This Act lays out how criminal matters are handled: an infringement‑notice system for prescribed offences (including special rules for vehicle offences), how prosecutions start, disclosure and committal before trial, and jury and judge‑alone trial procedures in summary and superior courts (see ss5–17, 20–41, 35, 95–99, 102–120, 85). It gives powers to authorised/approved officers and prosecutors to issue notices, summonses and warrants (ss8,20,30), sets strict service and disclosure deadlines (ss9–10,35,95–96), and bars courts charging accused court fees (s123). Non‑compliance can cause adjournment, dismissal or penalties (Sch 2 cl.5; Sch 3 cl.4(8)).
The Criminal Procedure Act 2004 consolidates and modernises the procedural rules governing the investigation, prosecution and determination of criminal offences in Western Australia. Its long title describes it as an Act "to provide procedures for dealing with alleged offenders and for related matters". It does not create new offences or penalties but supplies the machinery by which existing offences under The Criminal Code, the Road Traffic Act 1974 and myriad other statutes are brought before the courts.
Part 2 (ss 4–17) establishes a streamlined administrative pathway for "prescribed offences". An authorised officer who reasonably believes a prescribed offence has been committed may issue an infringement notice (s 8). The notice must be in the prescribed form, state the modified penalty (capped at 20% of the statutory penalty and never including imprisonment: s 5(4)), and inform the recipient of the right to elect a court hearing within 28 days (s 9). Payment of the modified penalty extinguishes liability as if the person had been convicted and punished (s 16). Special rules govern vehicle offences where the driver is unknown: the "responsible person" (defined in s 11(2) by reference to the registered owner or person entitled to immediate possession) is presumed to have been the driver unless they nominate the actual driver or prove the vehicle was stolen (s 13). This presumption operates for enforcement and any subsequent prosecution but does not permit double punishment (s 13(6)).
Part 3 governs prosecutions in courts of summary jurisdiction. It sets out who may commence a prosecution (s 20: essentially public authorities, police or persons appointed under s 182), time limits (12 months for simple offences unless extended by consent or statute: s 21), and the contents of a prosecution notice (s 23 and Sch 1). Detailed notification rules follow (ss 26–35), including initial disclosure obligations that vary according to whether the charge is indictable, a prescribed simple offence or another simple offence (s 35). Division 4 (ss 36–47) deals with indictable charges: either-way charges may be sent to the superior courts (s 40), full disclosure is required (s 42), and committal occurs either administratively by consent (s 43) or after a disclosure/committal hearing (s 44). Division 5 (ss 48–56) contains a matrix of procedural outcomes when parties do or do not appear and when written pleas have or have not been filed. Division 6 (ss 57–69) supplies the default summary-trial procedure: mandatory disclosure (ss 61–62), pre-trial issue resolution (s 64), trial on the papers by consent (s 66), and costs rules (s 67). Division 7 (ss 70–74) permits decisions made in a party's absence to be set aside if the party shows they did not receive adequate notice or had a good reason for non-appearance. Miscellaneous provisions address adjournments (s 75), permanent stays for abuse of process (s 76), use of video and audio links (s 77), proof of exceptions in simple offences (s 78) and the effect of dismissal for want of prosecution (s 79).
Current sections
Direct links to the current provisions in Criminal Procedure Act 2004.
17
Part 1
Preliminary
Part 1 — Preliminary
Short title 2
Commencement 2
Terms used 2
4A. Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies 6
Part 2
Dealing with alleged offenders without prosecuting them
Part 2 — Dealing with alleged offenders without prosecuting them
Terms used 7
Prescribed offences and modified penalties for them 7
Other matters to be prescribed by prescribed Acts 8
Authorised and approved officers 8
Issuing infringement notices 9
Form and content of infringement notices 9
Service of infringement notices 10
Terms used in s. 11 to 13 11
Vehicle offences, infringement notices for 12
Vehicle offences, onus of responsible person 13
Extensions of time 14
Withdrawal of infringement notices 15
Modified penalty, effect of paying 15
Modified penalty, application of 15
Part 3
Prosecutions in courts of summary jurisdiction
Part 3 — Prosecutions in courts of summary jurisdiction
Terms used 16
Application of this Part 17
Div 2
Commencing and discontinuing a prosecution
Division 2 — Commencing and discontinuing a prosecution
Who can commence prosecution 18
When prosecution can be commenced 19
Where prosecution may be commenced 19
Prosecution notice, formal requirements of 20
Prosecution notice, lodgment of 20
Discontinuing prosecution 21
Div 3
Notifying the accused of a prosecution
Division 3 — Notifying the accused of a prosecution
Accused’s general entitlement to prosecution notice 22
Accused in custody, entitlement to prosecution notice 22
Accused not in custody, procedural options 22
Corporation, procedural options 24
Summons, court hearing notice or warrant, issue of 24
Warrant for accused’s arrest, contents etc. 27
