Div 3APleas to alternative offences and attempts in the Magistrates Court

Division 3A—Pleas to alternative offences and attempts in the Magistrates Court 115A—Pleas to alternative offences and attempts in the Magistrates Court (1) If, in the Magistrates Court, a person pleads not guilty to an offence charged but guilty to— (a) some other offence of which the person might be found guilty on trial for the offence charged; or (b) an attempt to commit the offence charged, and the plea of guilty is accepted by the prosecution, then the Court may— (c) if the offence to which the person pleads guilty is a major indictable offence—commit the person to a superior court for sentence or sentence the person in accordance with section 116; or (d) in any other case—sentence the person. (2) If a person (having pleaded not guilty to an offence charged referred to in subsection (1)) changes or withdraws a plea of guilty accepted under that subsection, nothing in this section is to be taken to prevent the filing of a fresh information in respect of the offence charged. Division 4—Forum for trial or sentence 116—Forum for sentence (1) If— (a) a defendant pleads guilty to a charge of a major indictable offence (other than treason, murder, or an attempt or conspiracy to commit, or assault with intent to commit, either of those offences); and (b) the prosecution and the defendant consent to the defendant being sentenced by the Magistrates Court, the Magistrates Court is to determine and impose sentence itself unless the Court is of the opinion that the interests of justice require committal to a superior court. (2) Subject to this section, the Magistrates Court may sentence a person for a minor or major indictable offence in the same way as for a summary offence. (3) In determining and imposing sentence in relation to an indictable offence, the Magistrates Court is to observe procedural rules specifically applicable to indictable offences. (4) The rules may provide that specified provisions of this Act or any other Act or law apply with necessary adaptations and modifications to sentencing by the Magistrates Court of a person charged with an indictable offence. (5) Where the Magistrates Court is to commit a defendant to a superior court for sentence, the following principles govern the choice of forum: (a) the defendant should be committed for sentence in the Supreme Court if— (i) the offence is treason, murder, or an attempt or conspiracy to commit, or assault with intent to commit, either of those offences; or (ii) the gravity of the offences justifies, in the opinion of the Magistrates Court, committal to the Supreme Court; (b) in any other case, the defendant should be committed to the District Court for sentence. 117—Forum for trial (1) The Magistrates Court will conduct a trial of a minor indictable offence (where the defendant has not elected, in accordance with the rules, for trial in a superior court) in the same way as a trial of a summary offence. (2) The rules may provide that specified provisions of this Act or any other Act or law apply with necessary adaptations and modifications to the trial by the Magistrates Court of a person charged with an indictable offence. (3) Where the Magistrates Court is to commit a defendant to a superior court for trial, the following principles govern the choice of forum: (a) the defendant should be committed for trial in the Supreme Court in the following cases: (i) where the charge is treason or murder, or an attempt or conspiracy to commit, or an assault with intent to commit, either of those offences; (ii) where a major indictable offence is charged and the circumstances of its alleged commission are of unusual gravity; (iii) where a major indictable offence is charged and trial of the charge is likely to involve unusually difficult questions of law or fact; (iv) where the case is of a kind prescribed by the regulations; (b) in any other case, the defendant should be committed for trial in the District Court. 118—Change of forum (1) Where the Supreme Court is of the opinion that a defendant committed for trial or sentence in the Supreme Court (not being a defendant committed for trial or sentence on a charge of treason or murder, or an attempt or conspiracy to commit or an assault with intent to commit either of those offences) should be tried or sentenced in the District Court, the Supreme Court may order that the case be referred to the District Court. (2) Where the Supreme Court is of the opinion that a defendant committed for trial or sentence in the District Court should be tried or sentenced in the Supreme Court, the Court may remove the case into the Supreme Court. (3) Where the District Court is of the opinion that a defendant committed for trial or sentence in the District Court should be tried or sentenced in the Supreme Court, the Court may order that the case be referred to the Supreme Court. (4) Where a case is referred to the District Court or removed or referred to the Supreme Court under this section, the case will proceed as if the committal had been to the Court to which the case is referred or removed. (5) In deciding whether to exercise its powers under this section, the Supreme Court or the District Court will have regard to— (a) the gravity of the case; and (b) the difficulty of any questions of law or fact; and (c) the views (insofar as they have been expressed) of the prosecutor and defendant; and (d) any other relevant factors. 