with administration of justice offence relating to previous acquittal Division 4—Prohibition on making certain references in retrial 149 Prohibition on making certain references in retrial Part 6A—Appeals Division 1—Appeal against sentence 150 Appeal against sentence Division 2—Other appeals 151 Interpretation 152 Court to decide according to opinion of majority 153 Reservation of relevant questions 154 Case to be stated by trial judge 155 Powers of Court of Appeal on reservation of question 156 Costs 157 Right of appeal in criminal cases 158 Determination of appeals in ordinary cases 159 Second or subsequent appeals 160 Powers of Court in special cases 161 Right of appeal against ancillary orders 162 Revesting and restitution of property on conviction 163 Jurisdiction of Court of Appeal 164 Enforcement of orders 165 Appeal to Court of Appeal 166 Supplemental powers of Court 167 Presence of appellant or respondent on hearing of appeal 168 Director of Public Prosecutions to be represented 169 Costs of appeal 170 Admission of appellant to bail and custody when attending Court 171 Duties of registrar with respect to notices of appeal etc 172 Notes of evidence on trial Division 3—References on petitions for mercy 173 References by Attorney-General Part 7—Supplementary provisions 175 Proceedings other than State criminal proceedings 176 Overlapping offences 177 Proceedings against corporations 178 Defects cured by verdict 179 Forfeiture abolished 180 Orders as to firearms and offensive weapons 181 Charges 182 Orders, warrants etc 183 Remand to training centre 184 Application may be made to Court for transfer to training centre 187AA Cancellation of unexecuted warrants 187A Proof of convictions or orders 188 Registration of orders for the purpose of enforcement 189 Costs generally 189A Costs payable by defendant in certain criminal proceedings 189B Costs in pre-committal and committal proceedings 189C Costs against informant in proceedings for restraining order 189D Costs—delay or obstruction of proceedings 190 Witness fees 191 Fees 191A Review 192 Regulations Legislative history The Parliament of South Australia enacts as follows: Part 1—Introductory 1—Short title This Act may be cited as the Criminal Procedure Act 1921. 4—Interpretation (1) In this Act, unless inconsistent with the context— answer charge hearing—see section 109; case statement means a defence case statement or a prosecution case statement; the Chief Magistrate means the person for the time being holding, or acting in, the office of the Chief Magistrate under the Magistrates Act 1983; cognitive impairment includes— (a) a developmental disability (including, for example, an intellectual disability, Down syndrome, cerebral palsy or an autistic spectrum disorder); (b) an acquired disability as a result of illness or injury (including, for example, dementia, a traumatic brain injury or a neurological disorder); (c) a mental illness; defence case statement—see section 123; defendant means person charged with any offence or against whom relief is sought or granted; foreign restraining order means an order made under a law of another State or a Territory of the Commonwealth or New Zealand declared by regulation to be a law corresponding to Division 7 of Part 4; investigating officer means— (a) an officer of the police force; or (b) a person authorised under an Act to investigate offences; major indictable offence means any indictable offence except a minor indictable offence; minor indictable offence—see section 5; offence of violence means an offence where the offender— (a) uses a weapon, or threatens to use a weapon, against another; or (b) inflicts serious harm on another, or threatens to inflict serious harm on another, for the purpose of committing the offence, or escaping from the scene of the offence; personal service—see subsection (3)(a); the Principal Registrar means the Principal Registrar of the Magistrates Court; prosecution case statement—see section 123; Registrar means the Principal Registrar or any other Registrar of the Magistrates Court; restraining order means an order made under Division 7 of Part 4; rules means the rules of the Magistrates Court; sensitive material—see section 67H of the Evidence Act 1929; sensitive material notice—see section 67I of the Evidence Act 1929; sentencing law means the Criminal Law (Sentencing) Act 1988 or an Act enacted in substitution for that Act; sexual offence means an offence under the Criminal Law Consolidation Act 1935 of the following kind: (a) rape; or (ab) compelled sexual manipulation; or (b) indecent assault; or (ba) persistent sexual exploitation of a child or persistent sexual abuse of a child; or (c) any offence involving unlawful sexual intercourse or an act of gross indecency; or (ca) an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal Law Consolidation Act 1935; or (d) incest; or (e) any attempt to commit or assault with intent to commit, any of the foregoing offences; Special Act means statute, rule, regulation, or by-law authorising the making of the conviction or order, or the determination or adjudication in question, or otherwise specially applicable to the case; summary offence—see section 5; telephone includes any telecommunication device. (2) A reference in the provisions of this Act other than Part 7 to a solicitor shall be deemed to include a reference to a law clerk articled to the solicitor and appearing on the solicitor's instructions. (3) Subject to the rules, for the purposes of this Act, unless the contrary intention appears— (a) a reference to a summons, notice or other document, or documentary material, being served personally includes service by means described in section 27(1)(a) and (b); and (b) a reference to a summons, notice or other document, or documentary material, being served by post includes service by means described in section 27(1)(c), (d) and (e). 5—Classification of offences (1) Offences are divided into the following classes: (a) summary offences; (b) indictable offences—comprising minor indictable offences and major indictable offences. (2) A summary offence is— (a) an offence that is not punishable by imprisonment; (b) an offence for which a maximum penalty of, or including, imprisonment for two years or less is prescribed; (ba) an offence against Part 4 of the Criminal Law Consolidation Act 1935 involving $2 500 or less not being— (i) an offence of arson or causing a bushfire; or Note— See sections 85 and 85B of the Criminal Law Consolidation Act 1935. (ii) an offence of violence; or (iii) an offence that is 1 of a series of offences of the same or a similar character involving more than $2 500 in aggregate; (c) an offence against Part 5 of the Criminal Law Consolidation Act 1935 involving $2 500 or less not being— (ai) an offence against Division 3 of that Part (robbery); or (i) an offence of violence; or (ii) an offence that is one of a series of offences of the same or a similar character involving more than $2 500 in aggregate, but an offence for which a maximum fine exceeding twice a Division 1 fine is prescribed is not a summary offence. (3) All offences apart from summary offences are indictable and of these— (a) the following are minor indictable