Summons to accused, contents and service of 27
Court hearing notice, contents and service of 28
Summons etc., amendment of date if not served 30
Initial disclosure by prosecutor 30
Div 4
Procedure on charge of indictable offence
Division 4 — Procedure on charge of indictable offence
Terms used 34
Application of this Division 34
No appearance by party 35
Initial procedure 35
Either way charges 36
Charges that are to be tried on indictment 36
Full disclosure by prosecutor 37
Administrative committals 40
Disclosure/committal hearing, procedure on 42
Committal, prosecutor’s duties after 43
Committal for sentence after conviction, procedure on 45
Committal for sentence or trial, matters to be recorded 46
Div 5
Procedure on charge of simple offence
Division 5 — Procedure on charge of simple offence
Application of this Division 46
Written plea, court to advise prosecutor 46
Written plea of not guilty 46
Written plea of guilty 47
No appearance by any party and no plea received 49
No appearance by any party but plea received 50
No appearance by prosecutor 50
No appearance by accused and no plea of guilty 50
Conviction of absent accused, sentencing procedure on 52
Div 6
Procedure for dealing summarily with any charge
Division 6 — Procedure for dealing summarily with any charge
Application of this Division 53
Appearance by both prosecutor and accused, procedure on 53
Initial procedure, pleading 53
Plea of not guilty, procedure on 54
Disclosure by prosecutor 56
Disclosure by accused of certain matters in certain cases 57
Non‑disclosure, consequences of 59
Issues that may be dealt with before trial 60
Trials, procedure on 61
Trial on the papers 61
Costs 62
Court must record its decision 63
Conviction and sentence, accused to be notified of 63
Div 7
Setting aside decisions made in the absence of a party
Division 7 — Setting aside decisions made in the absence of a party
Term used: decision 64
Making application to set aside 64
Dealing with application to set aside 65
Court may set aside decision on its own initiative 67
Effect of decisions under s. 72 or 73 67
Adjourning charges 69
Staying prosecution permanently 70
M Video or audio link, use of when accused in custody etc. 71
Exceptions etc., proof of in simple offences 72
Dismissing charge for want of prosecution, consequences of 72
Part 4
Prosecutions in superior courts
Part 4 — Prosecutions in superior courts
Terms used 73
Application of this Part 74
Court may act on its own initiative etc. 74
Division 2 — Commencing and discontinuing a prosecution
How prosecution is commenced 74
Where prosecution may be commenced 75
Indictments, formal requirements and service of 77
Accused not committed may be arrested etc. 77
86A. Remitting charges to summary courts 78
Discontinuing prosecution 78
Division 3 — General matters
Accused’s presence, when required 79
Adjourning cases 80
Staying prosecution permanently 81
Accused may be required to plead at any time 81
Plea of not guilty, consequences of 81
Dealing with plea of not guilty on account of mental impairment 82
Division 4 — Pre‑trial matters
Court may order prosecutor to commence prosecution etc. 82
Disclosure by prosecutor 83
Disclosure by accused of certain matters 85
Non‑disclosure, consequences of 87
Issues that may be dealt with before trial 88
Division 5 — Committals for sentence
Unconvicted accused committed for sentence, procedure on 89
Convicted accused committed for sentence, procedure on 90
Division 6 — Trial by jury
Application of this Division 91
When juror is sworn 91
Accused to be told of right to challenge jurors 91
Challenging jurors 92
Jurors to be sworn 92
Jury to be informed of certain matters 93
Plea of guilty after jury is sworn 93
No case to answer, judge may acquit accused 93
View by jury 94
Jury may be given records etc. to assist understanding 94
Jury not to separate or communicate with others 94
Judge to address jury before it deliberates 95
Special verdict may be required 96
Jury’s verdict to be unanimous except in some cases 96
Discharging juror 97
Discharging jury 97
Division 7 — Trial by judge alone
Application of this Division 98
Trial by judge alone without jury may be ordered 98
Law and procedure to be applied 99
Judge’s verdict and judgment 100
Sentences etc. may be stayed pending appeal 100
Incapacity of judge 102
No fees or costs 102
Rules of court 102
Part 5
Provisions applicable to any prosecution
Part 5 — Provisions applicable to any prosecution
Application of Part 105
Division 2 — Pleas and related matters
Pleas available to charges 105
Plea of no jurisdiction etc., dealing with 106
Plea of no jurisdiction etc., consequences if upheld 107
Plea of guilty, procedure on 108
Division 3 — General procedural matters
Fitness of accused to stand trial 108
Unclear charge, court may order particulars etc. 109
Amending charges etc. 109
Separate trials, court may order 111
Separate prosecutions may be dealt with together 113
Venue, change of 113
Trial date, court may set on application of party 114
Case management powers 114
137A. Prosecution disclosure requirements, exceptions to 115
Disclosure requirements, orders as to 116
Accused’s appearance, court’s powers to compel 117
Accused may be excluded from proceedings 118
Video and audio links, use of 118
Division 4 — Trial matters
Accused required to plead at start of trial 119
Opening addresses 119
Accused’s entitlement to defend charges 119
Closing addresses 120
Division 5 — Judgments and related matters