119—Change of plea following committal for sentence (1) A person who has been committed to a superior court for sentence in relation to a charge of an offence may only enter a change of plea in the superior court in relation to that charge with the permission of the court. (2) If the superior court gives permission for a change of plea, the superior court may, if satisfied that the interests of justice require it to do so, remit the case to the Magistrates Court for preliminary examination of the charge. (3) The change of plea must not be made the subject of any comment to the jury at a subsequent trial of the charge. Division 5—Procedure following committal for trial or sentence 120—Fixing of arraignment date and remand of defendant (1) Where the Magistrates Court commits a defendant to a superior court for trial, the Magistrates Court must fix a date for the defendant's arraignment and in doing so must— (a) have regard to information provided by the prosecution as to the material to be considered for the purposes of completion of the prosecution case statement and the time within which it is expected that the prosecution case statement can be completed; and (b) have regard to information (if any) provided by the defendant as to the time that may be required for the purposes of completion of the defence case statement; and (c) ensure that the date fixed for the arraignment— (i) allows a period of at least 6 weeks (or such longer period as may be necessary in the circumstances) for the completion of the prosecution case statement; and (ii) allows an additional period of not less than 6 weeks (to ensure that all of the case statement requirements set out in section 123 can be complied with). (2) Where the Magistrates Court commits a defendant who is a natural person to a superior court for trial or sentence, the Court will remand the defendant in custody or release the defendant on bail to await trial or sentence. 121—Material to be forwarded by Registrar Where a person is committed for trial or sentence, the Principal Registrar must forward to the relevant prosecution authority— (a) a copy of the order for committal; (b) a transcript of the oral evidence (if any) taken in the committal proceedings. 122—Prosecution may decline to prosecute (1) If, on examining the committal brief for a matter committed to a superior court for trial, the prosecution is of the opinion that there is no reasonable ground for putting the person committed for trial on trial for an offence, the prosecution may so certify in the form prescribed by the rules of the superior court. (2) If the prosecution has certified that the prosecution will not be filing an information against an accused person— (a) if the person is in prison, a judge of the Supreme Court or the District Court may, by warrant in the form prescribed by the rules of the relevant court, direct— (i) the Chief Executive within the meaning of the Correctional Services Act 1982; or (ii) the person in whose custody the person is, immediately to discharge the person from prison in respect of the offence mentioned in that warrant; or (b) if the person is on bail—the recognizances of bail taken from the person and the person's sureties become void on the prosecution so certifying. 123—Case statements (1) Subject to section 122, where the Magistrates Court commits a defendant charged with an indictable offence to a superior court for trial, the prosecution— (a) must present, or cause to be presented, an information against that person; and (b) must, not less than 6 weeks before the date fixed for the defendant's arraignment in the superior court— (i) file in that court; and (ii) give to the defendant or a legal practitioner representing the defendant, a prosecution case statement. (2) A prosecution case statement must include (in accordance with prosecution duties of disclosure) the following: (a) a summary of the alleged facts; (b) a description of evidence that may be led by the prosecution in relation to each element of the offence; (c) a list of the witnesses the prosecution intends to call at trial; (d) details of each expert witness the prosecution intends to call at trial; (e) details of any additional witness statement that the prosecution is aware will be obtained, but which has not yet been obtained; (f) whether the prosecution intends to lead discreditable conduct evidence (within the meaning of section 34P of the Evidence Act 1929) that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue and, if so, details of that evidence; (g) whether the prosecution intends to make any pre-trial applications under the Evidence Act 1929 and, if so, a copy of any such application; (h) whether the trial is one that is to be given priority under section 50B of the District Court Act 1991; (i) an estimate of the length of the prosecution case; (j) whether any interpreter will be required for the prosecution case (and if so, the language that the interpreter will be required to interpret). (3) A defendant committed to a superior court for trial on a charge of an indictable offence must, not more than 4 weeks after being given the prosecution case statement— (a) file in that court; and (b) give to the prosecution, a defence case statement. (4) A defence case statement must include the following: (a) any facts of the offence set out in the prosecution case statement which the defendant admits in accordance with section 34 of the Evidence Act 1929; (b) any elements of the offence set out in the prosecution case statement which the defendant admits in accordance with section 34 of the Evidence Act 1929; (c) any witnesses the defendant asks the prosecution to call (being witnesses who have provided a statement but who are not included in the list of the witnesses the prosecution intends to call at trial contained in the prosecution case