Tasmania: Justices Act 1959 (Tas)

Justices Act 1959 An Act to amend and consolidate the law relating to justices [Royal Assent 23 December 1959] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART I - Preliminary 1. Short title and commencement (1) This Act may be cited as the Justices Act 1959 . (2) This Act shall commence on a date to be fixed by proclamation. 2. Repeals The Acts that are specified in Schedule 1 are repealed. 3. Interpretation (1) In this Act, unless the contrary intention appears – affected person means a person who is an affected person under section 61(2) ; breach of duty means any act or omission (not being a simple offence) upon complaint whereof justices may make an order on a person for the payment of money or for doing, or refraining from doing, any other act; charge of an indictable offence means charge of an indictable offence as such and in order to a committal for trial therefor; Chief Clerk of Petty Sessions means the person holding office as Chief Clerk of Petty Sessions by virtue of section 16 ; Chief Magistrate means the Chief Magistrate appointed under section 5 of the Magistrates Court Act 1987 ; complaint means a written allegation of an indictable or simple offence or of a breach of duty made to a justice; court of petty sessions means a court held by 2 or more justices in petty session; court of summary jurisdiction means – (a) a court of petty sessions; and (b) a court held by one justice; decision includes a committal for trial and an admission to bail as well as a conviction, order, order of dismissal, or other determination; defendant means a person complained against before justices for an indictable offence, simple offence, or breach of duty; and in sections 77 to 87 includes any person against whom a warrant of execution is or may be issued; Director, MPES means the Director, Monetary Penalties Enforcement Service appointed under section 8 of the Monetary Penalties Enforcement Act 2005 ; district means a municipal area, within the meaning of the Local Government Act 1993 ; extra-territorial justice means a justice appointed under section 11 ; family violence offence means a family violence offence within the meaning of the Family Violence Act 2004 ; family violence order means a family violence order within the meaning of the Family Violence Act 2004 and includes a police family violence order and an interim family violence order under that Act; gaol means a prison within the meaning of the Corrections Act 1997 ; gaoler means – (a) in relation to a prisoner or detainee, as defined in the Corrections Act 1997 , in a place declared under section 9(1) of the Corrections Act 1997 to be a prison, the Director of Corrective Services; or (b) in relation to a person in a place declared to be a prison under the Corrections Act 1997 that is available for use for the detention in lawful custody of persons other than prisoners or detainees under section 9(2) of the Corrections Act 1997 , a police officer; hearing includes the examination of a person charged with an indictable offence; indictable offence means an offence which may be prosecuted upon indictment before the Supreme Court; interim restraint order has the same meaning as in Part XA ; lawyer means an Australian legal practitioner as defined in section 6 of the Legal Profession Act 2007 ; magistrate means a magistrate within the meaning of the Magistrates Court Act 1987 ; Magistrates Rule Committee means the committee referred to in section 15AC of the Magistrates Court Act 1987 ; order means an order made upon a complaint of a breach of duty; pecuniary sum means a sum of money in respect of which a warrant is issued under section 80 (1) , including the prescribed costs of the warrant and of a warrant of commitment issued under section 80 (2) (c) , 80 (4A) or 82 (1) , as the case may require; petty session means a sitting together of 2 or more justices otherwise than in – (a) a general session; or (b) a special session required to be held for administrative purposes under another Act; preliminary proceedings means proceedings conducted in accordance with a preliminary proceedings order; preliminary proceedings order means an order requiring the giving of evidence on oath in preliminary proceedings – (a) made under section 62 ; or (b) made by the Supreme Court under section 331B of the Criminal Code ; prescribed means – (a) prescribed in the rules of court; or (b) prescribed in regulations made under section 145 ; probation officer means a probation officer as defined by the Corrections Act 1997 ; public officer means any person employed in any capacity in the public service of the State, and includes – (a) a police officer; and (b) a probation officer; restraint order has the same meaning as in Part XA ; rules of court means rules of court made by the Magistrates Rule Committee under the Magistrates Court Act 1987 for the purposes of this Act; Secretary means the Secretary of the Department; simple offence means any offence (indictable or not) punishable, on summary conviction before justices, by fine, imprisonment, or otherwise; summary conviction, or conviction, means a conviction by justices for a simple offence; telephone interim restraint order has the same meaning as in Part XA ; the clerk of petty sessions means the person appointed or assigned as clerk of petty sessions for the district to which the context relates; the justices means the justices exercising jurisdiction in respect of the matter to which the context relates. (2) Where in any enactment the expressions information, information and complaint, charge, and charge of an indictable offence are used in relation to proceedings before justices, they shall be deemed to mean a complaint. PART II - . . . . . . . . 4. . . . . . . . . 4A. . . . . . . . . 4B. . . . . . . . . 4C. . . . . . . . . 5. . . . . . . . . 6. . . . . . . . . 7. . . . . . . . . 8. . . . . . . . . 9. . . . . . . . . 10. . . . . . . . . PART III - . . . . . . . . 11. . . . . . . . . 12. . . . . . . . . 13. . . . . . . . . 14. . . . . . . . . 15. . . . . . . . . PART IV - Clerks 16. Chief Clerk of Petty Sessions (1) The Administrator of the Magistrates Court appointed under the Magistrates Court Act 1987 is, by virtue of that office and without further commission or authority, the Chief Clerk of Petty Sessions for the purposes of this Act. (2) In the performance of their functions and the exercise of their powers under this Act, all clerks and deputy clerks of petty sessions and any persons appointed to assist the clerks of petty sessions shall be subject to the directions of the Chief Clerk of Petty Sessions. (3) Subsection (2) does not apply to a magistrate discharging the duties of a clerk of petty sessions under section 19 (1) . 