Justices of the Peace constitute an integral part of the administration of Justice in Tasmania. Because of the continuing and important role Justices play with respect to both their judicial and ministerial functions, this guide has been prepared for the use of Justices to assist them in their work.
It is expressed in plain language, and is designed to give basic guidelines in the situations Justices will most commonly meet. It is recommended that those Justices called upon to act judicially use the Guide in conjunction with the Justices Act 1959.
The annotated Act can be obtained from the Tasmanian Government Printing Office. A copy of the Act for the use of Justices of the Peace is maintained in each of the Magistrates Courts at Hobart, Launceston, Burnie and Devonport.
1.1 The legal system and the Justice of the Peace
1.3 Glossary and explanatory notes
2. The performance of ministerial (or non-judicial) functions
2.1 Taking an oath or affirmation
2.2 Taking of statutory declarations
3. The performance of judicial or quasi-judicial functions
3.2 Making of complaints and issuing the summonses
5. Appendices
A Justice of the Peace is appointed for the State and is competent to act anywhere within the State.
When a Justice ceases to reside in the State, the appointment is deemed to be revoked. However, it is possible for a person to be appointed as a Justice while resident outside the State.
A person appointed a Justice who is resident outside the State is an extra-territorial Justice and his or her powers are exercisable only at or in the place or country outside the State mentioned in the instrument of appointment.
The mayors of cities and municipalities are Justices during their continuance in office. Certain other people are Justices by virtue of their office. These are called 'ex officio' Justices and their status as a Justice ceases when they no longer hold that office.
A Justice may at any time resign the office by written advice to the Attorney-General.
The appointment of a person as a Justice of the Peace is made for the benefit of the community and therefore it is expected that a Justice will make himself or herself available for the exercise of the functions attaching to the office at all times within reason.
It is also a criterion governing the appointment of Justices that persons so appointed are accessible to the public.
That is not to say that Justices cannot decline to exercise their powers upon a request being made. There may be occasions where it is personally inconvenient or inappropriate, as for example where a relative or close friend is involved, in the matters being dealt with.
Justices may wish to participate in a Justices' Association. The Associations are:
Contact numbers and current office holders are listed in the appendices.
If you need assistance regarding the performance of your functions as a Justice of the Peace, contact the following:
Administrator of Courts, 23-25Liverpool Street, Hobart 7000, Phone (03) 6233 2020
Clerk of Petty Sessions, 23-25 Liverpool Street, Hobart 7000, Phone (03) 6233 6762
Clerk of Petty Sessions, 73 Charles Street, Launceston 7250, Phone (03) 6336 2605
Clerk of Petty Sessions, 38 Alexander Street, Burnie 7320, Phone (03) 6434 6390
1.1 The Legal System and the Justice of the Peace
1.1.1 The Law of Tasmania
The law consists of "statute law" made by the Parliament, and the "common law". A Justice will mainly perform ministerial (or non-judicial) functions which will involve laws made by Parliament.
The Justice in court deals mainly with offences. Offences may be created by Acts, by regulations or by by-law.
Acts are made directly by the Parliament and form part of the statute law.
Subordinate legislation such as the Justices Rules is made under the principal Act (in this case by the Justices Act by the Executive Council, (or Governor-in-Council). If you look at a set of regulations you will find they are mostly made by the Governor "acting with the advice of the Executive Council".
By-laws are another type of subordinate legislation. They are usually made by some body other than the Executive Council, such as a local council.
1.1.2 Judicial Functions
Justices of the Peace are currently utilised for all parking meter courts together with the majority of traffic regulation matters, excluding pleas of not guilty.
Single Justices convene out of hours remand courts throughout the State. Single Justices are also used to deal with appropriate uncontested committals.
Altogether about thirty Justices are involved in the work throughout the State. Weekday sittings are scheduled each week in Hobart and at varying intervals in other parts of the State depending on the level of activity in the jurisdiction exercised.
The laws directly governing the Justice's work are the Justices Act 1959, and the subordinate legislation made under it by the Governor-in-Council which are called rules - the Justices Rules 1976. It is not expected that the Justice should know the Act and the rules in close detail, but it is important to have a working familiarity with them.
1.1.3 History of the Office
Historically, Justices of the Peace have had an important function in the legal system. The "Justices of the Peace Act" of 1361 dealt with matters still relevant today such as binding over or sureties to keep the peace. This Act was one of the statutes received into the Australian colonies in 1788 and was incorporated into the law of each jurisdiction by the "Australian Courts Act" 1828.
The first two Magistrates for Tasmania, Lt. John Bowen and Mr Jacob Mountgarret (Surgeon) were appointed on 31 August 1803 by Governor King. Eventually the power to appoint Justices was provided by statute.
There are some 2,056 Justices of the Peace in Tasmania, who have been appointed. In addition there are those who are Justices of the Peace by virtue of their office. (Department of Justice records 1995).
A Justice of the Peace holds office by appointment under the Justices Act 1959. A magistrate is a lawyer who holds office by appointment under the Magistrates Court Act 1987. A magistrate is also a Justice of the peace ex officio - that is, automatically by virtue of magisterial office.
A magistrate has wider powers than a Justice. Section 22 of the Justices Act defines the powers of magistrates and the circumstances in which a court is deemed a Court of Petty Sessions. In some cases only a magistrate sitting alone can preside. In other cases two or more Justices can constitute a court. In more limited instances a Justice may sit alone. The limits of this jurisdiction are set out in Part V of the Justices Act 1959 or the particular Act governing the subject matter of the complaint.
Section 23 sets out the powers of a single Justice.
S.23 "One Justice may -
(a) receive a complaint and issue a summons or warrant thereon;
(b) issue his summons to compel the attendance of witnesses;
(c) do all other necessary acts and matters preliminary to the hearing of a complaint or matter notwithstanding that it must be heard and determined by a magistrate or two or more Justices;
(d) after the determination of a complaint or matter, whether or not he determined it or took part in its determination, issue a warrant of execution or commitment thereon; and
(e) examine into a complaint of an indictable offence and commit the defendant for trial, or if he pleads guilty, commit him for sentence."
(For a detailed description of these powers see the Justices Act 1959 (Annotated)).
There are certain record keeping functions which need to be complied with and are referred to in Part 4.
Although most court work takes place in a court venue during office hours, there is no restriction on time, place and venue for court work. A Justice may be called upon after hours to perform work normally undertaken in court.
Section 23A provides:-
S.23A "Subject to any other provisions of this Act -
(a) all courts of summary jurisdiction;
(b) all Justices examining into charges of indictable offences; and
(c) all Justices dealing with bail or recognisances,
may sit and act at any time, including Sunday, and at any place."
(See Justices Act 1959 (Annotated)).
1.3 Glossary and Explanatory Notes
A word or a phrase may have more than one meaning in law. First there is the ordinary or dictionary meaning. Secondly, there are special meanings allocated for the purposes of a particular Act. To assist in statutory interpretation these words or phrases are sometimes defined in an "interpretation" section usually towards the beginning of the Act. The statute is interpreted in accordance with this definition.
Some common terms are described below:
"accused"; a person charged with committing a crime is referred to as the "accused", this applies only in criminal prosecutions. In petty sessions matters the person charged with an offence is called the defendant.
"adjourn"; means to suspend the hearing of a case to another day or to a later time on the same day. The adjournment may happen before the hearing commences or during the proceedings. A case adjourned "sine die" is adjourned indefinitely without a day being set. (See "sine die"). If a case is adjourned "on notice" the Justice must check the court record to establish whether the defendant has received this notice.
"affidavit"; an "affidavit" is a written statement sworn by the maker - the "deponent" - before a person who has authority to administer an oath (S.130 Evidence Act 1910). This includes Justices of the Peace. (See 2.1).
"affirmation"; a person is allowed to give evidence without taking an oath but by affirming the truth of the statement made. A person is entitled to make a solemn affirmation instead of taking an oath (S.126 Evidence Act 1910). A person may affirm on the ground that taking an oath is contrary to that person's religious belief, or that person has no religious belief.
