Part 1Introductory

Part 1—Introductory 1—Short title This Act may be cited as the Criminal Procedure Act 1921. 4—Interpretation (1) In this Act, unless inconsistent with the context— answer charge hearing—see section 109; case statement means a defence case statement or a prosecution case statement; the Chief Magistrate means the person for the time being holding, or acting in, the office of the Chief Magistrate under the Magistrates Act 1983; cognitive impairment includes— (a) a developmental disability (including, for example, an intellectual disability, Down syndrome, cerebral palsy or an autistic spectrum disorder); (b) an acquired disability as a result of illness or injury (including, for example, dementia, a traumatic brain injury or a neurological disorder); (c) a mental illness; defence case statement—see section 123; defendant means person charged with any offence or against whom relief is sought or granted; foreign restraining order means an order made under a law of another State or a Territory of the Commonwealth or New Zealand declared by regulation to be a law corresponding to Division 7 of Part 4; investigating officer means— (a) an officer of the police force; or (b) a person authorised under an Act to investigate offences; major indictable offence means any indictable offence except a minor indictable offence; minor indictable offence—see section 5; offence of violence means an offence where the offender— (a) uses a weapon, or threatens to use a weapon, against another; or (b) inflicts serious harm on another, or threatens to inflict serious harm on another, for the purpose of committing the offence, or escaping from the scene of the offence; personal service—see subsection (3)(a); the Principal Registrar means the Principal Registrar of the Magistrates Court; prosecution case statement—see section 123; Registrar means the Principal Registrar or any other Registrar of the Magistrates Court; restraining order means an order made under Division 7 of Part 4; rules means the rules of the Magistrates Court; sensitive material—see section 67H of the Evidence Act 1929; sensitive material notice—see section 67I of the Evidence Act 1929; sentencing law means the Criminal Law (Sentencing) Act 1988 or an Act enacted in substitution for that Act; sexual offence means an offence under the Criminal Law Consolidation Act 1935 of the following kind: (a) rape; or (ab) compelled sexual manipulation; or (b) indecent assault; or (ba) persistent sexual exploitation of a child or persistent sexual abuse of a child; or (c) any offence involving unlawful sexual intercourse or an act of gross indecency; or (ca) an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal Law Consolidation Act 1935; or (d) incest; or (e) any attempt to commit or assault with intent to commit, any of the foregoing offences; Special Act means statute, rule, regulation, or by-law authorising the making of the conviction or order, or the determination or adjudication in question, or otherwise specially applicable to the case; summary offence—see section 5; telephone includes any telecommunication device. (2) A reference in the provisions of this Act other than Part 7 to a solicitor shall be deemed to include a reference to a law clerk articled to the solicitor and appearing on the solicitor's instructions. (3) Subject to the rules, for the purposes of this Act, unless the contrary intention appears— (a) a reference to a summons, notice or other document, or documentary material, being served personally includes service by means described in section 27(1)(a) and (b); and (b) a reference to a summons, notice or other document, or documentary material, being served by post includes service by means described in section 27(1)(c), (d) and (e). 5—Classification of offences (1) Offences are divided into the following classes: (a) summary offences; (b) indictable offences—comprising minor indictable offences and major indictable offences. (2) A summary offence is— (a) an offence that is not punishable by imprisonment; (b) an offence for which a maximum penalty of, or including, imprisonment for two years or less is prescribed; (ba) an offence against Part 4 of the Criminal Law Consolidation Act 1935 involving $2 500 or less not being— (i) an offence of arson or causing a bushfire; or See sections 85 and 85B of the Criminal Law Consolidation Act 1935. (ii) an offence of violence; or (iii) an offence that is 1 of a series of offences of the same or a similar character involving more than $2 500 in aggregate; (c) an offence against Part 5 of the Criminal Law Consolidation Act 1935 involving $2 500 or less not being— (ai) an offence against Division 3 of that Part (robbery); or (i) an offence of violence; or (ii) an offence that is one of a series of offences of the same or a similar character involving more than $2 500 in aggregate, but an offence for which a maximum fine exceeding twice a Division 1 fine