16A. Appointment of clerks, &c., of petty sessions (1) The Minister administering the State Service Act 2000 may appoint State Service officers and State Service employees to be the clerk of petty sessions for a district and deputy clerk or deputy clerks of petty sessions for a district and those officers or employees are to hold office in conjunction with State Service employment. (2) Subject to and in accordance with the State Service Act 2000 , there may be appointed or employed such persons as are considered necessary for the purposes of this Act. 17. Clerks of petty sessions (1) The clerk of petty sessions is, himself or by deputy, the ordinary clerk of – (a) all courts of summary jurisdiction; (b) all justices examining into charges of indictable offences; and (c) the magistrate acting ministerially or administratively in respect of matters – within his district. (1A) . . . . . . . . (2) The clerk of petty sessions may himself or by deputy receive complaints and issue summonses thereon, summonses to witnesses, and process in execution of convictions and orders as if he were a justice. (2A) Subject to this section, a justice who is a clerk of petty sessions, deputy clerk of petty sessions, or clerk in the office of a clerk of petty sessions shall not– (a) sit alone or with other justices in a court of summary jurisdiction; or (b) do any act as an examining justice in respect of a person charged with an indictable offence. (2B) The Chief Magistrate may authorise a particular, or any, justice who holds the office or position of a clerk of petty sessions, deputy clerk of petty sessions or clerk in the office of a clerk of petty sessions to sit alone in a court of summary jurisdiction. (2C) An authorisation under subsection (2B) is subject to any conditions specified in it. (2D) A justice authorised under subsection (2B) may do one or more of the following: (a) adjourn to a later date proceedings before the justice; (b) if the prosecutor consents, admit the defendant to bail; (c) if the defendant has appeared before the justice in accordance with his or her bail, continue that bail to the date to which the proceedings are being adjourned; (d) where the justice continues a defendant's bail and both the defendant and the prosecutor consent to a variation of the conditions to which that bail is subject, vary those conditions; (e) order the defendant to appear before justices on the date to which the proceedings are being adjourned. (2E) An order under subsection (2D)(e) has the same effect as a summons in similar terms. (2F) The Chief Magistrate may vary or revoke an authorisation made under subsection (2B) . (2G) An authorisation under subsection (2B) and any variation or revocation of such an authorisation are to be in writing. (3) This section does not prevent justices from using another person as their clerk in court when the clerk of petty sessions or any of his deputies cannot conveniently attend. 17A. Clerk of petty sessions to have care and custody of records of court (1) A clerk of petty sessions shall have the care and custody of all the records of the court of which he is the clerk. (2) In subsection (1) , records includes, without limiting the generality of that expression – (a) the complaints and applications lodged with a clerk of petty sessions and any documents filed in connection with those complaints and applications; (b) where evidence in proceedings in a court of summary jurisdiction is recorded by mechanical means on to tapes or other apparatus, those tapes or other apparatus; and (c) the record of those proceedings that are taken by the justices pursuant to section 50A (1) . 18. Deputy clerks of petty sessions, &c. (1) Subject to the direction of the justices or of the clerk of petty sessions a deputy clerk of petty sessions may do anything that the clerk of petty sessions may do under any enactment. (2) During a petty session or the session of a justice acting judicially or examining into a charge of an indictable offence, any person acting as clerk to the justice or justices may do all that the clerk of petty sessions might do in respect of the business of the session. 19. Magistrate may discharge duties of the clerk of petty sessions (1) In a district where the office of clerk of petty sessions is vacant or at a place at which no clerk of petty sessions or deputy clerk of petty sessions is present, the magistrate acting in that place may discharge all or any of the duties of the clerk of petty sessions, and all acts done by that magistrate in pursuance of this section are as valid as if done by the clerk, and all notices required to be given to the clerk, and all other matters and things required to be done with or in reference to the clerk, may be given to or done with or in reference to that magistrate, and shall have the like force and effect. (2) The justices in petty sessions at that place or the Minister may require that any of such duties, acts, matters, and things as they or he shall think convenient shall be done by, with, or in reference to some police officer, and thereupon those acts, matters, and things if so done shall be as valid as if done by, with, or in reference to the clerk of petty sessions. 19A. . . . . . . . . PART V - Jurisdiction 20. Hearing of complaints (1) Every complaint shall be heard and determined by a magistrate or by one or by more justices, as is directed by the Act relating to the matter, or if there is no such direction, by any 2 or more justices. (2) No justice other than a magistrate shall sit or adjudicate under this Act on the hearing of any complaint unless he has been notified as prescribed by the clerk of petty sessions that his attendance is required on the day on which that complaint is to be heard. (3) No finding, decision, or order of any court of summary jurisdiction may be impugned, reversed, or invalidated on the ground that a justice sitting in the court has not received a notice as provided by subsection (2) . 21. Decision of 2 or more justices (1) Subject to subsection (2) , when 2 or more justices hear a 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 justices present, or a majority of them may – (a) dismiss the case; or (b) adjourn the case for a rehearing with additional justices, or by other justices, or by a magistrate sitting alone. (2) When 2 justices only are present and acting at the hearing of a matter and do not agree, if one of them is a magistrate, the decision of the magistrate shall prevail. (3) Where a complaint must be heard and determined by 2 or more justices, the justices making the decision must be present and act together during the whole of the hearing and determination. 22. Powers of magistrates (1) A magistrate has power to do alone – (a) whatever may be done by a court of petty sessions; and (b) any other act which may be done by 2 or more justices in petty session. (2) The court held by a magistrate, whether in the exercise of the jurisdiction of 2 or more justices or of jurisdiction exercisable by him as a magistrate, shall be deemed to be a court of petty sessions. 23. Powers of single justice One justice may – (a) receive a complaint and issue a summons or warrant thereon; (b) issue his summons to compel the attendance of witnesses in relation to the matter of a complaint or the matter to which an application under Part XA of this Act, or Part 3 or 4 of the Family Violence Act 2004 , relates; (c) do all other necessary acts and matters preliminary to the hearing of a complaint or matter notwithstanding that it must be heard and determined by a magistrate or 2 or more justices; (d) after the determination of a complaint or matter, whether or not he determined it or took part in its determination, issue a warrant of execution or commitment thereon; and (e) examine into a complaint of an indictable offence and commit the defendant for trial, or if he pleads guilty, commit him for sentence; and (f) conduct preliminary proceedings in accordance with Division 3 of Part VII . 23A. Time and place of sitting, &c., unrestricted Subject to any other provisions of this Act – (a) all courts of summary jurisdiction; (b) all justices examining into charges of indictable offences; and (c) all justices dealing with bail or recognizances – may sit and act at any time, including Sunday, and at any place. 