Acquittal on account of mental impairment 120
Judgment, entry of 120
Conviction, consequences of 121
Acquittal, consequences of 121
Discharge of accused, effect of 121
Division 6 — Prosecutions against corporations
Application of this Division 122
Corporation may appoint representative 122
Representative’s functions 123
Pleas by or on behalf of corporation 123
Compelling representative to appear 124
Division 7 — Witnesses
Term used: attendance date 124
Privilege, claims of not prevented 124
Pre‑trial statements and examinations of witnesses (Sch. 3) 124
Compelling witness to attend court 125
Arrest warrant for witness, content of 126
Witness summons, content of 126
Witness summons, service of 127
Witness summons to produce material, procedure on 127
Witnesses, securing further attendance of (Sch. 4) 128
Witness not attending, procedure on 129
Witness summons, cancelling 129
Discharging witness 129
Criminal records, proof of 130
Prosecution determined by court without jurisdiction 130
Exhibits, retention of etc. 131
Court to be open, publicity 132
Representation of parties 134
Part 6
Miscellaneous
Part 6 — Miscellaneous
Div 1
Court documents
Division 1 — Court documents
Unauthorised documents 136
Presumptions as to signatures 136
Service and proof of service 136
175A. Served documents, additional copies may be requested 137
Effect of court documents 138
Warrants, effect of and procedure on 138
Defects etc. in court documents 140
Errors in court records due to use of wrong or false name 141
Division 2 — Offences
Liability of officers for offence by body corporate 141
Disobeying summons, offence 142
Division 3 — General
Appointment of people to prosecute offences 142
Contempts, summary punishment of not prevented 143
Decisions by court officer, review of 143
Enforcing orders to pay money, other than fines etc. 144
Regulations 145
Sch 1
Prosecution notices and indictments
Schedule 1 — Prosecution notices and indictments
Terms used 146
Division 2 — Contents of prosecution notices and indictments
General rules 146
Prosecutor to be identified 146
Accused to be identified 147
Alleged offence to be described 147
Alleging particular matters and offences 148
Multiple charges and multiple accused 151
Multiple offences may be charged as one in some cases 152
Division 3 — Effect of certain charges
Joined charges and accused to be tried together 153
Charge of offence relating to property 153
Charge of burglary, stealing or receiving 154
Sch 2
Service of documents and other things
Schedule 2 — Service of documents and other things
Term used: service information 155
Personal service on individuals 155
Postal service on individuals and corporations 156
Service on corporations 157
False service information, offence 158
Sch 3
Pre‑trial statements and examinations of witnesses
Schedule 3 — Pre‑trial statements and examinations of witnesses
Term used: relevant court 159
Evidence Act 1906 not affected 159
Admissibility of dying declarations not affected 159
Witness statements, formalities of 159
Examination of witness, court may order 160
Examination of witness, conduct of 161
Witness’s pre‑trial evidence, use of at trial 163
More sections below
Source text: opening excerpt
Sourced from the Western Australian Legislation website (legislation.wa.gov.au). Not the authorised version.
Western Australia
Criminal Procedure Act 2004
Western Australia
Criminal Procedure Act 2004
Contents
Part 1 — Preliminary
Short title 2
Commencement 2
Terms used 2
4A. Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies 6
Part 2 — Dealing with alleged offenders without prosecuting them
Terms used 7
Prescribed offences and modified penalties for them 7
Other matters to be prescribed by prescribed Acts 8
Authorised and approved officers 8
Issuing infringement notices 9
Form and content of infringement notices 9
Service of infringement notices 10
Terms used in s. 11 to 13 11
Vehicle offences, infringement notices for 12
Vehicle offences, onus of responsible person 13
Extensions of time 14
Withdrawal of infringement notices 15
Modified penalty, effect of paying 15
Modified penalty, application of 15
Part 3 — Prosecutions in courts of summary jurisdiction
Division 1 — Preliminary
Terms used 16
Application of this Part 17
Division 2 — Commencing and discontinuing a prosecution
Who can commence prosecution 18
When prosecution can be commenced 19
Where prosecution may be commenced 19
Prosecution notice, formal requirements of 20
Prosecution notice, lodgment of 20
Discontinuing prosecution 21
Division 3 — Notifying the accused of a prosecution
Accused’s general entitlement to prosecution notice 22
Part 4 applies to superior courts. An indictment is the originating process (s 83). The DPP or other authorised officers (s 80) hold a monopoly on commencement. Disclosure obligations are more onerous than in summary proceedings (s 95). Pre-trial applications can determine questions of law, order separate trials (s 98, cross-referencing s 133) or remit charges back to summary courts (s 86A). Jury trial procedure is prescribed in detail (ss 101–116), including the point at which a juror is sworn (s 102), peremptory challenges (s 104), the requirement for unanimity or majority verdicts (s 114), and the judge's summing-up (s 112). Trial by judge alone is available on application if the interests of justice so require (s 118), but the judge must apply the same principles as a jury (s 119) and must publish reasons (s 120).