The right to affirm is a matter of choice. No one can be forced to take an oath and a person who chooses to affirm cannot be questioned as to the reasons. An affirmation is a solemn declaration having the same value as an oath and to which the same penalties attach. (See 2.1 and S.126 of the Evidence Act 1910.
"apprehend"; is an old term meaning arrest. To arrest a person is to deprive that person of his or her liberty by some lawful authority, usually a warrant of apprehension.
"arraign"; means to call a prisoner before the court to answer the charge and to ask that person whether he or she pleads guilty or not guilty.
"bail"; an accused person is admitted to bail when he or she is released from custody upon giving security or accepting certain specified conditions. When a person is not released by Police on an undertaking secured by a deposit to appear before Justices, that person must be brought before a Justice as soon as practicable. (S.34, 34A Justices Act 1959. See 3.4).
"breach of duty"; a breach of duty is usually an omission - e.g. failing to vote at an election, which constitutes an unlawful act.
"common law"; the common law is distinct from statute law which is the law laid down by Acts of Parliament. The common law was the system of law which evolved in the King's courts at Westminster from the 12th Century onwards. Its sources included the common unwritten customs of the country and the influence of Roman or civil law. The common law was modified and supplemented from the 15th Century onwards by a body of law called equity. Since the fusion of the common law and equity in the 19th Century it is convenient to describe all non-statutory law applied in English and Australian courts as the "common law".
"complaint"; means a written allegation of an indictable or simple offence or of a breach of duty made to a Justice. (s.3 Justices Act 1959). For convenience the complaint and summons are frequently on the same form but are separate procedures. Unless the law expressly provides otherwise, proceedings before Justices are commenced by a complaint. (See 3.2).
"complainant"; one who makes a complaint to a Justice. Usually the complainant is a police officer. Only certain authorised persons can make a complaint alleging a breach of the Criminal Code. Private citizens are not prohibited from making such a complaint but must have the consent of the Director of Public Prosecutions before a complaint can be made for a breach of the Criminal Code. (S.27 Justices Act 1959). The term "complainant" is also used to describe the person whose report to the Police caused them to make a formal complaint before a Justice and ask for the issue of a summons. If, for example, a wife makes a report to the Police that her husband has assaulted her and a summons is issued, the complainant will be the police officer who signs the complaint, but the wife may also be referred to also as the complainant.
"crime"; has the same meaning as "indictable offence". (See S.46 of the Acts Interpretation Act 1931, "Indictable Offences", and 3.3).
"defendant"; means a person summoned to answer a complaint. It is defined in S.3 of the Justices Act 1959 as a person complained against before Justices for an indictable offence, simple offence, or breach of duty; and in S. 77-87 includes any person against whom a warrant of execution is or may be issued.
"deponent"; a person who makes an affidavit or deposition.
"deposition"; a written statement on oath of a witness used as evidence in judicial proceedings. (Part VII Justices Act 1959, Division 4 - Depositions; Part V Evidence Act 1910).
"extradition"; is the process of one jurisdiction surrendering a person up to another jurisdiction.
"functus officio"; [having discharged his duty]. This means that a person having a particular authority no longer has the authority once he or she has discharged that duty. For example, if two Justices decide a case which later goes on appeal to the Supreme Court, the Justices can be said at that stage to be functus officio so far as that case is concerned. Once a Justice has or Justices have convicted a person charged with an offence they are functus officio and cannot rescind and retry the case.
"indictable offence"; means an offence which may be prosecuted on indictment in the Supreme Court. (See "Crime", S.38 Acts Interpretation Act and 3.3).
"judicial notice"; means that the judiciary can take notice, without formal proof, of matters that are common knowledge. This avoids the necessity of calling witnesses to give evidence to prove these matters.
"jurat"; a memorandum at the end of an affidavit stating where and when the affidavit was sworn followed by the signature and description of the person before whom it was sworn.
"jurisdiction"; means the extent or limit of the authority conferred by law. This can refer to territorial limits, or to the extent that a Justice within that territory may exercise particular powers. For example, an extra-territorial Justice's powers, duties and functions are limited compared to a Justice who resides in the State (see Part III Justices Act 1959, S.12, Part II S.4A). Also, a Magistrate has jurisdiction to constitute a Court, whereas in the case of a Justice this may either be prohibited or require two or more Justices (see S.20).
"plaintiff"; a plaintiff is a person who institutes a civil proceeding. In some civil matters including applications for a restraint order under the Justices Act the person making the application is called an "applicant", and the person to be restrained a "respondent".
"prosecutor"; means the person who speaks for the complainant at a hearing. It may be a police officer, a government officer prosecuting on behalf of a department or a statutory authority, or in some cases a private citizen. The fact that most charges are laid by the police does not mean that the ordinary citizen has no power to lay complaints. If, for example, the police decline to prosecute when a wife makes a report of assault by her husband the wife is at liberty to lodge a complaint herself (i.e., a complaint in the court as distinct from the complaint to the police).
"recognisance"; an obligation or bond entered into the court records requiring the person bound by it (the cognisor) to fulfil some condition such as to appear in court, to keep the peace or to be of good behaviour. It is sometimes called "binding over" or being "bound over" and is similar to money or sureties to secure a persons undertaking to appear when admitted to bail.
"remand"; is the process of dealing with an accused person between the time a case begins and its final disposition. If a hearing is adjourned or if an accused person is committed for trial he must be remanded. This may be in custody or on bail.
"rehearing"; means to hear a case a second time from the beginning as though the first hearing had never taken place. It differs from an appeal which is based on and arises out of the first hearing.
"simple offence"; (See S.3) - means any offence (indictable or not) punishable on summary jurisdiction before Justices, by fine, imprisonment or otherwise.
"sine die"; means an adjournment without a date being fixed. The term is also used occasionally when a prosecutor does not intend to proceed and he asks for the proceedings to be adjourned sine die.
"summary"; the word "summary" precedes and defines a number of terms, for example "summary conviction" means a conviction by Justices for a simple offence. This reflects the division between certain crimes that are triable on indictment only before the Supreme Court; the simple offences (or breach of duty) which are triable only by Magistrates or Justices in a court of summary jurisdiction and those "intermediate" crimes which, on the election of the defendant (See Justices Act, S. 72) can be tried summarily before Justices.
"summons"; is a document calling on the person to whom it is directed to attend court to answer that summons. (See 3.2).
"statutory authority"; is a body established by an Act of Parliament or under the Royal prerogative where some of the persons are appointed by the Governor, a Minister or another State authority usually engaging in a commercial enterprise - e.g., the Marine Board. It does not include a Government Department.
"statutory declaration"; is a written statement made in the form prescribed by Section 132 of the Evidence Act 1910. No oath is involved, but a false declaration is punishable by law. (See 2.2).
"subpoena"; a document requiring the person named in it to be present at a specified time and place for a specified purpose under a penalty (sub poena) if that person does not appear to answer that subpoena. The "subpoena ad testificandum" is used to compel a witness to attend and give evidence (to testify); the "subpoena duces tecum" compels a witness to attend and bring certain documents in his or her possession specified in the subpoena.
"Supreme Court"; the Supreme Court is a single superior court of general jurisdiction. (See Supreme Court Civil Procedure Act 1932, S. 6). The court system in Tasmania consists of the Supreme Court, which has a civil jurisdiction and a criminal jurisdiction, and the lower courts which consist of the Magistrates Court (including the Small Claims Division), the Children's Court, the Coroners Court, the Court of Petty Sessions and the Court of Requests (including the Workers Compensation Division). (A useful reference is "Australian Courts of Law" James Crawford, Oxford University Press 1988).
"surety"; is a person who undertakes to pay money if an undertaking is not observed. It may apply in many circumstances but the best known is bail. (See 3.3).
"trial"; is the hearing of a contested matter. "Hearing" is a wider term. If an offender pleads guilty the proceedings that follow do not amount to a trial but they do constitute a hearing.
"warrant"; simply means authority. A police officer carries a card proving his authority which is usually called a warrant card. If a Justice signs a warrant of arrest it is an authority from the Justice to the police to make the arrest. Similarly a "search warrant" is an authority to search. (See 3.1).