23AB. Approval and roster of justices who may constitute courts of summary jurisdiction, &c. The Chief Magistrate may from time to time – (a) by instrument in writing, approve the justices who may constitute courts of summary jurisdiction, examine charges of indictable offences and deal with bail or recognizances; and (b) approve and vary rosters of those justices to sit as courts of summary jurisdiction, examine charges of indictable offences and deal with bail or recognizances. 24. Summons or warrant not avoided by death, &c., of justice A warrant or summons issued by a justice is not avoided by reason of his dying or ceasing to hold office. 25. Contempt (1) If a person – (a) wilfully misbehaves himself before justices sitting in any place in the exercise of their jurisdiction under this or any other Act; (b) wilfully interrupts or obstructs proceedings before such justices; or (c) is guilty of wilful prevarication in giving evidence before such justices – that person shall be deemed guilty of contempt of court, and the justices may, during their sitting, by oral order, direct that person to be removed from the court or place, and to be taken into custody, and at any time before they rise may impose on that person a fine not exceeding 10 penalty units or, by warrant, commit that person to a term of imprisonment not exceeding 6 months. (2) Where a person is guilty of misconduct mentioned in subsection (1) , the justices may, if they think fit, accept an apology for the misconduct, and may remit any penalty or punishment for it either wholly or in part. PART VI - General Procedure 26. Limitation on summary proceedings (1) In the case of a simple offence that is not an indictable offence, or of a breach of duty, unless some other time is limited for making complaint by the law relating to the particular case, complaint must be made – (a) within 6 months from the time when the matter of complaint arose; or (b) against a provision of an Act that has been declared in accordance with subsection (1A) to be an Act to which this paragraph applies – (i) within 3 years from the time when the matter of complaint arose; and (ii) within 6 months from the time when the matter of complaint came to the attention of the Director of Consumer Affairs and Fair Trading. (1A) The Minister responsible for administering the Consumer Affairs Act 1988 may declare, by order published in the Gazette, an Act to be an Act to which subsection (1)(b) applies. (1B) An order under subsection (1A) is a statutory rule within the meaning of the Rules Publication Act 1953 . (2) Notwithstanding subsection (1) , a complaint for a simple offence (not being an indictable offence) may be made against a person within 12 months after the time when the matter of complaint arose if – (a) that matter of complaint may also give rise to an indictable offence; and (b) the person has been charged with that indictable offence within the period of 6 months, or the other time referred to in that subsection. (3) Notwithstanding subsections (1) and (2) , a complaint for a simple offence (not being an indictable offence) may be made against a person at any time if – (a) the matter of complaint giving rise to a simple offence may also be a matter giving rise to an indictable offence; and (b) the person has been charged with that indictable offence within the period of 6 months, or the other time, referred to in subsection (1) ; and (c) the person has consented in writing to the making of that complaint. 27. Proceedings may be commenced by complaint (1) Subject to subsections (2) and (3) , and except as otherwise enacted or prescribed under any enactment, proceedings before justices shall be commenced by a complaint, which may be made or laid by the complainant in person, or by his or her lawyer or other person authorized in that behalf. (2) Where a person has been arrested without a warrant, oral information of the substance of the charge may take the place of a complaint up to the stage of the proceedings at which a complaint is needed for the person charged to plead to it. (3) A complaint of a breach of the Criminal Code may not be made by a person other than – (a) a public officer; (b) a person authorized or directed to make the complaint by the Crown or the Commonwealth; or (c) an officer of a municipality or another statutory public or local authority – acting in good faith in his official capacity, without the consent of the Director of Public Prosecutions, who shall satisfy himself by affidavit, statutory declaration, or otherwise that the complainant is acting in good faith and on reasonable grounds. (4) If a matter purporting to be a complaint has been made by a public officer in the name of, and on behalf of, an agency, Department or instrumentality purportedly in reliance on rule 6(3)(b) of the Justices Rules 2003 as in force on and from 1 January 2004 until 1 June 2009 – (a) the matter is taken to be a complaint validly made by the public officer who signed it; and (b) that public officer is taken to be the complainant and to have made the complaint in his or her own right in accordance with subsection (1) ; and (c) the complaint need not be sworn before a justice. (5) Subsection (4) applies – (a) subject to subsection (6) , to a matter purporting to be a complaint referred to in subsection (4) , whether or not the proceedings on the purported complaint have been finally determined; and (b) to the public officer who made the purported complaint in the name of, and on behalf of, an agency, Department or instrumentality, whether or not the public officer was employed in that agency, Department or instrumentality. (6) If before the commencement of subsection (4) a matter purporting to be a complaint referred to in that subsection has been dismissed by a court on the basis that the purported complainant is not a person who has the legal capacity to bring a complaint, that subsection – (a) does not apply to that purported complaint; and (b) does not affect the decision of the court. 28. Complaint against several defendants (1) Any number of persons who are alleged to be parties within the meaning of section 73 to the same simple offence or who are alleged to be parties within the meaning of section 3 of the Criminal Code to the same indictable offence may be joined in the same complaint and the charges against them may be heard together or separately, notwithstanding that a party to the offence is not included in the complaint or is not amenable to justice. (2) Where 2 or more persons are joined as defendants in the same complaint, whether in respect of the same offence or different offences, the justices may, at any time during the hearing, on the application of any of the defendants, direct that the hearing of the complaint against any of the defendants shall be had separately from the hearing of the complaint against the other or others of them. 29. Only one matter of complaint: Procedure if otherwise (1) A complaint shall be for one matter only and not for 2 or more matters, except – (a) in the case of indictable offences, where the matters complained of are such that they may be charged in one indictment; (b) in other cases, if the matters of complaint are – (i) substantially of the same act or omission on the part of the defendant, although amounting in law to 2 or more offences or 2 or more matters of complaint; or (ii) founded on the same facts or are, or form part of, a series of offences or matters of complaint of the same or a similar character; or (c) where otherwise expressly enacted. (2) Where several matters of complaint are joined in the one complaint pursuant to subsection (1) , each matter of complaint shall be set out in a separate numbered paragraph. (3) If, contrary to subsection (2) , any paragraph in a complaint includes more than one matter of complaint, the justices may, upon such terms and conditions as they think fit, at any stage of the hearing permit the complainant to amend that paragraph so that it shall include only one matter of complaint and to add a new paragraph or new paragraphs with respect to the other matter or matters of complaint. (4) Where, on the hearing of a complaint, it appears to the justices that the defendant may be prejudiced or embarrassed in his defence because the complaint contains more than one matter of complaint or that for any other reason it is desirable to direct that one or more of the matters of complaint should be heard separately, the justices may order a separate hearing of any matter of complaint. (5) On the hearing of a complaint that does not comply with subsection (1) – (a) the justices shall, on the application of the defendant, require the complainant to choose one matter of complaint on which to proceed, and shall strike out of the complaint all other matters, without prejudice to the right of the complainant to lay a fresh complaint against the defendant in respect of any matter so struck out; or (b) if the defendant does not so apply, the justices shall proceed to hear the evidence, and shall determine which matter or matters of complaint, if any, is or are proved, and may convict the defendant accordingly. 30. Statement of offences, &c. (1) Any complaint, summons, warrant, or other document that is laid, issued, or made for the purpose of, or in connection with, proceedings before justices shall be sufficient if it – (a) describes the matter of complaint with which the defendant is charged or of which he is convicted in ordinary language, avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the matter of complaint; and (b) contains such particulars as will give reasonable information of the nature of the matter complained of. (2) Where an enactment constituting a simple offence or breach of duty states – (a) the offence or breach of duty to be doing or omitting to do – (i) any one of any different acts in the alternative; or (ii) any act in any one of different capacities or with any one of different intentions; or (b) any part of the offence or breach of duty in the alternative – the acts, omissions, capacities, intentions, or other matters stated in the alternative in the enactment may be stated in the alternative in a complaint for that simple offence or breach of duty. 31. Irregularities and amendments (1) An objection shall not be taken or allowed to a complaint in respect of – (a) an alleged defect therein, in substance or in form; or (b) a variance between it and the evidence in support thereof. (2) Notwithstanding the provisions of subsection (1) , where – (a) a complaint fails to disclose an offence or matter of complaint; or (b) the defendant appears to have been prejudiced by any defect or variance referred to in that subsection – the justices shall, unless the complaint is amended as provided in subsection (3) , dismiss the complaint. (3) If it appears to the justices that the complaint – (a) fails to disclose an offence or matter of complaint, or is otherwise defective; and (b) ought to be amended so as to disclose an offence or matter of complaint, or otherwise to cure the defect – the justices may amend the complaint upon such terms as may be just. (4) An objection shall not be taken or allowed to a warrant or summons in respect of – (a) an alleged defect therein, in substance or in form; or (b) a variance between it and the evidence in support of the complaint in connection with which it is issued – but the justices may adjourn the hearing if it appears to them that the defendant has been prejudiced by the defect or variance. (5) Any – (a) conviction or order made by justices; or (b) warrant of committal, or other warrant or proceeding issued or had by or before justices – may be amended, according to the evidence, by the justices by or before whom it was made, issued, or had, or by any court before which it comes, on appeal or otherwise, at any time after it has been signed, and before it has been executed, upon such terms as to costs, or otherwise, as to the justices or court seems fit. (6) A conviction or order of, or other proceeding before, justices shall not be quashed or set aside for a mere matter of form or technical error, or mistake in a name, date, or title, or in a matter of description only, but in all cases regard shall be had alone to the substantial merits and justice of the case. (7) A warrant of commitment issued upon any conviction by justices shall not be void or invalid, or be quashed, for any defect in substance or in form, and a party shall not be entitled to be discharged out of custody on account of any such defect where – (a) it is alleged in the warrant that the party has been convicted of an offence; and (b) it appears to the court before which the warrant is returned that the conviction proceeded on good and valid grounds. 32. Process on complaint When complaint is made to a justice he may – (a) issue a summons to the person complained against; (b) where the complaint is – (i) that a person has committed or is accessory to having committed an indictable offence within the State; (ii) that a person charged with having committed or with being suspected of having committed an indictable offence on the high seas or in any creek, harbour, haven, or other place in which the Admiralty of England has and claims to have jurisdiction or on land outside the State, of which offence cognizance may be taken by the Supreme Court, is suspected of being within the State; or (iii) that a person has committed a simple offence the matter whereof is substantiated before him on oath – issue his warrant for the apprehension of the person complained against; or (c) where the person complained against is imprisoned for any other cause, issue his warrant to the gaoler to bring up the body of that person as often as is required for the proceedings upon the complaint, and the gaoler shall obey the warrant. 33. Apprehension of person summoned Where a summons has been issued to a person, a justice may, before or after the time for appearance mentioned in the summons, issue a warrant for the apprehension of that person. 