offences: (i) those not punishable by imprisonment but for which a maximum fine exceeding twice a Division 1 fine is prescribed; (ii) those for which the maximum term of imprisonment does not exceed 5 years; (iii) those for which the maximum term of imprisonment exceeds 5 years and which fall into one of the following categories: (A) an offence involving interference with, damage to or destruction of property where the loss resulting from commission of the offence does not exceed $30 000; (AB) an offence involving a threat to interfere with, damage or destroy another person's property where, if the threat had been carried out, the loss would not have exceeded $30 000; (B) an offence against section 24(2) of the Criminal Law Consolidation Act 1935 (recklessly causing harm to another); (C) an offence against section 56 of the Criminal Law Consolidation Act 1935 (indecent assault) (not being an offence committed against a child under the age of 14 years); (D) an offence involving $30 000 or less against Part 5 of the Criminal Law Consolidation Act 1935, other than an offence against Division 3 (robbery) or an offence of violence; (E) an offence against section 169(1) or 170(1) of the Criminal Law Consolidation Act 1935 (serious criminal trespass etc) where the offence is a basic offence within the meaning of that Act and the intended offence is an offence of dishonesty (not being an offence of violence) involving $30 000 or less or an offence of interference with, damage to or destruction of property involving $30 000 or less; and (b) all other indictable offences are major indictable offences. (3a) For the purposes of the above classifications, an offence against section 85 or Part 5 of the Criminal Law Consolidation Act 1935 includes— (a) an offence of attempting to commit such an offence; or (b) an offence of aiding, abetting, counselling or procuring such an offence; or (c) an offence of conspiring to commit such an offence; or (d) an offence of being an accessory after the fact to such an offence. (4) For the purposes of the above classifications, an offence will be taken to involve a particular sum of money if that sum represents— (a) the amount or value of the benefit that the offender would have gained through commission of the offence; or (b) the amount of the loss that would have resulted from commission of the offence, assuming that the offence had been successfully completed and the offender had escaped detection. (5) If a law prescribes differential maximum penalties, then for the purposes of classifying the offence in accordance with the above rules, it will be taken to create separate offences which are (where necessary) to be separately classified in accordance with the above rules. (6) Where an offence may be either a summary offence or an indictable offence according to the circumstances surrounding its commission, or the antecedents of the defendant, and the offence is designated as a summary offence in the information charging the offence, then, subject to subsection (8), the circumstances and the defendant's antecedents will be conclusively presumed to be such as to make the offence a summary offence. (7) Where an offence may be either a minor indictable offence or a major indictable offence according to the circumstances surrounding its commission, or the antecedents of the defendant, and the offence is classified as a minor indictable offence in the information charging the offence, then, subject to subsection (8), the circumstances and the defendant's antecedents will be conclusively presumed to be such as to make the offence a minor indictable offence. (8) A defendant may, in accordance with the rules, challenge the classification of an offence in the information charging the offence and for the purposes of such a challenge the above presumptions do not apply. (9) Where a summary offence is erroneously dealt with as an indictable offence or a minor indictable offence is erroneously dealt with as a major indictable offence, the proceedings are not invalid but any penalties imposed should conform with what would be appropriate if the offence had been correctly classified at the inception of the proceedings. (10) If the Act under which an offence is created classifies an offence in a manner inconsistent with this section, that classification prevails. 6—Powers of Supreme Court may be exercised by a Judge in Chambers The authority and jurisdiction by this Act vested in the Supreme Court may, subject to any rules or orders of such Court in relation thereto, be exercised by a Judge of such Court sitting in court or in chambers. 7—Abolition of rule as to disputed title A court is not prevented from trying an offence by reason of the fact that the trial involves a dispute as to the title to property. Part 3—General procedure 20—Form of warrant (1) Every warrant for the apprehension of a defendant shall— (a) state shortly the matter of the information upon which it is founded; and (b) name or otherwise describe the defendant; and (c) order the person or persons to whom it is directed to apprehend the defendant and bring him before the Magistrates Court to answer the charge contained in the information, and to be further dealt with according to law. (2) The warrant may be directed specially to any constable or other person by name, or generally to all constables and peace officers of the State, or both specially and generally as aforesaid; and where the warrant is directed generally it shall be lawful for any constable or other peace officer to execute such warrant in like manner as if the same had been specially directed to him by name. (3) It shall not be necessary to make the warrant returnable at any particular time, but the same shall remain in force until it is executed. (4) Every warrant may be executed by apprehending the defendant at any place within the State. 22—Rules in respect of summonses (1) The Magistrates Court may make rules to provide for summonses for the appearance of persons before the Court, including to provide for the manner in which, and by whom, the summons is to be issued, given, sent to, or served, on the person. (2) Without limiting the generality of subsection (1), a summons for the appearance of a person— (a) must be in a form prescribed by the rules; and (b) must be directed to the person; and (c) must state in brief the matter or matters in relation to which the person is charged or is to be charged; and (d) must require the person to appear before the Magistrates Court at a specified time and place to answer to the charge and to be dealt with according to law; and (e) may include any other information that is, in the opinion of the Court, necessary or expedient for the purposes of this Act or any other Act or law. 22A—Description of offence (1) Every information, summons, warrant, or other document under this Act in which it is necessary to state the matter charged against any person shall be sufficient if it contains a statement of the specific offence with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge. (2) The statement of the offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and, if the offence charged is one created by statute, shall contain a reference to the section of the statute creating the offence. (3) After the statement of the offence, necessary particulars of the offence shall be set out in ordinary language, in which the use of technical terms shall not be required. 