2. The Performance of Ministerial (or Non-Dudicial) Functions
2.1 Taking an Oath or Affirmation
One of the main administrative duties of a Justice is the taking of an oath or affirmation. Many statutes provide for the taking of an oath for some particular purpose. All courts, judges and persons acting judicially are empowered to administer an oath or take an affirmation of a witness within the extent of their lawful authority. (Evidence Act 1910. SS. 130, 131).
The purpose of administering an oath is to emphasise the seriousness of the requirement that evidence given will be the truth. There are criminal sanctions if a person commits perjury. (Criminal Code 1924. SS. 94, 389).
The normal method of administering an oath, for example in the case of an affidavit, is for the Justice to hold the Bible or Testament and having ascertained that the person is the same person described as the deponent will say to that person:
"That is your signature and you swear the contents of this, your affidavit are true - so help you God".
The person responds by saying "I swear" to signify the taking of the oath. (S. 124).
The Justice then completes the jurat and adds his or her signature followed by the words "Justice of the Peace" or the letters J.P. If the signature is not able to identify the Justice then in addition to the signature the Justice should print his or her name clearly or for convenience can use a stamp but must always sign after the jurat. Identity numbers have now been allocated to all Justices and whilst not a statutory requirement, it is desirable that these be endorsed on the document after the signature.
An oath is not to be administered to a child until the court or person acting judicially forms an opinion that the child understands the nature of the oath. If the child does not understand the nature of an oath, but understands the duty to tell the truth and has sufficient intelligence to justify the reception of the evidence then the child may give evidence in any criminal or civil proceedings, or in any inquiry or examination. A distinction is made between a child's testimony given on oath and that not on oath. (S. 128 Evidence Act 1910).
In the case of oaths taken in court the form has sometimes differed because of the different religious beliefs of deponents. Section 123 provides that -
"Every oath shall be binding which is administered in such form and with such ceremonies as the person sworn declares to be binding."
Where an oath has been duly administered and taken the fact that the deponent at that time had no religious belief does not affect the validity of the oath. (S. 127).
A person has a right to make a solemn affirmation instead of taking an oath and that affirmation has the same force and effect as an oath and the same penalties. A false statement which is affirmed amounts to perjury in the same way that a false statement sworn to be true would be perjury. (Section 126 Evidence Act 1910, SS 94, 389 Criminal Code).
Once the Justice is satisfied that the person about to make the affirmation is the person described in the document that Justice says:- "Is that your signature?" and on an affirmative answer the deponent then says or repeats after the Justice "I" then their name "do solemnly, sincerely and truly declare and affirm that the contents of this my affirmation are true."
Every affirmation in writing begins "I" (then the person's name and address) "do solemnly and sincerely affirm" and the form in lieu of jurat is:
"Affirmed at (place), the day of 20....... ,
before me:.....(See S. 126 Evidence Act).
The Justice shall complete the document substituting the word "affirmed" for the word "sworn" if the person made an affirmation, signing after the affirmation and adding the words "A Justice of the Peace".
Alterations in the Body of a Document
Any alterations, erasures or interlineation in the body of a document should be initialled by the Justice in the margin opposite to where the alteration etc., has been made.
Annexed Documents
Documents annexed to an affidavit, statutory declaration etc., should be identified with the main document by subscribing thereon an identification clause which is usually in this form:-
This is the (document) marked ("A") referred to in the affidavit or declaration (as the case may be) of ........................................ sworn/affirmed or declared (as the case may be) at ........................ in Tasmania this...............day of ......................20...., before me
...............................................................................J.P.
Person unable to Read or Write
In this case the document is first read over to the person concerned, and the person is asked whether the contents are understood. If the person says 'Yes' his or her mark is affixed with a pen, in the proper place, as follows:-
JOHN HIS "X" MARK JONES
The J.P. should add, before signing, the following words:- 'The same having been first read over to the said "J.J." who appeared thoroughly to understand the same, and affixed his mark thereto in the presence of......................... Justice of the Peace'.
Blind Persons
The Justice should add, before signing, the following words:- "The same having been first read over to the said 'J.J.', he being blind, who signed in the presence of ................................." OR, "affixed his mark thereto, (as the case may be) in the presence of ................................ Justice of the Peace".
General
Except in the case of persons unable to read, including the blind, a Justice is not required, nor indeed, entitled to read through a document in detail. However, common prudence demands that the Justice obtains sufficient knowledge of a document to understand its general nature so that he or she will be aware of the type of document being attested. Furthermore, a prudent Justice would ask a person about to swear an affidavit or make a declaration whether he or she has read through it and understands its contents. A document should also be examined for the purpose of seeing whether or not there are any erasures, alterations or interlineations requiring initialling.
2.2 Taking of Statutory Declarations
The form for a statutory declaration is prescribed in Section 132 of the Evidence Act 1910. A Justice, Commissioner for Declarations or any other person authorised by law to administer an oath may take and receive a declaration made voluntarily by any person. Statutory declarations are used for a variety of purposes, for example when applying for a pensioner rebate, or in insurance matters to give some veracity to the written statement without the necessity of taking an oath. The prescribed form is:-
"I, A.B. (insert place of abode and occupation), do solemnly and sincerely declare that (here state the facts); and I make this solemn declaration by virtue of section 132 of the Evidence Act 1910.
Declared at this day of 20..... , before me, C.D., Justice of the Peace (or as the case may be)".
In the case both of an affidavit and a declaration it is immaterial whether the document has been signed prior to a deponent or declarant appearing before the Justice, providing that before taking an oath or declaration the Justice is satisfied that the person appearing before him is the person described in the document.
In no circumstances should a Justice or Commissioner witness a signature to a document unless the person making the declaration appears before him or her. The document can be signed beforehand but the person whose signature it is must be there to make the declaration.
As declarations are essentially personal, any sealed with the seal of a company or other corporation, or signed in the business or firm's name are not acceptable. Furthermore, no person can sign for or on behalf of any other person or corporation.
In the case of a declaration the Justice should say to the person, 'That is your name and handwriting and you solemnly and sincerely declare the contents of this declaration are true'. On the answer being in the affirmative, the Justice or Commissioner for Declarations then completes the declaration form, adding the date and place made, then his or her own signature followed by the words "Justice of the Peace" or "Commissioner for Declarations", or the abbreviations "J.P." or "C.D.". If the Commissioner is a "Commissioner for Declarations" by virtue of holding an office or position prescribed by Section 131B the title of that office or position should also be stated.
Errors in the Jurat or Caption to a Declaration
If an error is made by a Justice in completing the jurat, such as by the insertion of a wrong date, it should not be altered. The whole jurat should be struck out and a fresh one written below. The same principle applies in respect of an affirmation and the caption to a declaration.
A Blind Person or Person Unable to Read or Write
If the person making the declaration has a disability which restricts their ability to read the document and understand its contents then the Justice or Commissioner should cause the document to be read to that person and add the following words before signing:-
In the case of a blind person "The same having been first read over to the said" (name of declarant) "he being blind, who signed in the presence of ", or, "affixed his mark thereto (as the case may be) in the presence of ". "Justice of the Peace" or "Commissioner of Declarations" as the case may be.
If the person making the declaration is unable to read or write the Justice must be satisfied that the person understands the contents of the document and must read the document over to the person concerned and ask whether that person understands its contents.
Except in the case where a person is unable to read a Justice is not required or entitled to read through the document in detail. The document needs to be scanned to see whether there are any erasures, alterations or interlineations requiring initialling and a prudent Justice would ask a person about to make a declaration whether he or she has read it through and understands its contents.
In the case of a person unable to read or write after the document is read over and the Justice is satisfied that the person understands the contents then that person puts his or her mark, with a pen, where his or her name appears for example:-
"JOHN (HIS "X" MARK) JONES".
words:-
"The same having been first read over to the said "J.J." who appeared thoroughly to understand the same, and affixed his mark thereto in the presence of ................Justice of the Peace" or "Commissioner for Declarations" as the case may be.
Division 3 of Part V of the Evidence Act 1910 provides for affidavits of service, other affidavits or declarations made or signed out of the jurisdiction.