34. Power of police officers, &c., to admit to bail (1) Subject to subsection (3) , where a person has been taken into custody for a simple offence, for a breach of duty, pursuant to a warrant issued by a justice under section 12 of the Bail Act 1994 or to facilitate the making of an application for a restraint order– (a) a commissioned police officer; or (b) a police officer who is in charge, or has for the time being the charge, of a police office or police station; or (c) in the case of an offence against the Marine Safety (Misuse of Alcohol) Act 2006 or Road Safety (Alcohol and Drugs) Act 1970 , an approved operator under those Acts – must inquire into the case and must, unless there is reasonable ground for believing that such a course would not be desirable in the interests of justice, admit that person to bail. (2) In the case of a person taken into custody for a family violence offence or to facilitate the making of an application for a family violence order or restraint order, the person considering under subsection (1) whether to admit that person to bail, in determining whether there is reasonable ground for believing that to do so would not be in the interests of justice– (a) must consider the protection and welfare of the person against whom the offence was committed or for whose benefit the family violence order, restraint order, interim restraint order or telephone interim restraint order is sought or was made to be of paramount importance; and (b) must take into account any previous violence by that person against the person against whom the offence was committed or for whose benefit the family violence order, restraint order, interim restraint order or telephone interim restraint order is sought or was made or against any other person whether or not that person was convicted of an offence, or had a prior family violence order or restraint order made against him or her, in respect of that violence; and (c) must take into account whether a recognised DVO, within the meaning of the Domestic Violence Orders (National Recognition) Act 2016 , is in force under that Act in respect of that person. (3) Subsection (1) does not apply if the person is detained under section 4 (2) of the Criminal Law (Detention and Interrogation) Act 1995 . 34A. Procedure on arrest (1) Where a person, other than a prescribed person, who is taken into custody for an offence or a breach of duty or under section 5 (5A) of the Bail Act 1994 is brought before a justice, the justice must determine whether there is alleged against that person an act or omission that would constitute an offence or a breach of duty and – (a) if there is not, the justice must release him or her; or (b) if there is, the justice must, except in a case to which section 70(2) applies, proceed as provided in section 35 . (2) Where a prescribed person is brought before a justice, the justice must – (a) cause the application for the restraint order to be read to the person or explain to the person, in simple terms, the contents and meaning of the application; and (b) determine whether there is alleged against the person conduct that would constitute grounds for the making of a restraint order under Part XA . (3) If a justice is satisfied that – (a) there is not alleged against a prescribed person who is brought before the justice conduct that would constitute grounds for the making of a restraint order under Part XA , the justice must release the person; or (b) there is alleged against that person any such conduct, the justice must – (i) proceed as provided in section 35 ; or (ii) make an interim restraint order under section 106D notwithstanding that the justice is acting alone in making that order. (4) For the purposes of this section, prescribed person means a person – (a) who is taken into custody to facilitate the making of an application for a restraint order under Part XA ; or (b) who, after having been taken into custody as specified in paragraph (a) and released on bail under section 34 , is taken into custody under section 5 (5A) of the Bail Act 1994 . 35. Power of justice to admit person to bail (1) Where a person referred to in section 34A is brought before a justice, the justice must ask the person whether he or she wishes to apply for bail and, if the person so wishes, the justice – (a) may make an order for bail for the person; or (b) may refuse bail. (2) In determining whether to refuse to bail or to admit to bail a person who is a prescribed person within the meaning of section 34A or a person referred to in section 34A (1) who has been taken into custody in respect of an offence constituted by a breach of a restraint order, interim restraint order or telephone interim restraint order, the justice – (a) must consider the protection and welfare of the person for whose benefit the restraint order, interim restraint order or telephone interim restraint order is sought or was made to be of paramount importance; and (b) must take into account any previous violence by that person against the person for whose benefit the restraint order, interim restraint order or telephone interim restraint order is sought or was made or against any other person whether or not that person was convicted of an offence, or had a prior restraint order made against him or her, in respect of that violence. 36. . . . . . . . . 36A. . . . . . . . . 36B. . . . . . . . . 37. Admission to courts of summary jurisdiction (1) Subject to subsection (2) and to the Admission to Courts Act 1916 , and the regulations thereunder, the room or place in which justices sit to hear and determine a complaint upon which a conviction or order may be made, is an open and public court, to which all persons may have access so far as it can conveniently contain them. (2) The justices may, if they think fit, and shall, if required by a party, at any time during the hearing, order that all witnesses, other than the complainant and the defendant, and the witness under examination, except in so far as in particular cases and for special circumstances they see fit otherwise so to do, shall go and remain outside, and beyond the hearing of the court until required to give evidence. (3) If a witness wilfully disobeys an order under subsection (2) , he shall be deemed guilty of a contempt of court, and may be punished as provided in section 25 . (4) . . . . . . . . 37A. Publication of accounts of certain proceedings (1) Notwithstanding anything in the Defamation Act 2005 , a person shall not publish or cause or allow to be published an account of the proceedings on an application in respect of bail, except an account giving the fact of the application and stating that an order has been made in respect thereof. Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 6 months. (2) Subsection (1) does not apply to – (a) a report of proceedings in the Supreme Court or before a judge that is written as a law report; or (b) the publication of an account of proceedings referred to in that subsection that is published after the final determination of the charge upon which the applicant was then held in custody. (3) Notwithstanding anything contained in any other Act, a person who unlawfully publishes or causes or allows to be published an account of proceedings before justices that is forbidden to be published (other than an account to which subsection (1) applies) is liable to the penalty prescribed by that subsection. 38. Representation of parties by counsel, &c. (1) A complainant may, in person or by the complainant's lawyer, conduct his or her case and examine and cross-examine witnesses. (2) A defendant must, in person or by the defendant's lawyer, be admitted to make his or her full answer and defence to the complaint and to examine and cross-examine witnesses. (3) If the complainant is a public officer, the complainant may, in person or by the complainant's lawyer or another public officer, conduct his or her case and examine and cross-examine witnesses. (4) With the consent of the justices, a police officer may conduct the case of any complainant, and examine and cross-examine witnesses. 