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QUEENSLAND

JUSTICES ACT 1886-1979

AND INDEX

(Compiled to 31 January, 1980)

Prepared by direction of

The Honourable S. S. DOUMANY, B.Sc.Agr., M.A.I.A.S., M.L.A., Minister for Justice and Attorney-General

8SZZS-By Authority: S. R. Hampson, Government Printer, Queensland-1981

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JUSTICES ACT 1886-1979

Justices Act of 1886, 50 Vic. No. 17 As amended by

Justices Act Amendment Act of 1892, 56 Vic. No. 23 Criminal Code Act, 1899, 63 Vic. No. 9

Statute Law Revision Act of 1908, 8 Edw. 7 No. 18 Justices Act Amendment Act of 1909, 9 Edw. 7 No. 11 Criminal Code Amendment Act of 1922, 13 Geo. 5 No.2 Justices Act Amendment Act of 1924, 15 Geo. 5 No. 6 Justices Acts Amendment Act of 1929, 20 Geo. 5 No. 32

Justices Acts and Real Property Fees Act of 1932, 23 Geo. 5 No. 7 Justices Acts Amendment Act of 1932, 23 Geo. 5 No. 8

Justices Acts Amendment Act of 1941, 5 Geo. 6 No.9 Justices Acts Amendment Act of 1942, 6 Geo. 6 No.17 Criminal Code Amendment Act of 1943, 7 Geo. 6 No. 14

Criminal Law Amendment Act of 1945, 9 Geo. 6 No. 11, Part III Criminal Law Amendment Act of 1946, 11 Geo. 6 No. 6

Justices Acts Amendment Act of 1948, 12 Geo. 6 No. 28 Justices Acts Amendment Act of 1949, 13 Geo. 6 No. 30

Criminal Code and Justices Acts Amendment Act of 1956, 5 Eliz. 2 No. 5, Part III

Justices Acts Amendment Act of 1958, 7 Eliz. 2 No. 39 Justices Acts Amendment Act of 1960, 9 Eliz. 2 No. 46 Justices Acts Amendment Act of 1963, No. 10 Justices Acts Amendment Act of 1964, No. 32

Decentralization of Magistrates Courts Act of 1965, No. 43, Pad V

Part V commenced 1 March 1968 (Proc. pubd. Gaz. 13 January 1968, p. 254).

Decimal Currency Act of 1965, No. 61, s. 11, Second Sch.

Justices Acts and Other Acts Amendment Act of 1968, No. 14, Part II Metric Conversion Act 1972, No. 31, Pad II, First Sch.

Part II and First Schedule in relation to this Act commenced 1 June 1973 (Proc. pubd. Gaz. 5 May 1973, p. 93).

Justices Act Amendment Act 1973, No. 22

Commenced 1 July 1973 (Proc. pubd. Gaz. 9 June 1973, p. 1130).

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2 s.l JUSTICES Aar 1886--1979

Criminal Code and the Justices Act and Another Act (Stock Offences) Amendment Act 1973, No. 88

Commenced 1 April 1974 (Proc. pubd. Gaz. 16 February 1974, p. 687).

Justices Act and Another Act Amendment Act 1974, No. 25 Commenced 29 July 1974 (Proc. pubd. Gaz. 20 July 1974, p. 1690).

Limitation of Actions Act 197 4, No. 7 5

Criminal Code and the Justices Act Amendment Act 1975, No. 27 Justices of the Peace Act 1975, No. 51, s. 3

s. 3 commenced 1 January 1976 (Proc. pubd. Gaz. 20 December 1975, p. 1574).

Justices Act and the Criminal Code Amendment Act 1977, No. 13, Part II

Part II commenced 1 July 1977 (Proc. pubd. Gaz. 18 June 1977, p. 1050) ..

Justices Act Amendment Act 1977 (No. 2), No. 33 Evidence Act 1977, No. 47

Justices Act and The Criminal Code Amendment Act 1978, No. 10,.

Part II

Criminal Law Amendment Act 1979, No. 2, Part IV

Part IV commenced 7 April 1979 (Proc. pubd. Gaz. 7 April 1979, p. 1359).

Justices Act Amendment Act 1979, No. 43

An Act to Consolidate and Amend the Laws relating to Justices of the Peace and their Powers and Authorities

[Assented to 13 October 1886) Preamble repealed by Act of 1908, 8 Edw. 7 No. 18, s. 2.