Justices will frequently be called upon to witness signatures to documents and in some instances provision is made in a statute for a signature to a document to be witnessed by a Justice. This does not involve the administration of an oath or the taking of a declaration. What is required is that the person signing indicate their signature and identify themselves as the person signing.
In many instances the terms of the statute will require that the document be actually signed by the party in the presence of the Justice. Generally the form of the document will indicate this. Where this is not stipulated the Justice should either see the document signed or, where the document has already been signed, get the party to acknowledge the signature. If the Justice is in doubt he or she should insist that the document is signed again.
In no circumstances should a Justice witness a signature to a document unless the party appears before him or her.
The requirement or preference for a Justice to witness signatures on documents is primarily for verification purposes. A Justice who has appended his or her signature to a document may subsequently be called to give evidence that the document was properly executed.
A Justice may be asked to witness a will. Section 10 of the Wills Act 1992 provides as follows:-
"DIVISION 3 - EXECUTION AND ATTESTATION OF WILLS
Requirements as to writing and execution of will
S 10 - "Except as provided by this Act, a will is invalid unless it is in writing and executed in the following manner:-
(a) it is to be signed at the foot or end of the will by the testator or by some other person in the presence of, and by the direction of, the testator;
(b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time;
(c) the witnesses must attest and subscribe the will in the presence of the testator, but no form of attestation is necessary."
There are provisions governing the position of the signature of the testator and obliterations, interlineation or other alterations made to a will requiring the signature of the testator and the subscription of the witnesses in the margin or adjacent to the alteration. Justices should familiarise themselves with these provisions.
POSITION OF SIGNATURE TO A WILL
S 11 - (1) "A will is taken, so far only as regards the position of the signature of the testator or of the person signing for the testator as mentioned in section 10, to be executed in accordance with that section if the signature is placed at, after, following, under, beside or opposite to the end of the will and it is apparent on the face of the will that the testator intended to give effect by that signature to the writing signed as the will.
(2) Without limiting the generality of subsection (1), a will is not affected by the circumstance
(a) that the signature does not follow, or is not immediately after, the foot or end of the will; or
(b) that a blank space intervenes between the concluding word of the will and the signature; or
(c) that the signature is placed among the words of the testimonium clause, or of the clause of attestation or follows, or is after or under, the clause of attestation either with or without blank space intervening, or follows or is after, under or beside the names, or one of the names, of the subscribing witnesses; or
(d) that the signature is on a side or page or other portion of the paper or papers containing the will on which no clause or paragraph or disposing part of the will is written above the signature; or
(e) that there appears to be sufficient space on, or at the bottom of, the preceding side or page, or other portion of the same paper on which the will is written, to contain the signature.
(3) Notwithstanding subsections (1) and (2), the signature of the testator -
(a) does not give effect to any disposition or direction that is underneath or that follows it; and
(b) does not give effect to any disposition or direction inserted after the signature was made
unless the will is executed in accordance with section 16."
DIVISION 4 - ALTERATIONS IN WILLS
Effect of alterations in a will
16 - (1) "An obliteration, interlineation or other alteration made in any will after the execution of the will is not valid, except so far as the words or effect of the will before the alteration are not apparent, unless the alteration is executed in accordance with Division 3.
(2) A will, with an alteration as part of the will, is taken to be duly executed if the signature of the testator and the subscription of the witnesses are made in the margin or on some other part of the will opposite or near to the alteration or at the foot or end of, or opposite to, a memorandum referring to the alteration and written at the end or on some other part of the will."
3. The Performance of Judicial or Quasi-Judicial Functions
3.1.1 Warrants which may be issued by Justices
Justices may have occasion to deal with applications by the police for the issue of warrants, including search warrants under the Search Warrants Act 1997. (See Appendixs 2 & 3)
There are other warrants which a Justice will be called upon to issue from time to time but these are usually in connection with proceedings in the Court of Petty Sessions, and will be found in the Justices Act. The powers of a single Justice under Section 23 include the power to issue a warrant upon the receipt of a complaint, and following the determination of a complaint or matter, the power to issue a warrant of execution or commitment. (See Part IV - Warrants Justices Rules 1976, Justices Act 1959 (Annotated) (See Appendix 4).
An application may be made to a Justice to issue a warrant for the apprehension of a person complained against, or if that person is imprisoned on another matter, a warrant to the gaoler to present that person. (Section 32).
A warrant of apprehension may be applied for under Section 106C of the "Justices Act" for the arrest of a person against whom a restraint order is sought. If the Justice considers the matter to be a case of urgency and there is sufficient cause to do so then the Justice may decide a warrant will issue rather than the notice to the respondent to attend when the application is heard.
3.1.2 Matters to be considered in issuing warrants
The issue of a search warrant is a judicial act and must be performed as carefully as any other judicial act. It is the Justice's own conclusion arrived at independently based on the materials presented by the applicant that will determine whether or not a warrant will issue.(1)
It is the Justice who must personally assess whether there is sufficient cause and satisfy himself or herself on established criteria whether there is sufficient information to found that belief in order to justify the issue of the warrant rather than issue a summons. Whereas a summons is addressed to the person complained against and requires that person to attend court at a stated time to answer the complaint, a warrant is addressed to the police and requires them to arrest that person and bring him or her before the court to answer the charge. As this is a greater infringement of a person's liberty, the law requires that a complaint to found a warrant must be on oath. (Justices Rules 1976, Section 12).
As stated in Crowley v. Murphy (1981) 34 ALR 496 @ 515:
"....It is the Justice himself who must be satisfied, not the policeman who gives the information on oath. The Justice must not act as a mere rubber stamp for the police. He must ensure that a finding of reasonable grounds is supported by credible facts and circumstances...."
The powers to enter and search under a warrant are extensive and the invasion of privacy only justifiable on there being reasonable factual grounds for suspecting that the search would facilitate a criminal investigation. As a pre-condition the warrant can only be issued by a judicial officer after that person is satisfied that reasonable grounds for suspicion exist that would justify the issue of the warrant.
A failure to meet the required criteria may result in a court deciding that the warrant was improperly issued, that the evidence obtained is inadmissible and the warrant invalid. The end result may be that the person charged is acquitted, whereas had the warrant been properly issued that person may have been convicted.
The Justice must assess the information to determine whether it is sufficient to provide a reasonable ground for suspicion. Any suspicion or supposition has to be supported by some foundation in fact and not merely asserted by the informant. The Justice cannot rely solely on the suspicion of the informant, but must make a determination as to whether or not the information is sufficient to provide reasonable grounds for suspicion.
In summarising the principles involved in the issue of a search warrant Slicer J said:-
A prudent Justice should make a note of the information provided in support of the application for a warrant for the same reasons that judicial officers or administrative decision-makers are frequently required by law to give reasons for their decisions. Noting the information should also assist the Justice in testing whether that information is sufficient and assist Justices in the proper performance of their duty in this regard.
Where a warrant is issued on a complaint the Justice who issues it shall make a memorandum of it on the complaint and immediately send this to the clerk (Rule 14).
Both the apprehension of a person and search involves a substantial infringement of an individual's liberty and privacy which can only be justified by the countervailing needs of the criminal Justice system to investigate or apprehend when there is sufficient reason to do so.(2)
(1) The importance of this independent scrutiny has been stressed both by the High Court in "George v. Rockett" (1990) 170 CLR 104 at 110 and by the Full Federal Court in "Karina Fisheries Pty. Ltd. v. Mitson" (1990) 26 FCR 473. In "George" the High Court emphasised the importance of strict compliance with statutory conditions governing the issue of search warrants. In "Karina" the Full Federal Court emphasised the extent of the duty under the Proceeds of Crime Act 1987 (Cth), S.71(7), to include certain relevant information in the warrant itself.
(2) The courts have a responsibility to ensure that there is compliance with these safeguarding pre-conditions. As Brennan J. observed in "Halliday v. Nevill" (1984) 155 CLR 1 at 20:
"There is ...... a tension between the common law privileges that secure the privacy of individuals in their own homes, gardens and yards and the efficient exercise of statutory powers in aid of law enforcement".