39. Evidence: How taken A witness shall be examined upon oath, or in such other manner as is prescribed or allowed by the Acts relating to giving evidence in courts of justice, and the justices may administer to witnesses the usual oath. 39A. Appearance via audio or audio visual link Where, in any proceedings, a defendant who is in custody will not be giving evidence or making submissions, he or she may appear at those proceedings via audio link or audio visual link, both within the meaning of the Evidence (Audio and Audio Visual Links) Act 1999 , as if he or she were giving evidence under that Act. 40. Prosecutor or complainant a competent witness Upon a complaint of an indictable offence, simple offence, or breach of duty, the prosecutor or complainant is a competent witness to support the complaint. 41. Justice may summon witnesses to attend and give evidence (1) A justice may issue a summons to a person requiring him to be and appear as a witness at a time and place mentioned in the summons before such justices as shall then be there to testify what he knows concerning the matter of a complaint or the matter to which an application under Part XA of this Act, or Part 3 or 4 of the Family Violence Act 2004 of the Family Violence Act 2004 , relates. (2) If the justice is satisfied by evidence upon oath that it is probable that a person whose evidence is desired will not attend to give evidence without being compelled so to do, then, instead of issuing a summons, he may issue a warrant in the first instance. (3) A person served with a summons issued under this section may, at any reasonable time before the time at which he is thereby required to appear, apply – (a) where the party responsible for the issue of the summons is a public officer, to a police officer of the rank of commander or a police officer who is in charge, or has for the time being the charge, of a police office or police station; and (b) in any other case, to the party responsible for the issue of the summons – to advance him a reasonable sum towards his costs and expenses of attending, and the person applied to shall, subject to subsection (4) , forthwith advance him that sum. (4) A person applied to under subsection (3) may – (a) if he is a public officer or an officer of the Commonwealth, arrange for a witness to use official transport to attend or return from the court; or (b) where it is reasonable to use public transport to attend or return from the court, provide a witness with a ticket or warrant enabling him so to travel – in lieu of advancing the witness the costs and expenses of that travel. 42. Failure of witness to attend (1) A person who, without reasonable excuse, fails or refuses to comply with a summons issued under section 41 is guilty of an offence. Penalty: Fine not exceeding 5 penalty units. (2) A justice before whom a person is summoned to appear as a witness may issue a warrant for the arrest of that person if – (a) that person fails or refuses to comply with the summons; and (b) a reasonable excuse for that failure or refusal is not given; and (c) the summons was served on that person or had come to that person's knowledge. (3) . . . . . . . . (4) A justice may – (a) refuse to admit to bail a person taken into custody under a warrant issued under subsection (2) and brought before the justice; (b) admit that person to bail; or (c) orally order that person to appear before a court of petty sessions at the time and place to which the proceedings in which that person is required as a witness have been adjourned. (5) An order under subsection (4) (c) has the same effect as a summons issued under section 41 . 43. Witness not answering If on the appearance of a person required as a witness before justices, either voluntarily or in obedience to a summons, or upon being brought before them by virtue of a warrant, that person – (a) refuses to be examined upon oath concerning the matters; (b) refuses to take an oath; or (c) having taken an oath refuses to answer such questions concerning the matter as are then put to him – without offering any sufficient excuse for his refusal, any justice then present and having there jurisdiction may by warrant commit the person so refusing to a gaol, there to remain and be imprisoned for 7 days, unless in the meantime he consents to be examined and to answer concerning the matter. 44. Production of documents before justices (1) When justices have authority to summon any person as a witness, they have the like authority to require and compel him to bring and produce, for the purposes of evidence, all documents and writings, or articles in his possession or power, and to proceed against him in case of neglect or refusal so to do in the same manner as in case of neglect or refusal to attend or refusal to be examined. (2) A person is not bound under this section to produce a document, writing, or article not specified or otherwise sufficiently described in the summons, or which he would not be bound to produce under a subpoena duces tecum in the Supreme Court. 45. Expenses of witnesses (1) A party to a proceeding under this Act, not being a public officer, is liable as in civil proceedings to a witness whose attendance at the proceedings he has procured by summons or otherwise for expenses and compensation, notwithstanding that an order may be or is made for the payment of that party's costs (including witnesses' expenses and compensation) by another party to the proceedings. (2) A party to a proceeding under this Act may ask the justices hearing it to fix the expenses and compensation of any witness to whom he is liable therefor, and the justices shall, before concluding the proceeding, make an order fixing them in accordance with the scale for the time being prescribed for the purposes of section 17 of the Criminal Procedure (Attendance of Witnesses) Act 1996 . (3) If the justices have reason to believe that a person who has appeared and given evidence, or, as the case may be, has appeared and produced any documents, writings, or articles, on the hearing of a complaint, has – (a) attempted to evade service of a summons served on him for that purpose; or (b) failed to appear in obedience to a summons so served or in pursuance of a recognizance to appear and give evidence – or if, in the opinion of the justices, the conduct or demeanour of that person when appearing before the justices on the hearing of the complaint is unsatisfactory or improper, the justices may expressly fix less than they would otherwise fix under this section or may refuse to make an order fixing the expenses and compensation to be paid to that person. (4) Where a person is liable to pay a witness in a proceeding under this Act a reasonable amount or as much as he deserves for expenses and compensation, an order under subsection (2) is conclusive of the amount. (5) . . . . . . . . (6) A public officer who is a party to a proceeding under this Act may, at or after the hearing, obtain an order under subsection (2) as if he were personally liable to the witnesses whose attendance at the proceeding he has procured, and may, in the case of an indictable offence, have included in the order the expenses and compensation of any person who might be entitled under section 17 of the Criminal Procedure (Attendance of Witnesses) Act 1996 as if he were personally liable to that person for the expenses and compensation. (7) A witness whose expenses and compensation are fixed by an order under subsection (6) is entitled to payment by the Secretary of the amount so fixed, out of moneys to be provided by Parliament for that purpose, upon claim made and verified as directed by the Attorney-General. (8) A clerk of petty sessions who receives a sum allowed for costs under section 77 shall account to the Secretary for any payment made under subsection (7) upon an order under subsection (6) obtained in the same proceedings. (9) A public officer who receives a sum allowed him for costs under section 77 shall pay over that sum to the clerk of petty sessions who would have received it if it had been levied by execution. (10) Payment under subsection (7) is taken as satisfaction of an entitlement under section 17 of the Criminal Procedure (Attendance of Witnesses) Act 1996 in respect of the same attendance of a witness. (11) Nothing in this section affects the operation of section 77 , and the justices are not bound to make the amount which a witness is entitled to receive under this section from the party who procured his attendance the same as the amount which they allow under that section against the opposite party. 