27—Service (1) Subject to this Act or any other Act, and the regulations or the rules, a summons, notice or other document required or authorised to be issued, given or sent to, or served on, a person under this Act may— (a) be given personally to the person; or (b) be left for the person at the person's last known residential, business or (in the case of a body corporate) registered address with someone apparently over the age of 16 years; or (c) be posted in an envelope addressed to the person at the person's last known residential, business or (in the case of a body corporate) registered address (in which case the summons, notice or other document will be taken to have been served at the time when it would, in the ordinary course of post, have reached the address to which it was posted); or (d) for the purpose of particular proceedings—be transmitted by fax or email to a fax number or email address provided by the person or a legal practitioner representing the person (in which case the summons, notice or other document will be taken to have been given or served at the time of transmission); or (e) for the purpose of particular proceedings—be made available to the person by some other electronic means, including (for example)— (i) by transmission to an Internet address provided by the person or a legal practitioner representing the person (in which case the summons, notice or other document will be taken to have been given or served at the time of transmission); or (ii) by means of providing (by means of an email transmitted to an email address provided by the person or a legal practitioner representing the person) a link to an Internet address from which the person or legal practitioner may access or download the summons, notice or other document (in which case the summons, notice or other document will be taken to have been given or served at the time of transmission of the email); or (iii) by means of a data storage device from which the summons, notice or other document can be accessed or downloaded— (A) being given personally to the person or a legal practitioner representing the person (in which case the summons, notice or other document will be taken to have been given or served at the time the data storage device is given to the person or legal practitioner, as the case may be); or (B) being left for the person or a legal practitioner representing the person— • at the person's last known residential, business or (in the case of a body corporate) registered address with someone apparently over the age of 16 years; or • at the last known business address of the legal practitioner representing the person with someone apparently over the age of 16 years, (in which case the summons, notice or other document will be taken to have been given or served at the time the data storage device is so left); or (C) being sent by registered post in an envelope— • addressed to the person at the person's last known residential, business or (in the case of a body corporate) registered address; or • addressed to a legal practitioner representing the person at the legal practitioner's business address, (in which case the summons, notice or other document will be taken to have been given or served at the time when proof of receipt is given on delivery of the envelope to the address to which it was posted). (2) A summons, notice or other document required or authorised to be given or sent to, or served on, a person under this Act may only be given or sent to, or served on, the person by means referred to in subsection (1)(d) or (e) if, before so doing, it has been ascertained that the person or legal practitioner will be readily able to access or download and (if required) print, the summons, notice or other document. (3) Without limiting the generality of paragraph (e) of subsection (1), the regulations or the rules may prescribe electronic means of service other than those referred to in that paragraph for the purposes of this Act. (4) Without limiting the effect of the preceding subsections, a summons, notice or other document required or authorised to be given or sent to, or served on, a person by this Act may, if the person is a company or registered body within the meaning of the Corporations Act 2001 of the Commonwealth, be served on the person in accordance with that Act. (5) If a summons, notice or other document is given or sent to, or served, otherwise than by being given personally to the person to whom it is to be given or sent, or on whom it is to be served, the Magistrates Court may require the summons, notice or other document to again be given or sent to, or re‑served on, the person if there is reasonable cause to believe that the summons, notice or other document has not come to the notice of the person. 27B—Hearing on a written plea of guilty If— (a) an information and summons in the form required by the rules under section 57A is served on the defendant named in the summons in accordance with the rules; and (b) the defendant fails to appear in obedience to the summons but pleads guilty in writing to the offence to which that summons relates, the Magistrates Court may proceed to deal with the matter in the manner provided by sections 62B and 62C. 27C—Hearing if defendant fails to appear (1) Subject to this section, if a summons is served in accordance with section 27 on the defendant named in the summons and— (a) either the defendant fails to appear in obedience to the summons; or (b) the defendant fails to plead guilty in the manner provided for under section 57A to the offence to which the summons relates, the Magistrates Court may— (c) proceed in the absence of the defendant to the hearing of the information to which the summons relates (and, despite section 62C, adjudicate the matter as if the defendant had personally appeared in obedience to the summons); or (d) order that the information be heard in the absence of the defendant and adjourn the hearing (and, on the adjourned hearing, proceed in the manner provided for in paragraph (c)). (2) If a hearing is adjourned under subsection (1)(d), it is not necessary for the Magistrates Court to be constituted of the same judicial officer at the adjourned hearing. (3) On conviction after a hearing under subsection (1), the Magistrates Court must not— (a) impose any penalty other than a fine; or (b) disqualify the defendant from holding or obtaining a licence to drive a motor vehicle; or (c) treat the offence as other than a first offence unless the informant proves that the defendant has previously been convicted of such an offence; or (d) make an order for payment of compensation of an amount that exceeds an amount specified in the information, unless— (e) the summons was given personally to the defendant; or (f) — (i) the Court has first adjourned the hearing of the information to a specified time and place; and (ii) the defendant is personally served, not less than 14 days before the time to which the hearing has been adjourned, with a notice informing the defendant of— (A) the conviction; and (B) the time and place to which the hearing has been adjourned; and (C) the provisions of section 76A; and (iii) the defendant does not, within 14 days after the date of service of the notice on the defendant, apply in accordance with section 76A, for an order setting aside the conviction. (4) If a defendant, not being a defendant who has been personally served with a notice under subsection (3)(f), is convicted after a hearing under subsection (1), the Registrar must, within 7 days of that conviction, serve on the defendant a notice setting out the particulars of the conviction, the penalty imposed and section 76A. (5) If a defendant who has been personally served with a notice under subsection (3)(f) is convicted after a hearing under subsection (1), the Registrar must, within 7 days after the imposition of a penalty in respect of that conviction, serve on the defendant a notice setting out the particulars of that conviction and the penalty imposed. 