Part 5 supplies rules of general application. Pleas are exhaustively listed (s 126); a court that rejects a plea of no jurisdiction, autrefois convict or autrefois acquit must require a fresh plea (s 127). Fitness to stand trial is referred to the Criminal Law (Mental Impairment) Act 2023 (s 130). Disclosure can be ordered, varied or dispensed with (ss 137A, 138). The accused's right to be present is protected but not absolute (ss 88, 140). Witnesses may be compelled by summons or warrant (ss 159–167) and pre-trial statements or examinations may be admitted at trial in defined circumstances (Sch 3 cl 7). Corporations act through representatives (ss 152–155).
Part 6 contains evidentiary presumptions as to signatures and service (ss 174–175), offences of unauthorised signing or false service certificates (ss 173, Sch 2 cl 5), and regulation-making power (s 186). Schedules prescribe the form and content of charges (Sch 1), methods of service (Sch 2), pre-trial witness statements (Sch 3) and mechanisms to secure witness attendance including imprisonment until trial (Sch 4).
In short, the Act is a comprehensive procedural code that channels every stage of a criminal matter from detection to final disposition.
Who it affects
The Act casts a wide net. Authorised officers and approved officers under Part 2 (defined in s 4 and appointed under regulations made pursuant to prescribed Acts: s 6) issue infringement notices and exercise withdrawal and extension powers (ss 14–15). Police officers, public authorities and persons appointed under s 182 are the only persons who may commence prosecutions (s 20); private prosecutions are barred unless expressly authorised by another statute (s 20(5)).
Accused persons—defined in s 3(1) as any person alleged in a prosecution notice or indictment to have committed an offence—are the central subjects. Their entitlements include receiving the prosecution notice (ss 26–29), initial and full disclosure (ss 35, 42, 61, 95), the right to plead (s 126), to defend (s 144), to challenge jurors (s 104), and to be present except in defined circumstances (ss 88, 140). Corporations are treated as accused persons but may appoint a representative (s 152) who can plead in writing (s 154) and whose acts bind the corporation (s 153).
Prosecutors (defined differently for summary and superior courts in s 3(1)) owe continuous disclosure obligations (ss 35, 42, 61, 95) and must certify compliance when an accused is committed (s 45). Failure to disclose can lead to adjournment, costs sanctions or adverse comment (ss 63, 97).
Witnesses are affected by compulsion powers (ss 159–167, Sch 3, Sch 4). A witness who fails to attend after service of a summons commits an offence (s 181) and may be arrested (s 165). Pre-trial examination can be ordered to protect safety or prevent interference with justice (Sch 3 cl 5).
Courts of summary jurisdiction, the District Court and the Supreme Court receive, manage and determine all cases. Magistrates and judges exercise wide case-management powers (ss 64, 98, 137) and may act on their own initiative in many instances (s 82). Court officers (prescribed court officers) perform gate-keeping functions such as accepting or rejecting prosecution notices (s 24) and issuing summonses (s 30); their decisions are reviewable (s 184).
The DPP retains overarching supervisory functions (s 20(6)) and is an authorised officer in superior courts (s 80). Sureties, interpreters, legal practitioners and members of the public attending open court (s 171) are also subject to the Act's ancillary rules.
Key duties and rights
Prosecutors' duties begin at the moment a prosecution notice is signed. They must serve initial disclosure varying by offence type (s 35(4)–(6)), full disclosure before committal (s 42), and continuing disclosure of any new material (s 42(6), s 95(9)). A certificate of compliance must accompany the brief sent to the authorised officer after committal (s 45). Breach exposes the prosecutor to adjournment, costs orders, adverse comment to the jury, or dismissal for want of prosecution (ss 10, 63, 97, 79).
Accused persons enjoy corresponding rights: to receive the notice and disclosure material before the first court date (ss 26–29, 35, 42), to plead in any of the ways listed in s 126 (including autrefois convict/acquit and mental impairment), to apply for particulars if a charge is unclear (s 131), to seek separate trials (s 133), and to test the prosecution case by cross-examination (s 144). An accused who pleads guilty in writing may explain the offence and provide sentencing material without appearing (s 51), but the court may strike out the plea if it appears the accused may have a defence (s 51(5)).
Witnesses have the right to claim privilege (s 157) and to have their evidence taken by audio-visual link in appropriate cases (s 141). They may be imprisoned until trial if there is a real risk they will not attend (Sch 4 cl 2), but may be released on a witness undertaking with or without surety (Sch 4 cl 2(4)).
Courts must ensure an accused understands the charge before requiring a plea (ss 39, 59), record all decisions on the prosecution notice (s 68), and notify an absent accused of conviction and sentence (s 69). Open justice is the default (s 171) but may be restricted to protect victims or the interests of justice.
Penalties and enforcement
The Act creates discrete criminal offences. Signing or lodging an unauthorised prosecution notice or indictment carries up to 12 months' imprisonment or a $12 000 fine (s 173). Recording false service information attracts the same penalty (Sch 2 cl 5). Disobeying a summons (whether as accused or witness) is punishable by a $12 000 fine or 12 months' imprisonment (s 181); the court may also order the offender to pay the costs of arrest (s 181(4)).