A useful summation of the history of common law warrants of apprehension which also require the holding of a belief and suspicion is contained in the judgment of Latham C.J. in "McArthur v. Williams" (1936) 55 CLR 324 at 334-5. See also "Search Warrants in Legal History" at p.445 contained in the judgment of Kirby P. "Carroll v. Jijovich" (1991) 25 NSWLR at 441.
3.2 Making of Complaints and Issuing the Summonses
Introduction
As provided in Section 27 of the "Justices Act" proceedings before Justices are normally commenced by a complaint which may be made (or laid) by the complainant in person, by the complainant's legal representative or by an authorised person. There are exceptions and qualifications to this general rule and Justices should be familiar with Part VI of the "Justices Act" which sets out the procedure. (See also Justices Act 1959 (Annotated)).
The making of a complaint is the foundation of all criminal proceedings. The complainant is alleging that an offence has been committed, and deciding whether a summons or warrant should issue involves a judicial decision by the Justice.
3.2.1 Receiving A Complaint
A complaint must be signed by the complainant in the presence of the Justice. If thought necessary the complaint should be read over or explained to the complainant by the Justice.
In the case of a complaint not made on oath the Justice should say to complainant, 'You declare that the contents of this your complaint are true to the best of your knowledge and belief'. On the complainant saying 'I do' the Justice completes and signs the caption.
If the complaint is on oath the Justice, holding the Bible in his or her right hand, says 'You swear that the contents of this your complaint are true to the best of your knowledge and belief, so help you God'. On the complainant saying 'I swear' the Justice completes and signs the caption. (Rule 12).
In the case of a simple offence (Section 26)* a complaint must be made within six months from the time when the matter of complaint arose, unless some other time limit is expressly provided.
In circumstances where a person has been arrested without a warrant Section 27(2) permits oral information of the substance of the charge in lieu of a written complaint but only up to the stage of the proceedings where the person charged is required to plead.
The procedures for issuing a complaint, its form and the particulars it should contain are set out in the Justices Act and Rules (Justices Act Part VI, Justices Rules 1976, Part II)*.
The complaint must accurately state the facts necessary to support the elements of the offence with which the defendant is charged but "without necessarily stating all the essential elements of the matter of complaint" (Section 30). The complaint must however disclose an offence or matter of complaint otherwise it will be defective and unless amended to rectify this flaw, the Justices are required to dismiss the complaint. (Section 31). The particulars in the complaint must be stated as precisely as practicable and in ordinary language (Rules 6 - 11).*
A complaint of a breach of the Criminal Code, unless made by those prescribed in Section 29(3), requires the consent of the Director of Public Prosecutions.*
Only one matter is allowed in each complaint except as provided in Section 29. Primarily this covers situations where the matter of the complaint arises out of the same act of the defendant or are founded on the same facts. These need not be contemporaneous but can form part of a series of offences or matters of complaint of the same type. For example a single act may establish two offences such as assaulting a policeman and resisting arrest. Several defendants may be joined in the same complaint and the charges against them may be heard together or separately but at any time during the hearing Justices may, on the application of any of the defendants, direct that the hearing of the complaint be separate (Section 28).*
3.2.2 Procedures - Summonses to defendants
The Justice need not issue a summons just because someone asks for it. If necessary the complainant can be required to justify the application. In the case of many summary offences prosecuted frequently by the police or public authorities it is usually considered sufficient to know that the police or appropriate authorities have satisfied themselves that there is evidence which justifies their bringing the charge.
Section 29 sets out the procedure to be adopted by Justices if the defendant challenges the complaint on the basis that it does not comply with subsection (1) which provides (with exceptions) that each complaint should be for one matter only and not for two or more matters.*
When a complaint is made to a Justice the Justice may issue a summons to the person complained against or in the circumstances defined may issue a warrant for the apprehension of that person (Section 32). The issue of a summons does not prevent a warrant of apprehension subsequently issuing. (See Section 33).*
The complaints and summonses forms appear in Schedule I of the Justices Rules and Rule 3 provides that the forms set out in that Schedule can be varied as circumstances require. (See Appendixs 5, 6 & 7).
3.2.3 Summonses to Witnesses
A Justice may summon witnesses to attend and give evidence. If the Justice is satisfied by evidence given on oath that the witness will not attend court in response to the summons unless compelled then instead of issuing a summons the Justice may issue a warrant. If the witness summonsed fails to appear and there is evidence that the summons was either served or had come to that person's knowledge and no sufficient excuse is offered for the non-appearance, then the Justices before whom that person was summonsed or one or them, may issue a warrant to compel that person to appear and testify. (Section 41, 44 and Form 7).*
*(For details see Justices Act 1959 (Annotated)).
Whilst there is no statutory requirement for a specified number of days notice prior to the hearing in relation to a summons to witness, the Justice should take into account the reasonableness of the request for the issue of the summons. For example a request for a summons to issue for an appearance the following day might be considered unreasonable unless the witness knew in advance and required formal notification for employment requirements.
In these circumstances a prudent Justice would inquire of the applicant as to whether the witness was aware of the proceedings before exercising his/her discretion to issue the summons.
The term "indictment" describes the procedure where a person charged with a crime has been committed for trial. The charge is written in a document called an indictment and is signed by a Crown Law officer and filed in the Supreme Court. Chapter XXXVIII of the Criminal Code Act 1924 which begins at S.310 describes the indictment procedure and the requirements necessary in an indictment.
The Justice of the Peace is not involved in criminal trials in the Supreme Court but every charge - indictable or otherwise - begins with a complaint in the lower court.
Section 38 of the Acts Interpretation Act 1931 provides that where an Act provides that a matter or proceeding is to be dealt with summarily then the proceedings shall be taken in accordance with the Justices Act 1959. Subsection (2) provides that a crime shall be dealt with by indictment in accordance with the provisions of the Criminal Code. Other Acts may also provide that a particular offence is punishable upon indictment.
There are some crimes less serious than those that must proceed on an indictment in the Supreme Court, that can be dealt with summarily on the election of the defendant. (See Part VIII Justices Act, commencing at S.71).*
A defendant charged with an indictable offence to which a not guilty plea has been entered and for which there is no election, or where the election for summary trial has not been chosen, is required to elect one of the three courses of action set out in S.56A(6) (a)(b) and (c) of the Justices Act. Briefly these are
(a) to contest committal;
(b) to not contest committal but to require the taking of depositions; or
(c) to not contest committal and not require the taking of depositions.
In the case of an election under (b) the taking of the depositions is usually undertaken before a single Justice and is referred to as an uncontested committal.
3.3.1 Committals
Section 23(e) provides that a single Justice has the power to "examine into a complaint of an indictable offence and commit the defendant for trial, or if he pleads guilty, commit him for sentence".
The "examination" of a person charged with an indictable offence includes the taking of depositions. When the Justices who have heard the evidence relied on by the prosecution form an opinion that this evidence is not sufficient to put the defendant upon trial for any indictable offence they shall order the defendant's discharge (if in custody) in relation to that particular complaint (S61)*.
If the evidence is sufficient to put the defendant on trial then S62 provides that the Justice shall order the defendant to be committed for trial in the Supreme Court on a day during the next criminal sittings and either remand the defendant in custody or admit the defendant to bail.
After the defendant has been committed to trial for an indictable offence a Crown Law Officer may still decide upon the evidence not to file an indictment for that offence and can issue a warrant for the release of that person from custody (S70).
3.3.2 Depositions
The "taking of a deposition of a witness" is defined in Section 56A(6A) and the mode of taking evidence set out in S57. This allows a witness' statutory declaration to be received in evidence as his or her signed deposition unless Justices consider or the defendant requests that the witness attend personally for examination or cross-examination.
Where the witness attends invariably the taking of their deposition is achieved by the tape recording of their evidence which is subsequently transcribed and sent to the Supreme Court without any further involvement of the presiding Justice.
3.3.3 Uncontested Committals
For practical purposes an uncontested committal is no different to any other hearing except that as the order for committal has already been made there is no 'finding' required of the Justice. Witnesses are called, examined and cross examined and their depositions (evidence) subsequently sent to the Supreme Court.