28—Proof by affidavit of service etc (1) In any proceeding, without prejudice to any other mode of proof— (a) the service on any person of any summons, notice, process, or document required or authorised to be served; or (b) the handwriting of any officer or person on any warrant, summons, notice, process, or document; or (c) the payment or tender, to any person summoned to attend as a witness, of any sum in respect of the costs or expenses of such attendance, may be proved by an affidavit taken before a justice or before a commissioner for taking affidavits in the Supreme Court: Provided that the Magistrates Court may require the person making such affidavit to be called as a witness, or require further evidence of the facts. (2) Service may also be proved by tender of a certificate of service signed by the person who effected service. (3) A document appearing to be an affidavit or certificate under this section may be accepted, without further evidence, as proof of the matters stated in it. (4) A person who gives a false certificate under this section is guilty of an offence. Maximum penalty: Imprisonment for two years. 29—Assistance of counsel A party to proceedings to which this Act applies may be represented by counsel. Part 4—Summary jurisdiction Division 2—Information and subsequent proceedings 49—Information (1) Where a person is suspected of having committed a summary offence, an information may be laid in the Magistrates Court in accordance with the rules charging that person with the offence. (2) An information may be laid by the informant personally or by a legal practitioner or other person duly authorised to lay the information on the informant's behalf. (3) If the information is laid orally, it must be reduced to writing. (4) An information charging a person with summary offences only need not be laid on oath unless— (a) some Special Act requires the information to be laid on oath; or (b) a warrant for the arrest of the defendant is to be issued. (5) An information must be filed in the Magistrates Court as soon as practicable after it is laid. 51—Joinder and separation of charges (1) A person may be charged with any number of summary offences in the same information (either cumulatively or in the alternative) if the charges arise from the same set of circumstances or from a series of circumstances of the same or a similar character. (2) The Magistrates Court may direct that— (a) charges contained in a single information be dealt with in separate proceedings; or (b) charges contained in separate informations be dealt with together in the same proceedings. 52—Limitation on time in which proceedings may be commenced (1) Subject to any provision of an Act to the contrary, if a person is to be prosecuted for a summary offence, the proceedings must be commenced within the following time limits: (a) in the case of an expiable offence— (i) if an expiation notice was given to the person—the proceedings must be commenced within 6 months of the expiry of the expiation period specified in the notice; (ii) if an expiation notice was not given to the person—the proceedings must be commenced within 6 months of the date on which the offence is alleged to have been committed; (b) in the case of an offence that is not expiable—the proceedings must be commenced within 2 years of the date on which the offence is alleged to have been committed. (2) For the purposes of subsection (1), an expiation notice is to be taken into account despite its subsequent withdrawal except if the notice of withdrawal specifies that it is withdrawn because— (a) the issuing authority has received a nomination, statutory declaration or other document sent to the authority by the alleged offender in accordance with a notice required by law to accompany the expiation notice or expiation reminder notice; or (b) it has become apparent that the alleged offender did not receive the notice until after the expiation period, or has never received it, as a result of error on the part of the authority or failure of the postal system or failure in the transmission of an email, (in which case the withdrawn expiation notice is to be disregarded). 54—Allegations and descriptions in informations and proceedings (1) Whenever in any information, or the proceedings thereon, it is necessary to state the ownership of any property belonging to, or in the possession of, partners, joint tenants, parceners, or tenants in common, it shall be sufficient to name one of such persons, and to state the property to belong to the person so named and another or others (as the case may be). (2) Whenever in any information or the proceedings thereon it is necessary to mention for any purpose whatsoever any partners, joint tenants, parceners, or tenants in common, it shall be sufficient to describe them in the same manner. (3) Whenever in any information or the proceedings thereon it is necessary to describe the ownership of any work or building made, maintained, or repaired at the expense of any public board of commissioners or trustees, or of any materials for the making, altering, or repairing of the same, it shall be sufficient to describe the same as the property of such commissioners or trustees without naming them. 56—Exceptions or exemptions need not be specified or disproved by informant (1) No exception, exemption, proviso, excuse, or qualification (whether it does or does not accompany in the same section the description of the offence in the Special Act or other document creating the offence) need be specified or negatived in the information. (2) Any such exception, exemption, proviso, excuse, or qualification as aforesaid may be proved by the defendant, but, whether it is or is not specified or negatived in the information, no proof in relation to it shall be required on the part of the informant. 