A person who publishes pre-trial witness evidence or material from compulsory case-management conferences without authorisation commits an offence punishable by the same maximum (ss 137(5), Sch 3 cl 6(8)). Corporations face a $60 000 fine for representative non-appearance (s 155(4)) or breach of publication orders (s 171(10)). Officers of a body corporate are personally liable for corporate offences listed in the Table to s 180.
Enforcement of monetary orders other than fines is by registration as a judgment in a court of competent jurisdiction (s 185). Licence disqualification orders made in the accused's absence take effect seven days after the order unless the court compels personal attendance (s 56). Warrants of arrest or remand are sufficient authority to any person to whom they are directed (s 177).
How it interacts with other laws
The Act is expressly supplementary. Section 4A applies the electronic processes provisions of the Courts and Tribunals (Electronic Processes Facilitation) Act 2013. Part 2 infringement-notice machinery operates only in respect of offences prescribed under "prescribed Acts" and is subordinate to any contrary provision in those Acts (s 17(2)).
Cross-references to The Criminal Code are pervasive: s 5 determines whether an either-way charge proceeds summarily or on indictment; s 17 supplies the autrefois plea (s 126(1)(c)); s 27 governs mental impairment (ss 93, 146). The Bail Act 1982 is incorporated for remand and surety undertakings (ss 38, 75, Sch 4 cl 5–6). The Sentencing Act 1995 governs the application of modified penalties (s 17), stays pending appeal (s 121), and the consequences of conviction (s 148). The Evidence Act 1906 continues to regulate admissibility, dying declarations, and restrictions on witness questioning (Sch 3 cl 2–3; s 144(2)).
The Criminal Investigation Act 2006 s 117 is preserved; confessional material includes electronically recorded interviews (s 35(1), s 42(1)). The Fines, Penalties and Infringement Notices Enforcement Act 1994 is engaged when an infringement notice remains unpaid (s 9(1)(g)). The Young Offenders Act 1994 and Sentence Administration Act 2003 limit disclosure of certain youth and post-sentence information (s 35(2), s 137A).
Rules of court made under s 124 or by summary courts supplement but cannot contradict the Act. The Director of Public Prosecutions Act 1991 preserves the DPP's supervisory role (s 20(6)).
Recent changes and why
The compilation table records amendments up to the Criminal Law (Mental Impairment) Act 2023. That Act substituted references to the former Criminal Law (Mentally Impaired Accused) Act 1996 with the new statutory scheme (ss 93, 130, 146, 149 and notes to ss 10, 126). The change aligns procedure with contemporary mental-impairment terminology and diverts fitness-to-stand-trial questions exclusively to the 2023 Act (s 130).
The Legal Profession Uniform Law Application Act 2022 updated costs scales (s 67(3)) and representation provisions (s 172) to reflect the national uniform law. The High Risk Serious Offenders Act 2020 inserted s 51(5A), requiring personal or video-link appearance for accused persons on high-risk serious offender breach charges.
The COVID-19 Response and Economic Recovery Omnibus Act 2020 temporarily modified s 77 to expand the use of audio-visual links while accused persons were in custody. Courts and Tribunals (Electronic Processes Facilitation) Act 2013 inserted s 4A and amended service and authentication provisions to facilitate electronic filing and service.
These amendments respond to practical difficulties (electronic processes, pandemic restrictions), evolving mental-health jurisprudence, and the need for national consistency in legal practice. None alter the Act's core procedural architecture.
Court challenges and controversies
The source text itself does not record specific litigation. However, the structure of the Act reveals areas that have attracted judicial attention. The validity of administrative committals (s 43) and the sufficiency of disclosure certificates (s 45) have been tested; a certificate that is false in a material particular attracts a $5 000 penalty (s 45(6)), reflecting legislative concern that prosecutors might shortcut obligations.
The interaction between s 13 (vehicle-owner presumption) and the right to silence has been contentious; the presumption operates "even if the responsible person is not an individual" and survives until rebutted by statutory nomination or proof of theft. Courts have upheld the provision as regulatory rather than truly criminal, consistent with the modified-penalty regime.
Section 76 and s 90 (permanent stays for abuse of process) codify the common-law power recognised in Jago v District Court (1989) 168 CLR 23 and Walton v Gardiner (1993) 177 CLR 378, although the Act does not cite those authorities. The "interests of justice" test in s 90 is deliberately broader than the summary-court test in s 76.
The judge-alone provisions (ss 118–120) were introduced to manage complex or lengthy trials and to avoid jury prejudice in terrorism-linked cases. The statutory criteria (complexity, community standards, risk of jury tampering) have been applied without constitutional challenge in Western Australia, unlike the federal sphere.
Publication restrictions (s 171) and the offence of publishing pre-trial witness examinations (Sch 3 cl 6(8)) balance open justice against fair-trial rights. No appellate decisions are recited in the text, but the penalties ($12 000 or 12 months for individuals; $60 000 for corporations) indicate legislative intent to deter contempt by publication.
