Criminal Procedure Act 2004

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.

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.

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).

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)).

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.

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.

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.

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.