57—Issue of summons by Magistrates Court (1) When an information has been laid and filed in the Magistrates Court, the Magistrates Court must, subject to subsection (2), issue a summons for the appearance of the defendant. (2) No summons need be issued by the Magistrates Court— (aa) where the summons for the appearance of the defendant has already been issued prior to the information being laid and filed in the Magistrates Court; or (a) where the relevant law under which the information is laid provides for the matter to be dealt with in the absence of the defendant; or (b) where the defendant is already before the Magistrates Court; or (c) where a warrant is issued to have the defendant arrested and brought before the Magistrates Court. (3) If when an information is filed in the Magistrates Court the whereabouts of the defendant is unknown, the Magistrates Court may defer issuing a summons until informed of a place at which service might be effected. 57A—Rules may make provision for written guilty pleas (1) The Magistrates Court may make rules to provide for a person against whom an information has been laid for an offence that is not punishable by imprisonment (either for a first or subsequent offence) to elect to plead guilty to the offence without appearing in the Court in obedience to a summons. (2) Without limiting the generality of subsection (1), the rules may make provision for any of the following matters: (a) the forms of information and summons; (b) the manner in which an information or summons is to be given or sent to, or served on, a person; (c) the manner in which a plea of guilty may be made and given to the Magistrates Court; (d) any other matter that is, in the opinion of the Court, necessary or expedient for the purposes of this section. (3) A defendant who returns a form in which the defendant pleads guilty in accordance with the rules need not attend the Magistrates Court as directed by the summons. (4) If a defendant who has been served with forms of information and summons in accordance with the rules fails to return a form pleading guilty in accordance with the rules, and fails to appear in obedience to the summons, the Magistrates Court may, subject to section 62B, proceed to exercise its powers under section 62(1)(a) or (b). (5) This section does not apply in relation to a defendant who is a child within the meaning of the Young Offenders Act 1993 except where the defendant— (a) is of or above the age of 16 years; and (b) is charged with an offence under the Road Traffic Act 1961. 58—Issue of warrant The Magistrates Court may issue a warrant to have the defendant arrested and brought before the Magistrates Court if— (a) the allegations in the information are substantiated on oath; or (b) the defendant fails to appear in obedience to a summons and the Magistrates Court is satisfied that the summons was served a reasonable time before the time appointed for the hearing. 59—Defendant to be brought before Magistrates Court (1) A defendant who has been arrested under a warrant must be brought before the Magistrates Court. (2) If it is not practicable to deal immediately with the matter for which the defendant has been brought before the Magistrates Court, the Magistrates Court may remand the defendant in custody, or on bail, to appear before the Magistrates Court at a time and place fixed in the order for remand. 60—Forms of custody etc (1) When a defendant is apprehended under a warrant or is remanded upon any adjournment of the hearing, the Magistrates Court may commit the defendant— (a) by warrant to the nearest prison or to some place of security; or (b) verbally to the custody of the constable or other person who has apprehended him; or (c) verbally to such other safe custody as the Magistrates Court deems fit, and the Magistrates Court must order the defendant to be brought before the Magistrates Court at some stated time and place, of which order the informant shall have due notice. (2) In any such case, the Magistrates Court may, instead of committing the defendant to prison or some other form of custody, release him on bail. Division 3—Hearing of summary offence 61—Sittings to be in open court but witnesses and other persons may be ordered to leave the Court (1) The room in which any court sits shall be deemed an open and public court, to which the public generally may have access so far as the same can conveniently contain them, and subject to the provisions hereinafter contained. (2) The court may, if it thinks fit, order that all witnesses (except the parties and any of their witnesses whom it sees fit to except) shall go and remain outside and beyond the hearing of the court until required to give evidence. (3) Nothing herein contained shall restrict the power of the court under Part 8 of the Evidence Act 1929 or require any case to be heard in open court if it is, by any Special Act, required or authorised to be heard in camera. 62—Proceedings on non-appearance of defendant (1) If the defendant fails to appear in obedience to the summons the Magistrates Court may— (a) issue a warrant as provided by section 58, and adjourn the hearing until the defendant is apprehended; or (b) upon proof that the summons was served a reasonable time before the time thereby appointed for his appearance, proceed in the absence of the defendant to the hearing of the information and subject to section 62C to adjudicate thereon as fully and effectually, to all intents and purposes, as if the defendant had personally appeared before it in obedience to the summons; or (ba) upon proof that the summons was served a reasonable time before the time thereby appointed for the defendant's appearance, order that the information may be heard in the absence of the defendant and adjourn the hearing; or (c) if the defendant has pleaded guilty in writing pursuant to section 57A proceed in the manner provided by sections 62B and 62C. (2) At a hearing adjourned pursuant to paragraph (ba) of subsection (1) of this section, the Magistrates Court may proceed in the absence of the defendant to the hearing of the information and subject to section 62C of this Act adjudicate thereon as fully and effectually, to all intents and purposes, as if the defendant had personally appeared before it in obedience to the summons. (3) Where a hearing is adjourned under subsection (1), the Magistrates Court need not be constituted at the adjourned hearing of the same judicial officer as ordered the adjournment. 62A—Power to proceed in absence of defendant (1) If a person who has been apprehended (whether under a warrant or without a warrant), and released on bail fails to appear at the time and place appointed for the hearing of an information laid or to be laid against him, the Magistrates Court may in its discretion hear the information in the absence of the defendant, and may adjudicate thereon as fully and effectually, to all intents and purposes, as if the defendant had appeared at that time and place. (2) This section shall apply whether the defendant is discharged pursuant to powers granted by this or any other Act. 62B—Powers of Magistrates Court on written plea of guilty (1) This section sets out the powers of the Magistrates Court that apply when a defendant fails to appear in obedience to a summons but has given the Court, in the manner and form prescribed by the rules made under section 57A, a form pleading guilty. (2) The Magistrates Court may not issue a warrant for the arrest of the defendant on the ground of non‑appearance but may— (a) on proof of service of the information and summons; and (b) on production of the form duly completed, convict and, subject to this section, adjudicate the matter as fully and effectually to all intents and purposes as if the defendant— (c) had personally appeared before the Court in obedience to the summons; and (d) had pleaded guilty and made the same submissions as to penalty as are set out in the form. (3) The Magistrates Court may receive and act on receipt of a form that has been completed and sent to the Court. (4) The prosecution may recite to the Magistrates Court any relevant matters alleged against the defendant in the same way as if the defendant had personally appeared and pleaded guilty. (5) Nothing in this section prejudices an application by a defendant to withdraw a plea of guilty at any time prior to the hearing and determination of the information laid against the defendant, and the Magistrates Court before whom the defendant appears to answer the information may permit a withdrawal of the plea on such terms as may be just. (6) If a defendant includes in a form pleading guilty matters that would, if true, indicate the defendant has a valid defence to the information, or which differ substantially in relevant particulars from the matters recited to the Magistrates Court by the prosecution, the Court may— (a) strike out the plea of guilty; and (b) adjourn the hearing of the information to a specified time and place; and (c) order that the defendant be served with a summons under section 57, after which the defendant must be dealt with as though the previous summons had not been issued, and the provisions of this section and section 57A no longer apply. (7) If a defendant who has given the Magistrates Court a form pleading guilty is convicted, the Court must not— (a) impose a sentence of imprisonment on the defendant; or (b) disqualify the defendant from holding or obtaining a licence to drive a motor vehicle unless— (i) it is proved to the Court that the summons was given personally to the defendant; or (ii) the procedure prescribed in section 62C is followed; or (c) treat the offence as other than a first offence unless the informant proves that the defendant has been previously convicted; or (d) subject to the rules—order the defendant to pay witness fees. (8) Where a defendant is convicted under this section, the Registrar must immediately, either personally or by post, give the defendant written notice of— (a) the conviction; and (b) any fine or other monetary sum to be paid; and (c) the time and manner of payment. 62BA—Proceedings where defendant neither appears nor returns written plea of guilty (1) If in any proceedings under this Act— (a) an information has been laid against a defendant; and (b) the defendant has been duly served with a summons but— (i) does not appear at the time and place appointed for the hearing or determination of the information or at a time and place at which the information is subsequently heard or determined; or (ii) in the case of an information and summons served under section 57A—the defendant neither appears nor pleads guilty in the manner provided under that section, the Magistrates Court may proceed to adjudicate on the information in the absence of the defendant in accordance with section 62, and in so doing regard any allegation contained in the summons, or information and summons, (as served on the defendant) as sufficient evidence of the matter alleged. (2) If the Magistrates Court finds the charge proved, the prosecution may recite to the Court any relevant matters alleged against the defendant in the same way as if the defendant had personally appeared and pleaded guilty. (3) For the purposes of subsection (1), allegations are contained in a summons, or information and summons, if they are contained in, annexed to, or accompany, the summons or information and summons. (4) The allegations referred to in subsection (1) may include particulars of the alleged offence and of the circumstances in which it is alleged to have been committed. (5) The provisions of this section are supplementary to, and do not derogate from, any other statutory provision regulating the hearing and determination of an information. 62C—Proceedings in absence of defendant (1) If a defendant fails to appear in obedience to a summons and is convicted (whether on a plea of guilty under section 57A or after a hearing in the defendant's absence)— (a) the Magistrates Court may not disqualify the defendant from holding or obtaining a licence to drive a motor vehicle unless— (i) the summons was given personally to the defendant; or (ii) the Court has first adjourned the hearing to a specified time and place in order to enable the defendant to appear for the purpose of making submissions on the question of penalty; and (b) the Court must not sentence the defendant to imprisonment unless the Court has first adjourned the hearing to a specified time and place in order to enable the defendant to appear for the purpose of making submissions on the question of penalty. (2) The Registrar must, as soon as practicable after an adjournment under subsection (1)(a)(ii) or (b), give written notice to the defendant on the form prescribed by the rules, informing the defendant of the purpose for which the hearing was adjourned and of the defendant's right to be heard at the adjourned hearing. (3) If at the time and place so appointed— (a) the defendant appears; or (b) the defendant fails to appear and it is proved that the notice in writing was served on the defendant, the Magistrates Court may, according to the circumstances, order that the defendant be imprisoned or disqualified from holding or obtaining a licence to drive a motor vehicle, or both. (4) If it appears to the Magistrates Court that, after making due inquiry and exercising reasonable diligence, the Registrar was unable to give a defendant the notice referred to in subsection (2), the Court may, despite any other provision of this section, proceed to determine the question of penalty and make an order as fully and effectually as if the defendant had been duly given the notice. (5) The contents of a notice may be proved by the production of a document purporting to be a copy of the notice certified by the Registrar to the effect that the document is a true copy of the notice served on the defendant in the manner or at the address, and on the day stated, in the certificate. (6) If a hearing is adjourned under subsection (1), the Magistrates Court need not be constituted at the adjourned hearing of the same judicial officer as ordered the adjournment. 62D—Proof of previous convictions (1) Where a defendant is served, at least three days before the hearing of the information, with a notice signed by the informant and— (a) stating particulars of any previous convictions of the defendant; and (b) stating that those particulars may be alleged against him at the hearing of the information, the prosecutor may, after the Magistrates Court has convicted the defendant of the offence alleged in the information, tender a copy of the notice in evidence before the court. (2) The Magistrates Court may regard an allegation contained in any such notice as sufficient evidence of the matter alleged. (3) A notice under this section may be served personally or by post. (4) If the prosecution tenders a copy of a notice under this section as evidence of convictions, it is not precluded from tendering other evidence of the same or other convictions. 