BE IT ENACIED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of Queensland in Parliament assembled, and by the authority

of the same, as follows:- ·

PART I-PRELIMINARY

1. Short title and division of Act. This Act may be cited as;

The Justices Act of 1886. It is divided into Parts, as follows:- PART !-'PRELIMINARY;

PART II-JUSTICES;

PART HI-JURISDICTION;

PART IV-GENERAL PROCEDURE;

PART V-PROCEEDINGS IN CASE OF INDICTABLE OFFENCES;

PART VI-PROCEEDINGS IN CASE OF SIMPLE OFFENCES AND BREACHES OF DUTY;

PART VII-RECIPROCAL ENFORCEMENT OF FINES AGAINST BODIES CORPORATE;

PART IX-APPEALS FROM THE DECISIONS OF JUSTICES;

PART X-PROTECTION OF JUSTICES IN THE EXECUTION OF.THEIR OFFICE;

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JUSTiCES ACT 1886-1979 ss. 2-4 3 PART XI-FEES OF COURT.

As amended by Act of 1932, 23 Geo. 5 No. 8, s. 4; Act of 1974. No. 25, s. 5.

Collective title conferred by Act of 1979, No. 43, s. I (3).

2. (Repealed).

Repealed by Act of 1908, 8 Edw. 7 No. 18, s. 2.

COMMENCEMENT OF ACT

3. Commencement of Act. This Act shall commence and take effect on and from the first day of January, one thousand eight hundred and eighty-seven.

INTERPRETATION

4. Meaning of terms. In this Act, unless the context otherwise indicates or requires, the following terms shall have the meanings respectively assigned to them, that is to say:-

"Breach of duty''-Any act or omission (not being a simple offence or a non-payment of a mere debt) upon complaint whereof a Magistrates Court may make an order on any person for the payment of money or for doing or refraining from doing. any other Act;

"Chairman of a Local Authority"-The mayor for the time being of a City or Town and the chairman for the time being of a Shire within the meaning of The City of Brisbane Acts, 1924 to 1960, 'or The Local Government Acts, 1936 to 1963;

"Charge of an indictable offence"-A charge of an indictable offence as such;

"Clerk of the court"-The person who for the time being is the clerk of every Magistrates Court at a place or places . appointed, or deemed to have been appointed, under this Act for the holding of Magistrates Courts in question: The term includes any assistant clerk of the court, deputy clerk of the court and any person who for the time being occupies or performs tlhe duties of such office;

·~complaint"-Includes the terms "information", "information and complaint", and "charge" when used in any Aot, and, unless a contrary intention appears, means an information, complaint or charge before a Magistrates Court;

"Court"-A Magistrates Court;

"Decision"-Includes a committal for trial or for sentence, an admission to bail, a conviction, order, order of dismissal or striking out or other determination;

"Defendant"-A person complained against before a Magistrates Court or before justices for a simple offence, breach of duty or an indictable offence;

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4 s. 4 JUSTICES ACf 1886-1979

"District Court"-A court appointed under the authority of The District Courts Acts, 1958 to 1963;

"Examination of witnesses in relation to an indictable offence"- An examination of witnesses or the taking of a statement of any person by justices in relation to a charge of an indictable offence;

"Hearing"-Includes an examination of witnesses in relation to an indictable offence;

"Indictable offence"-An offence which may be prosecuted before lt:he Supreme Court, a District Court, or other court having jurisdiction in that behalf, by indictment in the name of the Attorney-General or other authorized officer;

"Indictment"-'--'A written charge for an indictable offence presented to a court having jurisdiction to try the accused person by the Attorney-General or other authorized officer;

"Jurisdiction"-Includes the place in which jurisdiction may be lawfully exercised;

"Justices" or "justice"~Justices of the peace or a justice of the peace having jurisdiction where the act in question is, or is to be, performed: The term includes a Stipendiary Magis- trate and, where necessary, a Magistrates Court constituted under and in accordance with this Act;

"Magistrates Court"-A Magistrates Court constituted under this Act or deemed so to have been;

"Minister"-The Minister for Justice and Attorney-General of Queensland or other Minister of the Crown for the time being charged with the administration of this Act;

"Oath"~Includes a solemn affirmation or declaration when such affirmation or declaration may by law be made instead of taking an oath, and any promise or other undertaking to tell the truth that may be made under the provisions of any Act relating to the giving of evidence in Courts of Justice;

«Order"-Includes any order, adjudication, grant or refusal of any application, and any determination of whatsoever kind made by a Magistrates Court, and any refusal by a Magistrates Court to hear and determine any complaint or to entertain any application made to it: The term does not include any order made by justices committing a defendant for trial for an indictable offence, or dismissing a charge of an indictable offence or granting or refusing to grant bail and, in the lastmentioned case, whether or not the justices are sitting as a Magistrates Court or to hear an examination of witnesses in relation to an indictable offence;

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JUSTICES ACT 1886-1979 ss. 5-11 5.