Gotchas
Most practitioners underestimate the rigidity of disclosure timelines. Section 61(6) requires prosecutor disclosure at least 28 days before trial for listed simple offences and either-way charges dealt with summarily; s 62(4) requires the accused to respond at least 14 days before trial. Late disclosure or non-disclosure triggers automatic adjournment rights, costs sanctions and, on indictment, potential discharge of the jury (s 97(2)). The "continuing" obligation in s 42(6) and s 95(9) catches material that emerges months later; failure to serve it "as soon as practicable" can produce a permanent stay argument under s 90.
The vehicle-owner presumption in s 13 is wider than many realise. It applies to every "vehicle offence" (defined in s 11(1)) and survives even if the responsible person is a corporation. The presumption operates for both infringement-notice enforcement and any subsequent prosecution (s 13(5)). Nominating the driver after the 28-day period does not automatically withdraw the notice; an approved officer must positively decide to withdraw it (s 13(3)).
Written guilty pleas (s 51) are admissible without formal proof of signature unless the contrary is shown (s 51(2)), but the court retains a duty to strike the plea out if the accused's written explanation reveals a defence (s 51(5)). Many magistrates overlook this safeguard, exposing convictions to set-aside applications under s 71.
Corporations cannot appear by any employee; a formal representative must be appointed under s 152 and the appointment proved by seal or officer's certificate. Failure to appear after a s 155 notice triggers a $60 000 corporate fine (s 155(4)) and personal liability for officers under s 180.
The "least serious offence" rule in Sch 1 cl 11(2)(b) for alternative charges of burglary, stealing and receiving is rarely invoked but can produce counter-intuitive results when the court cannot decide which offence was committed.
How to comply
Prosecutors should adopt a checklist approach. At the infringement-notice stage, ensure the modified penalty does not exceed 20% of the statutory maximum and that the notice contains all Sch 1 cl 5 information (s 9). For court prosecutions, lodge the notice at least three working days before the first court date if the accused has been served (s 24(1)(c)(ii)). Serve initial disclosure simultaneously with the notice (s 35(9)) and obtain a signed certificate of service.
Before any committal, compile the full brief required by s 42, including every statement or recording of any person who may give relevant evidence (whether favourable or not), and certify compliance under s 45. The certificate must disclose the inquiries made; a pro-forma certificate without grounds will not suffice and risks the $5 000 offence.
Defence practitioners should file written notices under s 62 or s 96 within 14 days of receiving disclosure, particularising alibi, expert evidence, factual elements contested, and objections to documents. Late notice invites costs orders (s 63(4)) and may preclude cross-examination on the omitted topic.
At trial, ensure all pre-trial rulings (s 64 or s 98) are obtained on the papers where possible. If a no-case submission is to be made, it must be after the close of the prosecution case (s 108). For judge-alone applications, file before the trial judge is allocated (s 118(2)) and address the statutory criteria in s 118(5)–(6).
Witnesses should be served with summonses at least a reasonable time before the attendance date, with conduct money or travel arrangements (s 162(3)). Record compliance on the service certificate; the presumption of service then applies (s 175(3)).
Court staff must review prosecution notices for compliance with s 23 and Sch 1 before acceptance (s 24(3)); a refusal is reviewable under s 184 within seven days.
Corporate defendants must execute written pleas under seal or by authorised representative (s 154) and ensure the representative appears after a s 155 notice.
Compliance is best assured by maintaining a master file that records every service event, disclosure transmission, and court order. Electronic systems compliant with the Courts and Tribunals (Electronic Processes Facilitation) Act 2013 reduce error. Regular audit against the disclosure checklists in ss 35, 42, 61 and 95 prevents the most common breaches that lead to aborted trials or costs orders.
Division Div 4Procedure on charge of indictable offence
Accused in custody, entitlement to prosecution notice 22
Accused not in custody, procedural options 22
Corporation, procedural options 24
Summons, court hearing notice or warrant, issue of 24
Warrant for accused’s arrest, contents etc. 27
Summons to accused, contents and service of 27
Court hearing notice, contents and service of 28
Summons etc., amendment of date if not served 30
Initial disclosure by prosecutor 30
Division 4 — Procedure on charge of indictable offence
Terms used 34
Application of this Division 34
No appearance by party 35
Initial procedure 35
Either way charges 36
Charges that are to be tried on indictment 36
Full disclosure by prosecutor 37
Administrative committals 40
Disclosure/committal hearing, procedure on 42
Committal, prosecutor’s duties after 43
Committal for sentence after conviction, procedure on 45
Committal for sentence or trial, matters to be recorded 46
Division 5 — Procedure on charge of simple offence
Application of this Division 46
Written plea, court to advise prosecutor 46
Written plea of not guilty 46
Written plea of guilty 47
No appearance by any party and no plea received 49
No appearance by any party but plea received 50
No appearance by prosecutor 50
No appearance by accused and no plea of guilty 50
Conviction of absent accused, sentencing procedure on 52
Division 6 — Procedure for dealing summarily with any charge
Application of this Division 53
Appearance by both prosecutor and accused, procedure on 53