63—Non-appearance of informant (1) If the defendant appears in obedience to the summons, or is brought before the Magistrates Court by virtue of any warrant, then if the informant, having had due notice, does not appear in person or by his counsel or solicitor, the Magistrates Court shall dismiss the information, unless for some reason it thinks proper to adjourn the hearing. 64—If both parties appear, Magistrates Court to hear and determine the case If both parties appear before the Magistrates Court, either in person or by their respective counsel or solicitors, then the Magistrates Court shall proceed to hear and determine the matter of the information. 67—When defendant pleads guilty, court to convict or make an order (1) When the defendant is present at the hearing the substance of the information shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted or why an order should not be made against him (as the case may be). (2) If the defendant admits the truth of the information, and shows no sufficient cause why he should not be convicted, or why an order should not be made against him, the Magistrates Court shall convict him or make an order against him accordingly. 68—Procedure on plea of not guilty (1) If the defendant does not admit the truth of the information the Magistrates Court will proceed to hear— (a) the informant and his witnesses and any other evidence which he adduces in support of his information; and (b) the defendant and his witnesses and any other evidence which he adduces in his defence; and (c) any evidence which the informant adduces in reply if the defendant adduces any evidence other than as to his, the defendant's, general character. (2) Subject to the provisions of section 12 of the Evidence Act 1929 every witness shall be examined upon oath. (3) The practice before the Magistrates Court on the hearing of any information with respect to the examination and cross-examination of witnesses and the right of addressing the Court in reply, or otherwise, will be in accordance, as nearly as may be, with the practice for the time being of the Supreme Court upon the trial of an action. 69—After hearing parties, Magistrates Court to convict or dismiss (1) Subject to subsection (2), after the parties and their evidence have been heard, the Magistrates Court must consider the whole matter and determine whether to— (a) convict or make an order against the defendant; or (b) dismiss the information. (2) The Magistrates Court may, at any time before the matter the subject of the hearing in subsection (1) has been finally determined, permit the information to be withdrawn on such terms (if any) as it thinks fit. 69A—Examination of defendant (1) Where the Magistrates Court finds proved any matter alleged in an information (not being a charge of an offence), the Magistrates Court may order that the defendant be examined by a physician, psychiatrist or psychologist directed by the Magistrates Court to conduct the examination and that the defendant submit to the examination. (2) Before making any other order in respect of the defendant, the Magistrates Court may consider and act upon a report on the defendant prepared by the person who conducted the examination: Provided that before the order is made— (a) the contents of the report shall be made known to the defendant, or his counsel or solicitor, if the defendant or his counsel or solicitor so requests; (b) the defendant, or his counsel or solicitor shall, if he so desires, be given an opportunity of cross-examining the person who prepared the report on the matters therein dealt with; (c) the Magistrates Court must, if so required by the defendant, or his counsel or solicitor, procure the attendance of that person before the Magistrates Court for cross‑examination. (3) For the purpose of enabling the defendant to be examined as mentioned in this section, the Magistrates Court may order that the defendant be taken to a suitable place for the examination. (4) This section shall not apply where the defendant is a child under the age of eighteen years. Division 4—Judgment 70—Conviction to be minuted (1) When the Magistrates Court convicts or makes an order against the defendant a minute or memorandum of the conviction or order shall then be made. (2) No fee shall be paid for any such minute or memorandum. 70A—Convictions where charges joined in information (1) Where charges for more than one offence have been joined in the same information, pursuant to this Act, the Magistrates Court may— (a) convict the defendant of such one or more of those offences as it finds proved: (b) include any number of offences in a minute or memorandum of conviction or in any formal conviction. (2) This section shall apply notwithstanding anything contained in the Special Act. 70B—Conviction for attempt where full offence charged If upon the trial of a person charged with an offence (whether a summary offence or a minor indictable offence) it appears to the Magistrates Court upon the evidence that the defendant did not complete the offence charged, but that he was guilty only of an attempt to commit that offence, the Magistrates Court may convict him of an attempt to commit the offence charged and thereupon he shall be liable to be punished in the same manner as if he had been convicted upon an information for such an attempt. 71—Order and certificate of dismissal (1) If the Magistrates Court dismisses the information a minute or memorandum shall be made as aforesaid, and the Magistrates Court may, on being required to do so and if it thinks fit, draw up an order of dismissal and give the defendant a certificate thereof. (2) A certificate of dismissal shall, upon production and without further proof, be a bar to any subsequent information for the same matter against the same party. 76A—Power to set aside conviction or order (1) The Magistrates Court may set aside a conviction or order— (a) on its own initiative; or (b) on the application of a party made within 14 days after the party receives notice of the conviction or order. (3) The Magistrates Court may set aside a conviction or order under this section if satisfied— (a) that the parties consent to have it set aside; or (b) that the conviction or order was made in error; or (c) that it is in the interests of justice to set aside the conviction or order. (4) Where the Magistrates Court sets aside a conviction or order under this section it may, without further formality— (a) proceed to re-hear the proceedings in which the conviction or order was made; or (b) adjourn the proceedings for subsequent re‑hearing. 