46. Discharge of witness on recognizance A witness or person sought to be made a witness may be discharged upon recognizance. 47. Place of committal when defendant on remand (1) In this section – Chief Psychiatrist has the same meaning as in the Mental Health Act 2013 ; mental illness has the same meaning as in the Mental Health Act 2013 ; specified means specified in an order under this section that commits a defendant to a secure mental health unit. (2) Where justices have power to remand a defendant in custody, they may, instead of committing the defendant to a gaol, commit him or her to a secure mental health unit if – (a) the justices consider that remand is appropriate in the circumstances; and (b) the defendant appears to be suffering from a mental illness; and (c) the justices consider that the defendant should be admitted to a secure mental health unit for his or her own health or safety or for the protection of others; and (d) the Chief Psychiatrist has provided a report to the effect that – (i) the admission of the defendant to the secure mental health unit is necessary for his or her care or treatment; and (ii) adequate facilities and staff exist at the secure mental health unit for the appropriate care and treatment of the defendant; and (iii) in the case of a defendant who has not attained the age of 18 years, the secure mental health unit is the most appropriate place available to accommodate him or her in the circumstances having regard to the objectives and general principles set out in sections 4 and 5 of the Youth Justice Act 1997 . (3) If justices make an order under this Act that commits a person to a secure mental health unit – (a) the justices are to specify in the order that the specified person, or a person of the specified class of person, is to be responsible for taking the defendant to the specified secure mental health unit; and (b) the justices may specify in the order that the specified person or another specified person, or a person of the specified class or another specified class of person, is to be responsible for bringing the defendant from the specified secure mental health unit before justices in connection with the exercise by them of their powers under this Act. (4) A copy of the order that commits a defendant to a secure mental health unit and the report of the Chief Psychiatrist are to accompany the defendant to the specified secure mental health unit. (5) While a defendant is the responsibility of a person as specified in an order that commits the defendant to a secure mental health unit – (a) that person has the custody of the defendant; and (b) the defendant is taken to be a forensic patient for the purposes of the application of relevant provisions of Parts 4 and 5 of Chapter 2 of the Mental Health Act 2013 . (6) Each of the following persons may apply at any time to justices for the variation or revocation of an order committing a defendant to a secure mental health unit: (a) the Director of Public Prosecutions or prosecutor; (b) the Secretary of the responsible Department in relation to the Mental Health Act 2013 ; (c) the Chief Psychiatrist; (d) the defendant. (7) The Chief Psychiatrist must apply to justices for the revocation of an order committing a defendant to a secure mental health unit if the Chief Psychiatrist is of the opinion that the defendant no longer requires such treatment or could no longer benefit from such treatment. (8) On hearing an application, the justices – (a) may vary, revoke or confirm the order committing the defendant to a secure mental health unit; and (b) if they revoke the order, may make any other order they could have made under subsection (2) or section 35(1) . (9) An application is to be heard and determined within 14 days after it is made. (10) . . . . . . . . (11) The justices may make such orders as to the distribution and security of the report provided by the Chief Psychiatrist as they consider necessary or appropriate. (12) Unless the justices order otherwise, the Chief Psychiatrist must give, as soon as practicable, a copy of his or her report to – (a) the prosecutor; and (b) the lawyer representing the defendant or, if the defendant is unrepresented, the defendant. (13) The prosecution or the defence may dispute the whole or any part of the report of the Chief Psychiatrist. (14) If the whole or any part of the report of the Chief Psychiatrist is disputed, the justices must not take into consideration the report or part in dispute unless the party disputing the report or part has had the opportunity – (a) to lead evidence on the disputed matters; and (b) to cross-examine on the disputed matters the Chief Psychiatrist or, if the Chief Psychiatrist has delegated his or her function of writing the report, the author of the report. 48. Recognizances Where justices are authorized to discharge a witness or other person upon recognizance, they may order his discharge upon his entering into a recognizance, with or without sureties at their discretion, conditioned for his appearance at the time and place to which the hearing is adjourned, or which is named in the recognizance. 49. Issue of warrant for non-appearance If a witness or other person, does not appear at the time and place mentioned in the recognizance, then the justices who are there present may adjourn the hearing, and may issue a warrant for his apprehension. 50. Commitment The person to whom a warrant of commitment is directed shall convey the person therein named or described to the gaol or other place mentioned in the warrant, and there deliver him, together with the warrant, to the gaoler of that gaol or place, who shall thereupon give the person delivering the prisoner into his custody a receipt for the prisoner, setting forth the state and condition in which the prisoner was when he was delivered into the custody of the gaoler. 50A. Justices' record (1) Justices before whom any proceedings subject to this Part take place shall take, or cause to be taken, a record of – (a) the course of; (b) the evidence received in; and (c) their decision and orders in – those proceedings. (2) A party to proceedings subject to this Part or a person who appears to the clerk of petty sessions to have a sufficient interest in the subject-matter of the proceedings may, on application made to the clerk and upon payment of the relevant prescribed fee, obtain from the clerk a certified copy of the recording of the proceedings unless the clerk certifies that no recording of the proceedings exists from which a copy may be taken. (3) On receipt of an application under subsection (2) , the clerk may, if the recording of the proceedings has been transcribed, upon payment of the relevant fee prescribed in the rules of court, provide the applicant with a certified transcript of the recording. (4) For the purposes of subsections (2) and (3) , certified, in relation to a copy of the recording of proceedings or a transcript of the recording of those proceedings, means certified by the person who copied the recording, or who transcribed the recording, of the proceedings as being a true and accurate copy of the recording or transcript of the recording. 