"Police officer"-Any member of the Police Force;

"Police station"-Includes a police office, watch-house, and lock-up;

"Simple offence''-Any offence (indictable or not) punishable, on summary conviction before a Magistrates Court, by fine, imprisonment, or otherwise;

"Stipendiary Magistrate"-Includes the Chief Stipendiary Magistrate, a Senior Stipendiary Magistrate and an Acting Stipendiary Magistrate;

"Summary conviction" or "conviction"-A conviction by a Magistrates Court for a simple offence.

When by this section a meaning is assigned to any word, any derivative of that word, when used in this Act, shall bear a corresponding meaning.

Subs-tituted by Act of 1964, No. 32, s. 4.

5. General saving of powers of justices. Nothing in this Act shall be construed to diminish or take away from any power or authority conferred on justices of the peace by any other Act, except so far as the provisions of this Act are inconsistent with the existence or exercise of such power or authority.

PART II-JUSTICES

6-10. (Repealed).

Repealed by Act of 1975, No. 51, s. 3 (1).

11. Stipendiary Magistrates. ( 1) The Governor in Council may appoint any justice to be a Stipendiary Magistrate.

(2) The Governor in Council may appoint any justice to be- (a) ~he Chief Stipendiary Magistrate;

(b) Senior Stipendiary Magistrate in relation to the place where he is stationed.

Every appointment of the Chief Stipendiary Magistrate or a Senior Stipendiary Magistrate made prior to the commencement of this Act is validated from and including the date of the appointment and is declared and deemed to be, and to have been at all times, a good and valid appointment.

( 3) The Governor in Council may appoint any justice to be an Acting Stipendiary Magistrate for a term, either of definite or indefinite duration, or for any purpose, or otherwise howsoever, specified in the appointment.

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6 ss. 12-19 JUSTICES ACf 1886-1979

( 4) (a) The fact that a specific place, or specific places, may be indicated in the appointment (whether before or after the commencement of The Justices Acts Amendment Act of 1964) of any person to be the Chief Stipendiary Magistrate or a Senior Stipendiary Magistrate or a Stipendiary Magistrate or Acting Stipendiary Magistrate as the place or p[aces at which he is to be stationed as such shall not prejudice or otherwise derogate from and shall be deemed never to have prejudiced or otherwise derogated from the exercise by him, at any time, of his power and jurisdiction as a Stipendiary Magistrate at any other place in the State.

(b) The fact that a Stipendiary Magistrate sits in any particular court shall be conclusive evidence of his authority so to do.

(5) If at the determination by effiuxion of time of any appointment under this section or the retirement from his appointment under this section of any Stipendiary Magistrate on account of his having attained a certain age there shall be any proceeding-

( a) partly heard; or (b) standing for decision,

the appointment, notwithstanding any other Act to the contrary, shall for the purpose of determining such proceeding and so far as is necessary for that purpose remain in force until a decision shall have been given therein.

As amended by Act of 1941, 5 Geo. 6 No. 9, s. 2; Act of 1964, No. 32, s. 10.

12-17. (Repealed) .

18. Titles and letters prima facie evidence of status. ( 1) The words Chief Stipendiary Magistrate, Senior Stipendiary Magistrate, Stipendiary Magistrate or Acting Stipendiary MagistJ:ate, or the letters C.S.M., S.S.M., S.M., or A.S.M., after the signature to any magisterial act, shall be prima facie evidence that the person whose signature it purports to be is a justice of the peace and is respectively, the Chief Stipendiary Magistrate, a Senior Stipendiary Magistrate, a Stipendiary Magistrate or, as the case may be, Acting Stipendiary Magistrate having jurisdiction in the matter.

(2) (Repealed).

Substituted by Act of 1964, No. 32, s. 12; as ,amended by Act of 1975, No. 51, s. 3 (1).

PART III-JURISDICTION GENERAL PROVISIONS

19. General provision. Whenever by any Act past or future, or by this Act, any person is made liable to a penalty or punishment, or to pay a sum of money, for any offence, act, or omission, and such offence, act, or omission is not by the Act declared to be an indictable offence, and no other provision is made for the trial of such person, the matter may

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JUSTICES ACT 1886-1979 ^{ss. 20-22} ⁷ be heard and determined by a Magistrates Court constituted, subject to this Act, by two or more justices in· a summary manner under the provisions of this Act.