statement); (d) whether the defendant consents to any of the prosecution applications included in the prosecution case statement; (e) whether the defendant intends to introduce— (i) expert evidence; or (ii) evidence of alibi (within the meaning of section 124), (in which case section 124 must also be complied with); (f) whether the defendant intends to raise any of the following prior to commencement of the trial: (i) issues relating to joinder or severance; (ii) issues relating to cross-admissibility of evidence; (iii) challenges to the legality of any searches; (iv) challenges to the admissibility of any other prosecution evidence; (v) applications for stay of proceedings; (vi) issues relating to chain of evidence or continuity of custody of exhibits; (vii) any other points of law; (g) whether the defendant agrees with the prosecution estimate of the length of the prosecution case and the defendant's estimate of the length of the trial; (h) whether the defendant will apply for trial by judge alone; (i) whether the defendant requires any interpreter (and if so, the language that the interpreter will be required to interpret). (5) A defence case statement must be in the form of a written statement verified by declaration (which may form part of the statement and must be signed by the defendant personally or be signed by a legal practitioner representing the defendant or, in the case of a body corporate, by a legal practitioner representing the body corporate) and complying with any other requirements prescribed by the regulations. (6) The obligation to disclose information or material of a kind that is required to be included in a case statement under this section is ongoing until— (a) the defendant is convicted or acquitted of the offence; or (b) the prosecution is terminated. (7) In accordance with subsection (6), if— (a) any information or material included in a case statement by a party subsequently changes; or (b) any information or material is obtained or anything else occurs after a case statement has been filed in a court by a party that would have been required to be included in that party's case statement if it had been obtained or had occurred before the case statement was so filed, the information, material or occurrence is to be disclosed to the other party to the proceedings as soon as practicable. (8) If subsection (7) applies to a defendant, the defendant may file and give to the prosecution an updated case statement that includes the information or material or that discloses the occurrence. (9) The regulations may prescribe circumstances in which the prosecution will be required to file in the relevant superior court and give to the defendant or a legal practitioner representing the defendant a response to the defence case statement (or updated defence case statement) and may impose any requirements in relation to such response. (10) For the purposes of this Act, any information or material provided by the prosecution to the defence before the prosecution case statement was filed in a court will be taken to form part of the prosecution case statement. (11) Where proceedings have been instituted in a superior court by the Director of Public Prosecutions laying an information ex officio in accordance with section 103, this section and section 124 apply in relation to those proceedings with the modifications prescribed by the rules of the superior court. (12) Where 2 or more defendants are jointly charged with an indictable offence, the prosecution and defence case statements required in relation to the trial of each defendant in a superior court must be given to each other defendant in accordance with any orders made by the superior court (whether on arraignment of the defendants or at any later time). (13) A court may make orders modifying the application of any requirement under this section or section 124— (a) in relation to a defendant who is unrepresented; or (b) in relation to any party to proceedings if the court is satisfied that the modification is necessary because of exceptional circumstances. 124—Expert evidence and evidence of alibi (1) If a defendant is to be tried for an indictable offence in a superior court, and expert evidence or evidence of alibi is to be introduced for the defence, notice of intention to introduce the evidence must be prepared in accordance with this section and be— (a) filed in the court at the same time that the defence case statement is filed in the court; and (b) given to the prosecution at the same time that the defence case statement is given to the prosecution. (2) If expert evidence becomes available to the defence after the time referred to in subsection (1), or any information specified in a notice under subsection (1) relating to expert evidence subsequently changes, the defendant must, as soon as practicable after such evidence becomes available or the defence becomes aware of such changes, file in the relevant superior court and give to the prosecution a notice or updated notice (as the case may require) under this section. (3) Notice of proposed evidence of alibi is not required under this section if the same evidence, or evidence to substantially the same effect, was received in the committal proceedings at which the defendant was committed for trial. (4) A notice relating to expert evidence must— (a) set out the name and qualifications of the expert; and (b) describe the general nature of the evidence and what it tends to establish. (5) A notice relating to evidence of alibi must contain— (a) a summary setting out with reasonable particularity the facts sought to be established by the evidence; and (b) the name and