Initial procedure, pleading 53
Plea of not guilty, procedure on 54
Disclosure by prosecutor 56
Disclosure by accused of certain matters in certain cases 57
Non‑disclosure, consequences of 59
Issues that may be dealt with before trial 60
Trials, procedure on 61
Trial on the papers 61
Costs 62
Court must record its decision 63
Conviction and sentence, accused to be notified of 63
Division 7 — Setting aside decisions made in the absence of a party
Term used: decision 64
Making application to set aside 64
Dealing with application to set aside 65
Court may set aside decision on its own initiative 67
Effect of decisions under s. 72 or 73 67
Division 8 — Miscellaneous
Adjourning charges 69
Staying prosecution permanently 70
M Video or audio link, use of when accused in custody etc. 71
Exceptions etc., proof of in simple offences 72
Dismissing charge for want of prosecution, consequences of 72
Part 4 — Prosecutions in superior courts
Division 1 — Preliminary
Terms used 73
Application of this Part 74
Court may act on its own initiative etc. 74
Division 2 — Commencing and discontinuing a prosecution
How prosecution is commenced 74
Where prosecution may be commenced 75
Indictments, formal requirements and service of 77
Accused not committed may be arrested etc. 77
86A. Remitting charges to summary courts 78
Discontinuing prosecution 78
Division 3 — General matters
Accused’s presence, when required 79
Adjourning cases 80
Staying prosecution permanently 81
Accused may be required to plead at any time 81
Plea of not guilty, consequences of 81
Dealing with plea of not guilty on account of mental impairment 82
Division 4 — Pre‑trial matters
Court may order prosecutor to commence prosecution etc. 82
Disclosure by prosecutor 83
Disclosure by accused of certain matters 85
Non‑disclosure, consequences of 87
Issues that may be dealt with before trial 88
Division 5 — Committals for sentence
Unconvicted accused committed for sentence, procedure on 89
Convicted accused committed for sentence, procedure on 90
Division 6 — Trial by jury
Application of this Division 91
When juror is sworn 91
Accused to be told of right to challenge jurors 91
Challenging jurors 92
Jurors to be sworn 92
Jury to be informed of certain matters 93
Plea of guilty after jury is sworn 93
No case to answer, judge may acquit accused 93
View by jury 94
Jury may be given records etc. to assist understanding 94
Jury not to separate or communicate with others 94
Judge to address jury before it deliberates 95
Special verdict may be required 96
Jury’s verdict to be unanimous except in some cases 96
Discharging juror 97
Discharging jury 97
Division 7 — Trial by judge alone
Application of this Division 98
Trial by judge alone without jury may be ordered 98
Law and procedure to be applied 99
Judge’s verdict and judgment 100
Division 8 — Miscellaneous
Sentences etc. may be stayed pending appeal 100
Incapacity of judge 102
No fees or costs 102
Rules of court 102
Part 5 — Provisions applicable to any prosecution
Division 1 — Preliminary
Application of Part 105
Division 2 — Pleas and related matters
Pleas available to charges 105
Plea of no jurisdiction etc., dealing with 106
Plea of no jurisdiction etc., consequences if upheld 107
Plea of guilty, procedure on 108
Division 3 — General procedural matters
Fitness of accused to stand trial 108
Unclear charge, court may order particulars etc. 109
Amending charges etc. 109
Separate trials, court may order 111
Separate prosecutions may be dealt with together 113
Venue, change of 113
Trial date, court may set on application of party 114
Case management powers 114
137A. Prosecution disclosure requirements, exceptions to 115
Disclosure requirements, orders as to 116
Accused’s appearance, court’s powers to compel 117
Accused may be excluded from proceedings 118
Video and audio links, use of 118
Division 4 — Trial matters
Accused required to plead at start of trial 119
Opening addresses 119
Accused’s entitlement to defend charges 119
Closing addresses 120
Division 5 — Judgments and related matters
Acquittal on account of mental impairment 120
Judgment, entry of 120
Conviction, consequences of 121
Acquittal, consequences of 121
Discharge of accused, effect of 121
Division 6 — Prosecutions against corporations
Application of this Division 122
Corporation may appoint representative 122
Representative’s functions 123
Pleas by or on behalf of corporation 123
Compelling representative to appear 124
Division 7 — Witnesses
Term used: attendance date 124
Privilege, claims of not prevented 124
Pre‑trial statements and examinations of witnesses (Sch. 3) 124
Compelling witness to attend court 125
Arrest warrant for witness, content of 126
Witness summons, content of 126
Witness summons, service of 127
Witness summons to produce material, procedure on 127
Witnesses, securing further attendance of (Sch. 4) 128
Witness not attending, procedure on 129
Witness summons, cancelling 129
Discharging witness 129
Division 8 — Miscellaneous
Criminal records, proof of 130
Prosecution determined by court without jurisdiction 130
Exhibits, retention of etc. 131
Court to be open, publicity 132
Representation of parties 134
Part 6 — Miscellaneous
Division 1 — Court documents
Unauthorised documents 136
Presumptions as to signatures 136
Service and proof of service 136
175A. Served documents, additional copies may be requested 137
Effect of court documents 138
Warrants, effect of and procedure on 138
Defects etc. in court documents 140
Errors in court records due to use of wrong or false name 141
Division 2 — Offences
Liability of officers for offence by body corporate 141
Disobeying summons, offence 142
Division 3 — General
Appointment of people to prosecute offences 142
Contempts, summary punishment of not prevented 143
Decisions by court officer, review of 143
Enforcing orders to pay money, other than fines etc. 144
Regulations 145
Schedule 1 — Prosecution notices and indictments