Rule 51 sets out the procedure for transmitting the depositions and procedural documents by the Clerk to the Crown.
*(See Justices Act 1959 (Annotated)).
Remand is the process of dealing with the custody of a defendant when the case against him or her is adjourned, or the defendent is committed for trial.
Remand is necessary only when the defendant is in custody. In the ordinary case of a defendant being served with a summons to answer a charge which does not involve arrest, such as a parking charge, he or she comes to the court in answer to the summons and is not in custody. If the case is adjourned no remand action is necessary.
If a person is arrested and not released by a police officer (S34* "Justices Act") that person must be taken before a Justice "as soon as practicable".
The "Criminal Code" S303(1) provides: "It is the duty of any person who has arrested another on a charge of any offence to take him, or cause him to be taken, before Justice without delay, to be dealt with according to law".
The view has been expressed that there is no distinction to be drawn between the two expressions in the Justices Act and the Criminal Code, (Williams v The Queen (1986) 66 ALR 385 at 401) nor are the making of enquiries a ground for extending the period in custody and denying the person detained the opportunity of securing his release by order of a Justice.
Where a person is taken before a Justice the Justice must be satisfied that there is alleged against that person an offence or breach of duty. If there is none the person must be released. If there is the Justice proceeds to deal with the question of bail. S.5 56A (Indictable Offences) and 74A (Summary Offences) set out the procedure to be followed. The authority to grant bail is contained in the Justices Act 1959 (S. 35), whilst the method of granting bail is contained in the Bail Act 1994.
There is a presumption in our law that a person is presumed innocent until proven guilty. On this basis the person has an entitlement to have the question of bail considered. In a bail application the accused person is applying to be released from custody pending the hearing of the charge.
Upon being appointed or on becoming an "ex officio" Justice, a Justice must be reasonably available to consider a bail application which may be outside normal office hours. The venue need not be a court. A list of Justices resident in the various metropolitan and country areas is provided to the police to facilitate taking an arrested person before a Justice without delay. In addition the Chief Magistrate will from time to time seek advice from Justices on whether they are available for bench duties and advise the police accordingly.
The "Justice's Act" S23A* provides that the time and place of all Justices examining into charges of indictable offences, dealing with bail or recognisances is unrestricted. In exercising these powers the Justices may sit and act at any time, including Sunday, and at any place. The question of a preferred venue for security and record keeping purposes (S50A)*has already been referred to.
While a Justice would be expected to make every reasonable endeavour to be available, and this may involve some personal inconvenience, it is within the Justice's discretion when contacted to ask whether some other Justice might be more readily available. It is also appropriate for the Justice in considering venue to take into account security and the requirement to keep a record of the proceedings.
*(See Justices Act 1959 (Annotated)).
3.4.1 Bail Guidelines
The granting of bail is entirely in the discretion of the Justices. These guidelines are in no way to be considered as overriding that discretion. Each case must be considered on its own merits, and what may be considered an overriding factor in one case may well count for nothing in another.
Justices do not have the power to determine bail where a person over the age of 17 has been charged with murder or treason. The power to admit that person to bail can only be by order of the Supreme Court or by a judge (S.67* "Justices Act").
A person charged has an entitlement to bail based on the presumption of innocence, and there must be good reasons for refusing a person bail. In addition any terms and conditions of bail should be appropriate and not excessive or unwarranted. The rationale for this is that bail is to secure attendance at court, not to punish. What may be considered "excessive" may vary according to the circumstances of each case.
For example, in the case of money deposited to secure a person's attendance, the amount should be no more than is sufficient to ensure that the defendant will appear. An excessive amount would be a sum that exceeds the bounds of a proper exercise of judicial discretion as it goes beyond a sum reasonably necessary to secure a person's attendance.
Nor should bail be refused as a punishment. If the defendant has not pleaded, or has pleaded not guilty, it may well be that the court which finally disposes of the matter may find the charge not proved. Even if the defendant has pleaded guilty the court on sentence may well impose a penalty other than imprisonment.
The main stages in the criminal process when bail decisions are made are:
Different considerations may apply at different stages. For example at the conclusion of a committal the Justice has heard evidence that might indicate the strength or weakness of the prosecution case and the possible defences available and is in a position to better assess the nature and seriousness of the offence charged, the severity of the punishment that may be imposed and the probability of conviction. If the defendant has pleaded guilty in matters punishable upon indictment and has been committed to the Supreme Court for sentence, it is more likely that the applicant should not be admitted to bail pending the finalisation of the matter, particularly if the applicant had previous sentences of imprisonment for similar offences.
In all cases where bail is requested the Justices should ask the prosecutor whether bail is opposed. If there is opposition then the prosecutor should state the grounds of opposition. The defendant should be given the right to state any facts to be taken into account in support of the application. Although bail is usually granted where there is no opposition, it is still within the discretion of the Justices to refuse bail if they think fit.
Although these guidelines primarily relate to bail in the first instance before the matter has been heard, there are two other times when bail may be considered - after committal proceedings and before sentencing. Where a defendant is committed to the Criminal Court for trial the order made by the court says that he is to appear at the sittings of the Criminal Court commencing on a certain date, being the first day of the next sittings of the Criminal Court. Where a defendant is committed for sentence to the Criminal Court the order made by the court is to commit him to the first day of the next sittings or, if the Criminal Court is currently sitting, the first Monday following an interval of ten days from the date of the committal provided that the Monday falls within the sittings.
3.4.2 Principles to be applied
The common law principles governing bail are:
The personal, home and employment circumstances are relevant to bail decisions as they are indicators of whether the person is likely to answer bail. A person without a job, ties or a fixed abode may have more incentive to abscond and not answer bail.
A person charged with a more serious offence may have more incentive to abscond than a person charged with a trivial offence, and hence it is less likely that bail should be granted for serious offences. Similarly a person likely to be penalised by a substantial sentence or imprisonment may have more incentive to abscond than a person facing a lesser penalty. The probability of conviction based on the strength of available evidence is a relevant consideration particularly when related to the seriousness of the offence and the likelihood of a substantial sentence as incentives for not appearing to stand trial.
A relevant criminal record also is an important consideration as this may indicate that a period of imprisonment could be anticipated, that the applicant may commit further offences while on bail, interfere with Crown witnesses fail to answer bail or has a history of breaching conditions imposed on bail. But this record is not necessarily determinative. It is for the Justice to take factors such as these into consideration and to test their relevance to the current bail application. An applicant may have an extensive criminal record but always in the past answered and complied with bail orders.
In addition to the presumption of innocence there is a basic factor of fairness. A person in custody may be prejudiced in access to defence counsel, preparing his or her defence and applying for legal aid.
3.4.3 Conditions on bail
Where the court decides to grant bail then, in appropriate cases, section 7(4) and (5) of the Bail Act* provide the authority for the imposition of conditions on the applicant. Where conditions are imposed then they should be such that the terms are not impossible to meet. The fixing of impossible terms is tantamount to a refusal of bail. If bail is to be refused it should be so stated and not avoided by the imposition of impossible terms.
*(See Justices Act 1959 (Annotated)).
In the exercise of its discretion a court may decide to admit a defendant to bail but, nevertheless, believe that during the remand period certain conditions should apply. These conditions are never imposed automatically but rather, imposed after considering the circumstances of the particular case and reaching the conclusion that they are reasonably necessary. Prosecutors may seek particular conditions; defendants often consent to them. Examples of such conditions are:
Residential
That the defendant reside at (a specified residence).
Curfew
That the defendant remain at (a specified residence or place) except during (specified hours).
Reporting
That the defendant report (on specified days) between (specified hours) to a police officer on duty at (specified police station).
Driving
That the defendant not drive or attempt to drive a motor vehicle on a public street.
Other
That the defendant not approach or communicate directly or indirectly with (specified person).
That the defendant not be found within a radius of (specified distance) of an airport or passenger sea terminal.
That the defendant deposit with the Clerk of Petty Sessions at (specify city) the sum of $ to be forfeited to the Crown if the defendant fails to appear before Justices as specified in this order.
That the defendant surrender (specified documents, eg passport) to the police or to the court.