address of the witness by whom the evidence is to be given; and (c) any other particulars that may be required by the rules. (6) A notice under this section— (a) must be in the form of a written statement verified by declaration (which may form part of the notice and must be signed by the defendant personally or be signed, in the presence of the defendant, by a legal practitioner representing the defendant or, in the case of a body corporate, by a legal practitioner representing the body corporate) and complying with any other requirements prescribed by the regulations; and (b) is taken to form part of the defence case statement for the purposes of this Act. (7) If the defence proposes to introduce expert psychiatric evidence or other expert medical evidence relevant to the defendant's mental state or medical condition at the time of an alleged offence, the court may, on application by the prosecutor, require the defendant to submit, at the prosecutor's expense, to an examination by an independent expert approved by the court. (8) The defendant must provide to the prosecution a copy of any report obtained by the defendant from a person proposed to be called to give expert evidence at the trial if— (a) the expert evidence is of a kind referred to in section 34N(2a) of the Evidence Act 1929; or (b) the court has, on application by the prosecution, made an order requiring the defendant to provide a copy of the report to the prosecution. evidence of alibi means evidence given or adduced, or to be given or adduced, by a defendant tending to show that the defendant was in a particular place or within a particular area at a particular time and therefore tending to rebut an allegation made against the defendant, either in the charge on which the defendant is to be tried or in evidence adduced in support of the charge at committal proceedings. 125—Failure to comply with disclosure requirements (1) A superior court determining proceedings for an indictable offence may refuse to admit evidence in the proceedings that is sought to be adduced by a party who has failed to comply with disclosure requirements applying to the evidence. (2) A superior court may grant an adjournment to a party to proceedings for an indictable offence if— (a) another party seeks to adduce evidence in the proceedings and failed to comply with disclosure requirements applying to the evidence; and (b) the evidence would prejudice the case of the party seeking the adjournment. (3) If, in proceedings for an indictable offence before a superior court— (a) the prosecution receives notice under section 124 of an intention to introduce expert evidence after the time at which the defence case statement was required to be given to the prosecution in accordance with section 123; or (b) expert evidence that has not been previously disclosed to the prosecution is admitted at the trial, the court should, on application by the prosecution, grant an adjournment to allow the prosecution a reasonable opportunity to obtain expert advice on the proposed evidence unless there are good reasons to the contrary (and, if a jury has been empanelled and the adjournment would, in the court's opinion, adversely affect the course of the trial, the court may discharge the jury and order that the trial be re-commenced). (4) The regulations may make provision for, or with respect to, the exercise of the powers of a court under subsection (1) and (2) (including the circumstances in which the powers may not be exercised). (5) Without limiting the regulations that may be made under subsection (4), the powers of a court may not be exercised under subsection (1) to prevent a defendant adducing evidence unless the prosecution has complied with the disclosure requirements applying to the prosecution. (6) If a defendant in proceedings for an indictable offence in a superior court fails to comply with disclosure requirements applying under section 124, the failure may be made the subject of comment to the jury by the prosecutor or the judge (or both). (7) Except with the permission of the court, evidence in rebuttal of an alibi must not be adduced after the close of the case for the prosecution. (8) Permission will be granted under subsection (7) where the defendant gives or adduces evidence of alibi that was not disclosed, or was not sufficiently disclosed, in accordance with the disclosure requirements (but this section does not limit the discretion of the court to grant such permission in any other case). disclosure requirements, in relation to a party to proceedings, means a requirement to disclose or otherwise provide information or material applying to that party under section 123 or section 124. 126—Subpoenas (1) A subpoena may only be issued in relation to proceedings for an indictable offence in a superior court— (a) by the registrar of the superior court if— (i) the subpoena is only issued for the purpose of compelling a witness to give oral evidence in the proceedings; or (ii) each party to the proceedings and each person to whom the subpoena will apply (if granted) consent to the grant of the subpoena; or (b) by a master or judge of the superior court on an application under this section. (2) A master or judge must not grant an application under subsection (1)(b) unless satisfied that it is in the interests of justice for the subpoena to be issued. 