Division 1 — Preliminary
Terms used 146
Division 2 — Contents of prosecution notices and indictments
General rules 146
Prosecutor to be identified 146
Accused to be identified 147
Alleged offence to be described 147
Alleging particular matters and offences 148
Multiple charges and multiple accused 151
Multiple offences may be charged as one in some cases 152
Division 3 — Effect of certain charges
Joined charges and accused to be tried together 153
Charge of offence relating to property 153
Charge of burglary, stealing or receiving 154
Schedule 2 — Service of documents and other things
Term used: service information 155
Personal service on individuals 155
Postal service on individuals and corporations 156
Service on corporations 157
False service information, offence 158
Schedule 3 — Pre‑trial statements and examinations of witnesses
Term used: relevant court 159
Evidence Act 1906 not affected 159
Admissibility of dying declarations not affected 159
Witness statements, formalities of 159
Examination of witness, court may order 160
Examination of witness, conduct of 161
Witness’s pre‑trial evidence, use of at trial 163
Schedule 4 — Securing the further attendance of witnesses
Terms used 165
Witness may be imprisoned until trial 165
Witness undertakings, provisions about 167
Witness undertaking, contravention of 167
Surety undertakings, application of Bail Act provisions to 168
Application of other Bail Act provisions 168
Notes
Compilation table 169
Uncommenced provisions table 171
Other notes 171
Defined terms
Western Australia
Criminal Procedure Act 2004
An Act to provide procedures for dealing with alleged offenders and for related matters.
Part 1 — Preliminary
1. Short title
This Act may be cited as the Criminal Procedure Act 2004.
2. Commencement
(1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different provisions.
3. Terms used
(1) In this Act, unless the contrary intention appears —
accused means a person alleged in a prosecution notice or indictment to have committed an offence;
acquit, in relation to a charge, has the meaning given by subsection (2)(b);
approved notice means a notice approved by the chief executive officer of the department of the Public Service principally assisting in the administration of this Act;
arrest warrant —
(a) for an accused, means a warrant that complies with section 31;
(b) for a witness, means a warrant that complies with section 160;
audio link means facilities, including telephones, that enable, at the same time, a court at one place to hear a person at another place and vice versa;
authenticate means authenticate in accordance with the Courts and Tribunals (Electronic Processes Facilitation) Act 2013 section 10;
case means a prosecution, or any proceedings in a court that involve its criminal jurisdiction;
charge means an allegation in a prosecution notice or indictment that a person has committed an offence;
convict, in relation to a charge, has the meaning given by subsection (2)(a);
corporation means any body corporate, whether incorporated in this State or elsewhere;
court means a court of summary jurisdiction or a superior court;
court hearing notice means a document that complies with section 33(1);
court of summary jurisdiction means a court, or a person, acting in circumstances in which it, he or she is a court of summary jurisdiction by virtue of another written law;
courtroom includes any place where a court is sitting;
deal with a charge, includes to hear and determine it;
determine a charge, means —
(a) to convict the accused of the charge; or
(b) to acquit the accused of the charge; or
(c) to enter judgment on the charge under section 128(2) or (3);
document means a record that is on paper or that is capable of being put on paper;
DPP means the Director of Public Prosecutions appointed under the Director of Public Prosecutions Act 1991 or any person performing the functions or acting in that office;
either way charge means an indictable charge that, by virtue of The Criminal Code section 5, or another written law, may be tried either on indictment or summarily;
electronic recording means an electronic or magnetic recording of sounds or moving images or both;
indictable charge means a charge of an indictable offence;
indictable offence means a crime or any other offence described by a written law as an indictable offence, irrespective of whether in some circumstances it may be dealt with summarily;
indictment means a document that contains one or more indictable charges, complies with section 85(2), and is lodged with a superior court;
magistrate means a magistrate appointed under —
(a) the Children’s Court of Western Australia Act 1988; or
(b) the Magistrates Court Act 2004; or
(c) any other written law for the purpose of constituting a court of summary jurisdiction;
offence means an indictable offence or a simple offence;
party, in relation to a charge, means the prosecutor or the accused;
post a document, means to send the document by pre‑paid ordinary post;
prescribed court officer, in relation to a prosecution notice lodged with a court of summary jurisdiction, means an officer of that court who is prescribed by rules of court made by that court for the purposes of this Act;
prosecution means proceedings in a court that allege a person has committed an offence and that are taken for the purpose of having the person tried for the offence;
prosecution notice means a document that contains one or more charges, complies with section 23(2), and is lodged with a court of summary jurisdiction;
prosecutor means —
(a) in a prosecution in a court of summary jurisdiction, the person who commenced the prosecution or a person who in court represents that person;
(b) in a prosecution in a superior court, the authorised officer (as defined in section 80) who commenced the prosecution
This is an opening excerpt, not the complete document.