As amended by Act of 1949, 13 Geo. 6 No. 30, s. 3; Act of 1964, No. 32,

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20. Authentication of acts of justices. All summonses, warrants, convictions, and orders (not being by law authorised to be made by word of mouth only) shall be under the hands of the justices issuing or making the same.

21. Presumption. Every act done or purporting to have been. done by or before a justice shall be taken to have been done within his jurisdiction without an allegation to that effect unless and until ·the contrary is shown.

MAGISTRATES COURTS

22. Power to appoint Magistrates Courts Districts, etc. ( 1) · There shall be within the State courts of record to be called Magistrates Courts.

Each such court shall possess civH and criminal jurisdiction and such other jurisdiction as may, prior to the commencement of The Justices Acts Amendment Act of 1964, have been conferred upon Courts of Petty Sessions or upon justices sitting in Petty Sessions, and as may thereafter be conferred upon Magistrates Courts. Each Magistrates Court shall have a seal which shall be kept by the clerk of such court and shall be judicially noticed.

(2) The Governor in Council may from time to time by Proclamation-

( a) Appoint districts for the purposes of Magistrates Courts;

(b) Abolish, subdivide, or alter the boundaries of any district which has been or may at any time hereafter be appointed rfor the purposes of Magistrates Courts, or amalgamate any such districts or parts of such districts; and

(c) Irf considered desirable assign a name to any such district and vary any such name.

(3) The Governor in Council may from time to time by Proclama- tion appoint places for holding Magistrates Courts within such districts

respectively and if necessary more places than one within the same district and cancel the appointment of any place which has been or shall at any time hereafter be appointed as a place for holding Magistrates Courts.

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8 s. 23 JUSTICES ACT 1886-1979

( 4) The Governor in Council may from time to time appoint any person to be clerk of the court at one or more such places and any such clerk who has been or may at any time hereafter be appointed may discharge the duties of his office at every ,place for which he is so appointed.

The person appointed to be such clerk at any place, or deemed so to be, shall be the clerk of every Magistrates Court held at that place.

The Governor in Council may, from time to time, appoint such officers as he deems necessary to assist any such clerk for the effectual execution of this Act.

(5) Where the appointment of any' place as a place for holding Magistrates Courts is or, whether before or after the enactment of this subsection, has been cancelled, the Governor in Council may, by the Proclamation cancelling that appointment or by Proclaimation sub- sequently, direct that the complaints, depositions, and other proceedings before, and the decisions of, the Magistrates Court, and the records and accounts, and any other things kept by or in the custody of the clerk of the court at that place be delivered to the clerk of the court at some other place.

Where such a direction is given, all such complaints, depositions, other proceedings, records, accounts, and other things shall be kept by and be placed in the custody of the lastmentioned clerk and all such decisions may be enforced and all proceedings may be commenced, con- tinued or completed at the lastmentioned place as fully and effectually as if the decisions had been decisions at that place.

Without derogating from the aforegoing provision, all acts, matters and things authorised, permitted or required to be done, executed or taken, or which had been authorised, permitted or required to be done, executed or taken, whether for the purpose of the enforcement or variation of any suoh decision or any other purpose, by or in relation to the Magistrates Court or justices or the clerk of the court at such firstmentioned place are hereby authorised, permitted or required, as the case may be, to be done, executed or taken, as the case may be, by or in relation to the Magistrates Court or justices or the clerk of the court, as the case may be, at such lastmentioned place.

( 6) Two or more Magistrates Courts may be held (and, for the purpose of allaying any doubts, it is hereby declared that two or more Courts of Petty Sessions always could be held) at any time at any place appointed for holding Magistrates Courts or, prior to the commencement of The Justices Acts Amendment Act of 1964, Courts of Petty Sessions, and nothing in this Act, whether as it appeared before or after the enactment of this subsection, shall be construed as requiring the authority of the Governor in Council to the holding of any such court at any time.

Substituted by Act of 1949. 13 Geo. 6 No. 30, s. 4; as amended by Act of 1958, 7 Eliz. 2 No. 39, s. 3; Act of 1964, No. 32, s. 14.

23. (Repealed).

Repealed by Act of 1964, No. 32, s. 15.