50B. Adjournment of proceedings (1) Any justice or justices hearing any proceedings may, after hearing such of the parties to the proceedings as are present in court, adjourn the proceedings to another court. (2) A clerk of petty sessions may, subject to any directions issued by the Chief Magistrate, adjourn any proceedings set down for hearing by a justice or justices in the clerk's district to another court if a written consent to the adjournment, signed by the parties to the proceedings or their lawyers or agents, is lodged with the clerk before the date of the hearing. (3) Where, pursuant to subsection (2) , a clerk of petty sessions adjourns proceedings to a court outside his district, he shall forward all necessary documents to the clerk of petty sessions for the district in which the court is situated. (4) The rules of court may provide for or with respect to matters incidental to the adjournment of proceedings under this section, including the continuation of bail and remand. 50C. Power to remand in certain cases (1) Where justices find that a person is guilty of an offence, the justices may, instead of sentencing that person for that offence forthwith, remand him for sentencing by themselves or by other justices. (2) Where justices remand a person under subsection (1) , those justices may order that a report or further information be obtained in respect of that person so that they or the other justices to whom that person is remanded to be sentenced, as the case may be, may be better informed as to the sentence that they should impose on him. (3) Where justices remand a person under subsection (1) to be sentenced by other justices, it is not necessary for those other justices to hear evidence as to the commission of the offence of which that person was found guilty by the first-mentioned justices, except in so far as those other justices may consider that that evidence will assist them in determining the sentence that should be imposed on him. 50D. Vexatious litigants (1) Where a person is declared to be a vexatious litigant under an order in force under section 194G of the Supreme Court Civil Procedure Act 1932 , that person may not, without the leave of the Chief Magistrate or the Deputy Chief Magistrate, institute any proceedings in a court of summary jurisdiction. (2) If proceedings are pending in a court of summary jurisdiction when an order is made as mentioned in subsection (1) , those proceedings are taken to be stayed unless leave is given as mentioned in that subsection. (3) Where proceedings pending in a court of summary jurisdiction are taken to be stayed and the person declared to be a vexatious litigant has not applied for, or has not been granted, leave to proceed in those proceedings, any other party to those proceedings may apply to a magistrate for an order for the costs incurred by that party in those proceedings. 50E. Chief Clerk of Petty Sessions may make application under Vexatious Proceedings Act 2011 The Chief Clerk of Petty Sessions may apply to the Supreme Court under the Vexatious Proceedings Act 2011 for a vexatious proceedings order in relation to a person who has instituted any proceedings in a court of summary jurisdiction under this Act. PART VII - Proceedings on Indictable Offences Division 1 - Proceedings where indictment filed 51. Certificate where indictment filed Where an indictment is filed in the Supreme Court by the Attorney-General, or other authorized officer, against a person then at large, whether that person is bound by any recognizance to appear to answer the indictment or is not so bound, the proper officer of the Supreme Court shall, at any time thereafter, if that person has not already appeared and pleaded to the indictment, grant to the officer filing the indictment, upon his application, a certificate that the indictment has been filed. 52. Summons or warrant may be issued against person indicted Where a certificate granted under section 51 is produced to a justice, he shall – (a) if the person producing the certificate requests him to do so, issue a summons to the person against whom the relevant indictment is filed, ordering him to appear before the Supreme Court at the day, time, and place specified in the summons and to be there dealt with; or (b) if no such request is made to the justice, issue his warrant to apprehend that last-mentioned person. 53. Committal Where a person is by virtue of a warrant issued under section 52 apprehended and brought before justices, and it is proved upon oath before them that the person apprehended is the person indicted, he shall, without further inquiry or examination, be committed for trial. 54. Detainer of prisoner in gaol If a person so indicted as mentioned in section 51 is, at the time of the production of the certificate under that section to the justice, confined in gaol for any other offence than that charged in the indictment, the justice, upon proof upon oath that the person indicted and the person so confined are one and the same, shall issue his warrant directed to the gaoler of the gaol in which the person indicted is then confined, commanding him to detain that person in his custody until he is lawfully removed therefrom for the purpose of being tried upon the indictment, or until he is otherwise removed or discharged out of his custody by due course of law. Division 2 - Examination and committal 55. Procedure when brought before justices (1) If at the first appearance before justices of a person charged with an indictable offence the person is not represented by a lawyer, the justices must – (a) cause the charge to be read to the person or explain to the person, in simple terms, the offence with which the person is charged; and (b) explain to the person his or her rights and duties under this Act in respect of the charge; and (c) invite the person to enter a plea to the charge. (2) The justices are not required to comply with subsection (1)(a) if they are satisfied that the defendant has received a copy of, and understands the nature of, the charge. (3) If a defendant charged with an indictable offence is attending before the Court for the first time in respect of that offence, the defendant may – (a) plead to the offence as specified in section 59 ; or (b) state that he or she does not wish to plead to the offence. (4) If the defendant pleads guilty to the offence and the charge is one in respect of which the defendant under section 72 is entitled to elect to be tried or sentenced either by justices or the Supreme Court, the defendant is to make that election unless the justices determine otherwise in the interests of justice. (5) If the defendant does not plead guilty to the offence charged or another offence as specified in section 59(1)(b) , the justices are to adjourn the proceedings for a period not exceeding 4 weeks. (6) Sub