That the nominated person (or persons) enter into a recognisance to forfeit a specified sum if the person admitted to bail fails to appear or fails to comply with a condition of bail.
Before appointing a person as a surety, the court should satisfy itself that the proposed surety:
(i) is financially capable of accepting responsibility for the amount to be specified in the recognisance. The prosecutor should be given a reasonable opportunity to make enquiries and submissions as to that matter, and
(ii) the Court should ensure that the person understands his or her responsibilities, duties and rights as well as the consequences if the defendant fails to comply with the bail terms.
See Justices Act 1959, S.36.
If the prosecutor opposes bail the reasons must be stated with precision. The defendant must be given an opportunity to contest those reasons and to say anything else with regard to the matter of bail. Similarly where bail is granted and the prosecutor seeks to have conditions imposed the defendant must be given the opportunity to argue their imposition.
The Justice is to take into account these reasons and the response of the applicant but, as with applications for warrants, it is the Justice who must exercise his or her judicial discretion in determining bail having regard to the facts of the particular case.
For examples of documents for simple and conditional bail, see Appendices 8 & 9.
3.4.4 Duration of Remand in Custody or on Bail
A person may not be remanded in custody for more than 28 clear days* Notwithstanding, the maximum periods authorised, good practice suggests that a Justice who is not a magistrate should remand a defendant in custody to the first sittings of the court that is to be constituted by a magistrate.
3.4.5 Revocation of Bail
Where a person admitted to bail is arrested for contravention of a condition or for being about to contravene a condition of bail a Justice may restore the order for bail, revoke the order for bail and remand the defendant in custody or revoke the original order for bail and make a fresh order.
If the arrested person is subject to Supreme Court bail that person must be remanded in custody to appear in the Supreme Court within 7 days (S.11 Bail Act).
Justices have an ancient jurisdiction in binding people over to keep the peace. The Justices of the Peace Act of 1361 was one of the statutes received into the colonies in 1788 and incorporated into the law of each jurisdiction by the "Australian Courts Act" 1828.
The modern provisions are incorporated in Part XA of the Justices Act (ss106A-M) and enable Justices to make protective orders restraining conduct which is likely to endanger the personal safety or property of the applicant.
The procedure for obtaining a restraint order is that a person (the applicant) makes application by completing the appropriate form. A civilian applicant will need to swear the application before a Justice (Form 48A). A police application may be by way of statutory declaration (Form 48B). While forms are specified in the Justices Rules for this purpose, it does not matter if the application differs slightly. Substantial compliance with the form is satisfactory.
Once the application is completed, it is up to the applicant to notify the respondent of the date the matter is to be dealt with in court. However, in certain circumstances the applicant may seek a warrant of apprehension from a Justice, believing the arrest of the person to be restrained (the respondent) is necessary.
The criteria for the issuing of warrants is set out in 3.1. It is up to the Justice to determine whether it is a case of urgency and whether there is sufficient cause to issue a warrant. (See S.106C Justices Act).
When a respondent appears before a Justice in the hearing of a restraint order application, the Justice should decide whether to -
See S.34A(5) of the Justices Act 1959. The Justice makes an order if the Justice is satisfied that conduct is alleged that would constitute grounds for the making of a restraint order. S.106D of the Justices Act 1959 covers interim restraint orders.
New legislation the Justices Amendment Act (No. 2) 1995 - Restraint Orders commenced on 1 January 1996 and affects the granting of bail in relation to Restraint Orders.
The purpose of these new provisions is to impose duties on police officers and Justices when considering whether or not to bail a person who has been arrested for the purposes of facilitating the making of an application for a restraint order, or who has been arrested in respect of an offence constituted by a breach of a restraint order, an interim restraint order, or a telephone interim restraint order.
The first of these duties is that the police officer or Justice must consider the protection and welfare of the person for whose benefit the restraint order is sought, or was made, to be of paramount importance. The second duty is that the police officer or Justice must take into account any previous violence by the person who has been arrested against the person for whose benefit the restraint order is sought, or was made, or against any other person whether or not the arrested person was convicted of an offence or had a prior restraint order made against him or her in respect of that violence.
Secondly, ss.10 & 11 amend ss 106A & 106B of the Justices Act which enable restraint orders to be obtained in respect of stalking behaviour. All restraint orders are now taken to include an order prohibiting the person against whom it is made from stalking the person for whose benefit the order is made.
This chapter is concerned with the Justice's most common courtroom task - the hearing of summary prosecutions. The clerk will have prepared a list of the day's business in advance.
In all cases there will be a prosecutor in court, perhaps several prosecutors depending on the nature of the business. There will be a defendant present in most cases, for example, where the defendant:-
In some matters the defendant is not required to appear as provision is made for a written plea of guilty to be entered prior to the hearing, but that person is still entitled to appear if they wish.
As a general rule pleas of guilty submitted in writing take up a relatively short time and are likely to be dealt with on the day they are listed. This is possible only because the court knows in advance that they will be short matters.
Where a defendant appears before Justices for the first time on a charge and he has not entered a plea by endorsement on the summons and he is not represented by a solicitor, the procedure is set out in S.74(1).* The Justice should:
The following form of words is suggested (though for a defendant not represented by Counsel the words are prescribed in Rule 35(2)):-
"This is your first appearance on this charge and you are not required to plead to it unless you wish to do so. You are entitled to an adjournment to consider your course of action or to obtain legal advice.
Do you understand?
Do you want to plead to the charge now or do you want an adjournment?".
ADJOURNMENT: If the defendant asks for an adjournment it is suggested that the matter be adjourned to a date 14 days hence without notice to the defendant, at which time he or she would appear before a Magistrate to plead to the charge. Occasionally when a prosecutor does not intend to proceed, he asks for the proceedings to be adjourned sine die.
PLEA OF NOT GUILTY: If the plea is "not guilty" the matter should be adjournedt sine die on notice.
Justices of the Peace will not generally be called upon to hear defended actions and in the case of a "not guilty" plea or where the respondent "shows cause" the matter will be adjourned for hearing before a Magistrate.
PLEA OF GUILTY: The pleas which the defendant may enter are set out in S.74A(5).
If the defendant does not want an adjournment, have the clerk take a plea to the charge. If the plea is "guilty", proceed to hear the matter. The prosecutor will state the facts which constitute the offence. Even though the defendant has pleaded guilty the justice must still be satisfied that the offence has been committed.
If the prosecution evidence is not sufficient to establish the case against the defendant, the proper course is to dismiss the complaint. If the evidence is sufficient the Justice should find that the defendant is guilty and state that the "complaint is proved".
Before proceeding to sentence the defendant should be asked whether there is any matter in relation to the offence to be put forward in mitigation.
Such factors could be taken into consideration in determining an appropriate penalty to be imposed.
"EX PARTE" HEARINGS: If the offence is not one of those where the defendant may plead in writing (Rule 25), then Rule 28 provides that the defendant in the first instance will appear only for plea and not for trial. The Rules dealing with "pleas" and associated matters commence at Rule 25.
If the defendant fails to appear when his or her name is called the prosecutor in the majority of cases will ask for an order that the case be heard ex parte (in the absence of the defendant). The Justices must first be satisfied that the defendant has been served with a summons or notice and must not accede to an application for the matter to be heard in the defendant's absence unless there is evidence of service.
Section 72D(1) provides that -
(1) If a person who is served with a summons to answer a complaint of an offence or breach of duty prescribed for the purposes of section 144 (1) (ca) -
(a) does not file a plea of not guilty and does not appear as summoned; or
(b) files a plea of not guilty but does not, after being given notice by a Justice or clerk of petty sessions of the time and place fixed for the hearing of the complaint, appear at that hearing; or
(c) pleads not guilty in answer to the complaint, either in person or through counsel, but does not appear at the time and place fixed for the hearing of the complaint -
the complaint and summons may be received in evidence as prima facie proof of the matters contained in them.
DISMISSAL OF A COMPLAINT: If the prosecution evidence is not sufficient to establish the case against the defendant the proper course is to dismiss the complaint. If the evidence is sufficient the Justices will find the case proven, the defendant guilty and proceed to sentence.