76B—Correction of conviction or order The Magistrates Court may, on its own initiative or on the application of any party, correct an error in a conviction or order. Division 5—Non‑association and place restriction orders 77—Interpretation In this Division— close family, in relation to a defendant, means the following people: (a) the defendant's spouse, or former spouse, or a person in a close personal relationship with the defendant; (b) the defendant's parents and grandparents (whether by blood or by marriage); (c) the defendant's children and grandchildren (whether by blood or by marriage); (d) the defendant's brothers and sisters (whether by blood or by marriage); (e) the defendant's guardians or carers; close personal relationship has the same meaning as in Part 3 of the Family Relationships Act 1975; health service means a health service within the meaning of the Health Care Act 2008 and includes any service of a kind prescribed by regulation for the purposes of this definition; non‑association order means an order under section 78— (a) prohibiting a defendant— (i) from being in company with a specified person; or (ii) from communicating with that person by any means, except at the times or in the circumstances (if any) specified in the order; or (b) prohibiting a defendant— (i) from being in company with a specified person; and (ii) from communicating with that person by any means; place restriction order means an order under section 78— (a) prohibiting a defendant from frequenting or visiting a specified place or area except at the times or in the circumstances (if any) specified in the order; or (b) prohibiting a defendant from frequenting or visiting a specified place or area at any time or in any circumstance; prescribed offence means an indictable offence or an offence that would, if committed in this State, be an indictable offence; spouse—a person is the spouse of another if they are legally married; welfare service means services (whether provided as public or private services) relating to the provision of housing, employment benefits, rental assistance or other financial assistance, family support and other community welfare services necessary for the promotion, protection, development and maintenance of the well‑being of persons. 78—Non‑association and place‑restriction orders (1) An information may be laid under this section by a police officer. (2) On an information, the Magistrates Court may make a non‑association order or a place restriction order (or both) in respect of the defendant if— (a) the defendant has, within the period of 2 years immediately preceding the making of the information, been convicted (in this State or elsewhere) of a prescribed offence; and (b) the Magistrates Court is satisfied that it is reasonably necessary to do so to ensure that the defendant does not commit any further prescribed offences. (3) A non‑association order or a place restriction order— (a) operates for the period specified in the order (which must be not more than 2 years); and (b) may specify that it is to commence at the end of a period of imprisonment being served by the defendant. (4) The Magistrates Court may— (a) in determining whether it is reasonably necessary to make a non‑association order or a place restriction order to ensure that the defendant does not commit any further prescribed offences, take into account events that have taken place outside of this State; and (b) make a non‑association order or a place restriction order against a defendant whether resident in or outside of this State. (5) If a defendant disputes some or all of the grounds on which a non‑association order or a place restriction order is sought or made but consents to the order, the Magistrates Court may make or confirm the order without receiving any further submissions or evidence as to the grounds. 79—Non‑association and place restriction orders not to restrict certain associations or activities (1) The persons specified in a non‑association order as persons with whom the defendant must not associate may not include any member of the defendant's close family. (2) Despite subsection (1), a member of the defendant's close family may be specified in a non‑association order if— (a) the defendant requests that the member be specified in the order; or (b) the Magistrates Court has reasonable cause to believe, having regard to the criminal antecedents of the member and the defendant, the nature and pattern of criminal activity in which the member and the defendant have both participated or any other matter the Magistrates Court thinks fit, that there is an appreciable risk that the defendant may be involved in conduct that could involve the commission of a further prescribed offence if the defendant associates with that member. (3) The places or areas specified in a place restriction order as places or areas that the defendant must not frequent or visit may not include— (a) the defendant's place of residence or the place of residence of any member of the defendant's close family; or (b) any place of work at which the defendant is regularly employed; or (c) any educational institution at which the defendant is enrolled; or (d) any place of worship that the defendant regularly attends. (4) Despite subsection (3), a place or area referred to in that subsection may be specified in a place restriction order if— (a) the defendant requests that the place or area be specified in the order; or (b) the Magistrates Court has reasonable cause to believe, having regard to the ongoing nature and pattern of participation of the defendant in criminal activity occurring at that place or area, that there is an appreciable risk that the defendant may be involved in conduct that could involve the commission of a further prescribed offence if the defendant frequents or visits that place or area. 80—Issue of non‑association or place restriction order in absence of defendant (1) A non‑association order or a place restriction order may be made in the absence of the defendant if the defendant was required by summons or conditions of bail to appear at the hearing of the information and failed to appear. (2) A non‑association order or a place restriction order may be made in the absence of the defendant and despite the fact that the defendant was not summoned to appear at the hearing of the information, but in that case, the Magistrates Court must summon the defendant to appear before the Magistrates Court to show cause why the order should not be confirmed. (3) The Magistrates Court may make an order under subsection (2) on the basis of evidence received in the form of an affidavit but, in that case— (a) the deponent must, if the defendant so requires, appear personally at the proceedings for confirmation of the order to give oral evidence of the matters referred to in the affidavit; and (b) if the deponent does not appear personally to give evidence in pursuance of such a requirement, the Magistrates Court may not rely on the evidence contained in the affidavit for the purpose of confirming the order. (4) The Magistrates Court may, from time to time without requiring the attendance of any party, adjourn the hearing to which a defendant is summoned under subsection (2) to a later date if satisfied that the summons has not been served or that there is other adequate reason for the adjournment. (5) The date fixed in the first instance for the hearing to which a defendant is summoned under subsection (2) must be within 7 days of the date of the order, and the date fixed under subsection (4) for an adjourned hearing must be within 7 days of the date on whic