127—Prescribed proceedings (1) The Supreme Court and the District Court must make rules for expediting prescribed proceedings and, if there has been a determination by a bail authority under the Bail Act 1985 that the defendant in such proceedings is a serious and organised crime suspect, the trial of the matter must be commenced within the period of 6 months after the making of that determination, unless the determination ceases to apply or the court determines— (a) on its own initiative, that it is not reasonably practicable for the court to deal with the matter within that period; or (b) on application by the Director of Public Prosecutions or the defendant, that exceptional circumstances exist that justify the matter being set down for trial at a later date. prescribed proceedings means proceedings for— (a) an alleged serious and organised crime offence; or (b) an offence joined in the same information as an alleged serious and organised crime offence, where the proceedings have been instituted in a superior court by the Director of Public Prosecutions laying an information ex officio in accordance with section 103. Division 6—Pleas and proceedings on trial in superior court 128—Objections to informations in superior court, amendments and postponement of trial (1) An application to quash an information on the basis of a formal defect apparent on the face of the information must be made before the jury is empanelled and not afterwards. (2) Subject to subsection (3), the court may before trial, or at any stage of a trial, make an order to amend an information as the court thinks necessary if— (a) the information is defective; or (b) there is a variation between a particular stated in the information and the evidence offered in proof of that particular. (3) An order should not be made under subsection (2) if, having regard to the merits of the case, the proposed amendment to the information cannot be made without causing injustice. (4) If the court makes an order to amend an information under subsection (2)— (a) the order must be noted and endorsed on the information; and (b) the information will be treated, for the purposes of the trial and all connected proceedings, as having been presented in the amended form. (5) If before trial, or at any stage of a trial the court forms the opinion that as a result of exercising a power under this Act to— (a) amend an information; or (b) order a separate trial of a count, it is expedient to postpone the trial, the court may make such an order. (6) If an order of the court is made for a separate trial or for the postponement of a trial— (a) in the case of an order made during a trial—the court may order that the jury be discharged from giving a verdict on the count or counts the trial of which is postponed or on the whole information, as the case may be; and (b) the procedure on the separate trial of a count will be the same in all respects as if the count had been presented as a separate information and the procedure on the postponed trial will be the same in all respects (if the jury has been discharged) as if the trial had not commenced; and (c) the court may make such other orders as the court thinks fit, including as to admitting the accused person to bail and the enlargement of recognizances. (7) Any power of the court under this section is in addition to and does not limit any other power of the court for the same or similar purposes. 129—Plea of not guilty and refusal to plead (1) A person arraigned on an information who pleads not guilty will, by that plea, without any further form, be taken to have put themself on the country for trial (and the court must, in the usual manner, proceed to the trial of that person accordingly). (2) If any person, being so arraigned, refuses or fails to enter a plea to the information, it is lawful for the court to order a plea of not guilty to be entered on the person's behalf and the person will be treated as if the person had pleaded not guilty. 130—Form of plea of autrefois convict or autrefois acquit In any plea of autrefois convict or of autrefois acquit, it is sufficient for the defendant to allege that they have been lawfully convicted or acquitted, as the case may be, of the offence charged in the information, without specifying the time or place of the previous conviction or acquittal. 131—Certain questions of law may be determined before jury empanelled A superior court before which a person has been arraigned may, if it thinks fit, hear and determine any question relating to the admissibility of evidence or any other question of law affecting the conduct of the trial before the jury is empanelled. 132—Determinations of court binding on trial judge A determination or order made by a judge of the superior court in proceedings dealing with charges laid in an information is binding on a judge of the court presiding at the trial of the defendant, whether the trial is the first or a new trial following a stay of the proceedings, discontinuance of an earlier trial or an appeal, unless— (a) the trial judge considers that it would not be in the interests of justice for the determination or order to be binding; or (b) the determination or order is inconsistent with an order made on such an appeal. 133—Conviction on plea of guilty of offence other than that charged If a person arraigned on an information pleads not guilty of an offence charged in the information but guilty of some other offence of which the person might be found guilty on trial for the offence charged, and the plea of guilty is accepted by the prosecution, then (whether or not the 2 offences are separately charged in distinct counts)— (a) the person may be convicted on the plea of guilty, sentenced for the offence to which the plea of guilty is entered and the conviction operates as an acquittal of the offence charged; and (b) if the person has been placed in the charge of the jury, the jury may be discharged without being required to give a verdict (unless the trial is to continue in respect of further counts that are unaffected by the plea). 