is prescribed is not a summary offence. (3) All offences apart from summary offences are indictable and of these— (a) the following are minor indictable offences: (i) those not punishable by imprisonment but for which a maximum fine exceeding twice a Division 1 fine is prescribed; (ii) those for which the maximum term of imprisonment does not exceed 5 years; (iii) those for which the maximum term of imprisonment exceeds 5 years and which fall into one of the following categories: (A) an offence involving interference with, damage to or destruction of property where the loss resulting from commission of the offence does not exceed $30 000; (AB) an offence involving a threat to interfere with, damage or destroy another person's property where, if the threat had been carried out, the loss would not have exceeded $30 000; (B) an offence against section 24(2) of the Criminal Law Consolidation Act 1935 (recklessly causing harm to another); (C) an offence against section 56 of the Criminal Law Consolidation Act 1935 (indecent assault) (not being an offence committed against a child under the age of 14 years); (D) an offence involving $30 000 or less against Part 5 of the Criminal Law Consolidation Act 1935, other than an offence against Division 3 (robbery) or an offence of violence; (E) an offence against section 169(1) or 170(1) of the Criminal Law Consolidation Act 1935 (serious criminal trespass etc) where the offence is a basic offence within the meaning of that Act and the intended offence is an offence of dishonesty (not being an offence of violence) involving $30 000 or less or an offence of interference with, damage to or destruction of property involving $30 000 or less; and (b) all other indictable offences are major indictable offences. (3a) For the purposes of the above classifications, an offence against section 85 or Part 5 of the Criminal Law Consolidation Act 1935 includes— (a) an offence of attempting to commit such an offence; or (b) an offence of aiding, abetting, counselling or procuring such an offence; or (c) an offence of conspiring to commit such an offence; or (d) an offence of being an accessory after the fact to such an offence. (4) For the purposes of the above classifications, an offence will be taken to involve a particular sum of money if that sum represents— (a) the amount or value of the benefit that the offender would have gained through commission of the offence; or (b) the amount of the loss that would have resulted from commission of the offence, assuming that the offence had been successfully completed and the offender had escaped detection. (5) If a law prescribes differential maximum penalties, then for the purposes of classifying the offence in accordance with the above rules, it will be taken to create separate offences which are (where necessary) to be separately classified in accordance with the above rules. (6) Where an offence may be either a summary offence or an indictable offence according to the circumstances surrounding its commission, or the antecedents of the defendant, and the offence is designated as a summary offence in the information charging the offence, then, subject to subsection (8), the circumstances and the defendant's antecedents will be conclusively presumed to be such as to make the offence a summary offence. (7) Where an offence may be either a minor indictable offence or a major indictable offence according to the circumstances surrounding its commission, or the antecedents of the defendant, and the offence is classified as a minor indictable offence in the information charging the offence, then, subject to subsection (8), the circumstances and the defendant's antecedents will be conclusively presumed to be such as to make the offence a minor indictable offence. (8) A defendant may, in accordance with the rules, challenge the classification of an offence in the information charging the offence and for the purposes of such a challenge the above presumptions do not apply. (9) Where a summary offence is erroneously dealt with as an indictable offence or a minor indictable offence is erroneously dealt with as a major indictable offence, the proceedings are not invalid but any penalties imposed should conform with what would be appropriate if the offence had been correctly classified at the inception of the proceedings. (10) If the Act under which an offence is created classifies an offence in a manner inconsistent with this section, that classification prevails. 6—Powers of Supreme Court may be exercised by a Judge in Chambers The authority and jurisdiction by this Act vested in the Supreme Court may, subject to any rules or orders of such Court in relation thereto, be exercised by a Judge of such Court sitting in court or in chambers. 7—Abolition of rule as to disputed title A court is not prevented from trying an offence by reason of the fact that the trial involves a dispute as to the title to property.