4.2.1 Introduction
Once a defendant either pleads or is found guilty the Justice must consider what sentence, if any, will be imposed. Summary offences and certain crimes triable summarily will be heard in the Court of Petty Sessions and are primarily dealt with by a Magistrate though, with limited exceptions, any two Justices can deal with matters heard before a single Magistrate.
Justices of the Peace are rostered for some court work in Hobart, Launceston, Burnie and Devonport and on a regular basis deal generally with traffic regulation matters, parking meter offences and on occasion minor Police Offences Act matters. Justices are sometimes called upon in their judicial role in areas such as Queenstown and King Island, as the need arises.
Before Justices consider the sentence it is imperative that the exact nature of the offence charged is understood. The complaint will refer to the specific section or regulation and state what offence is alleged to have been committed. A prudent Justice will check that:
the charge is in accordance with the legislation,
Some of the information which the prosecutor provides may be disputed, and the defendant may wish to dispute or rebut it even though he or she has pleaded guilty to the substantive charge. The appropriate course, if the matter is likely to affect the sentencing decision, is to take sworn evidence, or to adjourn the proceedings if necessary.
The procedure was stated in "Campbell v R" (1911) 6 Cr App. R.131. "If the prisoner challenges any statement (of the prosecution about the offence or the offender) it is the duty of the judge to enquire into it; if necessary he should adjourn the matter, and if it is of sufficient importance he may require legal proof of it. Or he may ignore it, and if he does so he should state that he is not taking it into consideration".
4.2.2 The Penalty Limits
What is the least punishment that the law allows for an offence of this nature?
What is the maximum penalty prescribed in the relevant legislation?
Note that matters dealt with before Justices do not involve imprisonment penalties.
4.2.3 The Fine - Special considerations
What is the offender's means and ability to pay?
Is it necessary to make an order for time to pay or to pay by instalments?
Is there more than one offence? How does this alter the amount of the individual fines, if at all?
4.2.4 Reasons
The rules require that reasons for the sentence must be recorded, but in the case of the matters listed before Justices it is sufficient simply to record the penalty. (S.50A, R58A Justices Act Order VI A Rule 1 Criminal Rules). You should consider whether any explanations are necessary? Has the offender understood the sentence?
4.2.5 Sentencing Options
Having been satisfied of the guilt of the offender the next stage is to consider whether any penalty will be imposed. There are three options. A Justice may -
As stated previously Justices will not be dealing with cases in which sentences of imprisonment are likely. For the same reason it is unlikely that Justices will be using the community service order provisions. Community Service orders once were an alternative to imprisonment, but now can be imposed as a sentencing option regardless of whether the defendant consents. (The law is set out in Ss.11 to 16 of the Probation of Offenders Act 1973).
The laws governing fines are explained later.
The law relating to probation is located in the Probation of Offenders Act 1973 which the Justice should read. Probation is available in respect of any offence no matter what the prescribed penalty may be.
Basically, a probation order is an order to be of good behaviour for a specified period. If the probationer is not of good behaviour during that time, he commits a separate offence - that of breaching his probation order, and he may be charged and dealt with for that offence.
The order may also be used as a means of deferring sentence, on condition of continuing good conduct. See Section 6(2)(a) of the Act, which says that a condition of the order may be that the probationer come up for conviction and sentence, or for sentence only, if called upon at any time during the currency of the order.
The order may also be supported by conditions imposed by the court and by the requirement that the probationer be under the supervision of a probation officer. This requirement is optional, but it is normal practice - the rule rather than the exception. If a probationer is to be under supervision this effectively relieves the court of much of the duty of imposing conditions because conditions will be imposed by the supervising probation officer.
Even if the Statute imposes a minimum penalty this does not prevent the Justice from exercising the power under the Probation of Offenders Act to dismiss without proceeding to conviction ("Suckling v Cook" (1969) Tas SR 152).
Justices may adjourn sentencing decisions as required to seek advice. They may ask for reports, especially from the Corrections Community.
*(See Justices Act 1959 (Annotated)).
4.2.6 Fines
A fine is the most common penalty imposed.
If Justices decide that a fine is appropriate the amount of that fine will of course depend on the circumstances of the case before them. The only strict rule is that they must work within the limits laid down by law, which vary considerably from one type of offence to another.
If the law says that a penalty for a particular offence is $100 then that is the maximum. Any penalty of or below that figure may be imposed. In rare cases the law prescribes a minimum.
Penalties are quite often expressed in terms of penalty units.
At present (1995) a penalty unit is equivalent to $100. This is provided for in the Penalty Units and Other Penalties Act 1987 which is designed to make it simpler to vary the amount of a penalty to allow for inflation.
The Justice's main problem may well be to know what the maximum is for the particular offence, because the penalty clause is sometimes hard to find. There are several types of circumstances:
Penalty: For a first offence, $75; for a subsequent offence, $350".
A general penalty is sometimes laid down to cover the whole of an Act or set of regulations. Regulation 110 of the Traffic (Miscellaneous) Regulations contains this provision.
"A person who is guilty of an offence against these regulations is liable on summary conviction to a fine not exceeding 5 penalty units".
It is quite in order for a Justice to ask the prosecutor what the maximum penalty is. Police officers and others who prosecute regularly are usually closely familiar with their special legislation, and it is a legitimate time-saving question to ask where the provision is.
On the other hand it is not proper to ask advice as to the fixing of the amount. Both prosecutor and defendant are entitled to say that the offence calls for a heavy penalty or a light penalty, as the case may be, and to state their reasons, but the fixing is entirely a matter for the Justices.
4.2.7 Demerit Points
As the most common offence dealt with by police are traffic offences, the imposition of demerit points in conjunction with a fine is a frequent occurrence. As with fines, where the law states the number of demerit points for a particular offence then that is the maximum number of points that can be awarded. Again a lesser number than that prescribed can be awarded in the Justice's discretion.
Normally a clerk is available to keep the court records, but there may be circumstances such as a weekend remand when the Justice will have to make a record of the proceedings.
Records are of three kinds. The first record is the court register. This is a list of each matter before the Justices on the day. It comprises the names of the defendants and details of the charges against them.
The second record is called the RECORD OF PROCEEDINGS and is the prime record. This is endorsed on the back of the complaint or on a separate sheet if there is not enough space on the back of the complaint. (See Appendix 10).
The "Record of Proceedings" is a summary of the proceedings and must include (Rule 63(4)) -
(a) the date of the hearing (original and adjourned);
(b) the names of the presiding Justices and persons appearing;
(c) pleas;
(d) a record of adjournments;
(e) the names of the witnesses examined (but not their evidence); and
(f) a detailed statement of the result, including convictions and orders. This will include any terms and conditions of any bail order made.
The purpose is that the complaint together with the "Record of Proceedings" will summarise all the proceedings so far so that when the matter comes before a Justice he or she will be able to see from the record what has happened so far.
At the completion of the day's business the clerk to the Justices is to sign the register for each matter dealt with.
The third record is the Justice's own notes that the Justice is required to take by virtue of S.50A(1)* of the Justices Act 1959. These notes are part of the official court record. A party to the proceedings or a person who the Clerk of Petty Sessions considers has sufficient interest in the subject matter of the proceedings may apply and obtain a certified copy of the record of proceedings.
Under S.50A(1) Justices are required to record -
(a) the course of the proceedings;
(b) the evidence received in; and
(c) the Justice's decision and orders made in these proceedings.
The notes should also show who was questioning at the particular time and the stage of the questioning (e.g. examination, cross-examination and re-examination).
Instead of writing down question and answer your notes may combine them as a statement. This is much easier than it may seem. Example:
Question: Where did you spend the evening? Answer: I went to a hotel.
This is noted as: I spent that evening at a hotel.
*(See Justices Act 1959 (Annotated)).
In the normal course of events the Record of Proceedings on the back of the complaint will be completed by the Clerk so that the Justice only need be concerned with their own notes.
Where a sentence of imprisonment, a suspended sentence, a "community service order", a treatment order, or a hospital order is imposed or made, or a person is remanded in custody, the "Record of Proceedings" is to be signed by the Justice imposing the sentence or making the order (Rule 63(4)).