134—Power to require notice of intention to adduce certain kinds of evidence (1) A court before which a defendant is to be tried on information may, on application by the prosecutor, require the defence to give the prosecution written notice of an intention to introduce evidence of any of the following kinds: (a) evidence tending to establish that the defendant was mentally incompetent to commit the alleged offence or is mentally unfit to stand trial; (b) evidence tending to establish that the defendant acted for a defensive purpose; (c) evidence of provocation; (d) evidence of automatism; (e) evidence tending to establish that the circumstances of the alleged offence occurred by accident; (f) evidence of necessity or duress; (g) evidence tending to establish a claim of right; (h) evidence of intoxication. (2) Before making an order under this section, the court must satisfy itself that— (a) the prosecution has provided the defence with the prosecution case statement in accordance with section 123; and (b) the prosecution has no existing, but unfulfilled, obligations of disclosure to the defence. (3) Non-compliance with a requirement under subsection (1) does not render evidence inadmissible but the prosecutor or the judge (or both) may comment on the non‑compliance to the jury. (4) A court before which a defendant is to be tried on information may require the defence to notify the prosecutor, in writing, whether the defendant consents to dispensing with the calling of prosecution witnesses proposed to be called to establish the admissibility of specified intended evidence of any of the following kinds: (a) documentary, audio, visual, or audiovisual evidence of surveillance or interview; (b) other documentary, audio, visual or audiovisual evidence; (c) exhibits. (5) If the defence fails to comply with a notice under subsection (4), the defendant's consent to the tender of the relevant evidence for purposes specified in the notice will be conclusively presumed. 135—Inspection and copies of statements A defendant is entitled— (a) at the time of the person's trial, to inspect, without fee or reward, all statements taken against the defendant which are in the custody of the court; and (b) at any time before the defendant's trial, to have a copy of all statements taken against the defendant from the person having the lawful custody thereof, on payment of such fee as the court or a judge may direct. 136—Defence to be invited to outline issues in dispute at conclusion of opening address for the prosecution (1) On the trial of an offence on information in a superior court, the judge is to invite the defendant, at the conclusion of the prosecutor's opening address, to address the court to outline the issues in contention between the prosecution and the defence. (2) The defendant may then address the court accordingly or decline the invitation. (3) If the trial is before a jury, the invitation to exercise a right under this section must be made in the absence of the jury and a defendant's failure to exercise a right that the defendant has been invited to exercise under this section is not to be made the subject of comment by the judge or the prosecutor to the jury. 137—Right to call or give evidence (1) A person charged with an offence may, at the conclusion of the evidence for the prosecution, give or call evidence in the person's defence. (2) If evidence is to be given for the defence, the defendant may, before giving or calling the evidence, address the court outlining the case for the defence. (3) If there are 2 or more defendants, an address on behalf of any of those defendants must be given before evidence is given by or on behalf of that defendant and, if the court so directs, before evidence is given by or on behalf of any of the defendants. (4) A defendant may exercise a right to address the court under this section even though the defendant has already addressed the court to outline issues in contention between the prosecution and the defence. 138—Right of reply (1) At the conclusion of the evidence, the prosecutor and the defendant are entitled to address the court on the evidence. (2) The address for the prosecution is to be made before any address for the defence. 139—Postponement of trial (1) No person is entitled to traverse or postpone the trial of any information presented against the person in a court of criminal jurisdiction but, if the court is of the opinion that a trial should, for any reason, be adjourned, it may— (a) adjourn it to any day during the current sessions, or to the next sessions, on such terms as to bail or otherwise as it thinks fit; and (b) respite the recognizances of the prosecutor and witnesses accordingly, in which case the prosecutor and witnesses are bound to attend on the day to which the trial has been adjourned without entering into any fresh recognizances for that purpose. (2) Nothing in this section extends to any prosecution by information in the nature of a quo warranto. 140—Verdict for attempt where full offence charged If on the trial of a person charged with any offence it appears to the jury on the evidence that the defendant did not complete the offence charged but that the person was guilty only of an attempt to commit the offence— (a) the jury may return as their verdict that the defendant is guilty of an attempt to commit the offence charged; and (b) in that case—the defendant will be liable to be punished in the same manner as if the defendant had been convicted on an information for such an attempt.