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JUSTICES ACT 1886-1979 ss. 24-29 9 POWERS OF ONE JUSTICE

24. Acts by one justice. Compare 11 & 12 Vic. c. 43, s. 29. One justice may receive a complaint, and gmnt a summons or warrant thereon, and may issue his summons or warrant to compel the attendance of witnesses, and do all other necessary acts and matters preliminary to the hearing, notwithstanding that the case must be heard and determined by two or more justices.

As amended by Act of 1964, No. 32, s. 16.

25. After decision one justice may issue wanant of execution or commitment. Compare 11 & 12 Vic. c. 43, s. 29. After a case has been heard and determined, one justice may issue thereon any warrant of execution or of commitment, and the justice who so acts need not be the justice or one of the justices by whom the case was heard and determined.

As amended by Act of 1949, 13 Geo. 6 No. 30, s. 5.

26. Warrants of execution after appeal. After an appeal against a conviction or order has been decided against the appellant, any justice may issue a warrant of execution or commitment for execution of the same as if no appeal had been brought.

HEARING AND QUORUM

27. Hearing of complaint. Subject to the provisions of any other Act, every complaint shall be heard and determined by a Magistrates Court constituted by two or more justices.

If any Act authorises a matter of comp1aint to be heard and determined by-

( a) a Magistrates Court constituted by one justice; or (b) one justice,

that matter of complaint may be heard and determined by a Magistrates Court constituted by one justice.

Substituted by Act of 1964, No. 32, s. 17.

28. Majority to decide. Except as hereinafter provided, when two or more justices are present and acting at the hearing of any matter and do not agree, the decision of the majority shall be the decision of the justices, and if they are equally divided in opinion, the case shall be reheard at a time to be appointed by the justices.

Provided that upon a complaint for an indictable offence a Police Magistrate, if he is one of the justices, and in the absence of a Police Magistrate, any two or more of the justices may commit the defendant for trial notwithstanding that a majority of the justices are of opinion that the defendant should be discharged. In any such case, a memorandum of the dissent of the majority of the justices shall be made upon or attached to the depositions.

29. When two justices required, must be present throughout the case.

Compare 11 & 12 Vic. c. 43, s. 29. Where a complaint must be

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10 ss. 30-32 JUSTICES A:Cf 1886~1979

heard and determined, or a conviction or order must be made, by two or more justices, the justices making the decision . must be present and act together during the whole of the hearing and determination.

STIPENDIARY MAGISTRATES

30. Stipendiary Magistrates. ( 1 ) A Stipendiary Magistrate constituting a Magistrates Court shall have power to do alone whatever might be done by two or more justices constituting a Magistrates Court, and shall have power to do alone any act which by any Act may or shall be done by two or more justices.

(2) Unless otherwise expressly provided, when a Stipendiary Magistrate is present at a place appointed for holding Magistrates Courts and is available to constitufe any such court to be held at that place the court shall be constituted by the Stipendiary Magistrate alone.

Nothing in this subsection shall be construed to abridge or prejudice the ministerial power of justices in taking an examination of witnesses in relation to an indictable offence, or the powers of justices to receive a complaint or to issue, grant or endorse a summons or warrant, to admit to bail or to adjourn a hearing of a complaint of a simple offence or breach of duty.

(3) Section two of The Justices Acts Amendment Act of 1909 is repealed.

31. Duties of clerks of petty sessions to be discharged by police magistrate. In any place appointed for holding Courts of Petty Sessions in which a clerk of petty sessions is not appointed, or from which the clerk of petty sessions is absent, the police magistrate acting in such place may discharge the duties of clerk of petty sessions, and all acts done by such police magistrate in pursuance hereof shall be as valid as if done by such clerk, and all notices required to be given to such clerk, and all other matters and things required to be done with or in reference to such clerk, may be given to or done with or in reference to such police magistrate, and shall have the like force and effect.

Except such as may be delegated by the justices in session to police officer. Provided that the justices in petty sessions . assembled or the Minister may require that any of such duties, acts, matters, and things as they or he shall think convenient shall be done by, with, or in reference to some police officer, and thereupon such acts, matters, and things if so done shall. be as valid as if done by, with, or in reference to a clerk of petty sessions.

Clerk of petty sessions, Court of petty sessions, and justices in petty sessions- Now clerk of the court, Magistrates Court and Magistrates Court respectively; see Justices Acts Amendment Act of 1964, s. 2 (4).

EXTENT OF JURISDICTION

32. Justices may act outside jurisdiction. No act done by a justice shall be invalid merely by reason of the fact that at the time of doing such act he was outside the limits of his jurisdiction, and it shall not be

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JUSTICES ACT 1886-1979 ss. 33-39 11

necessary that any conviction, order, or other proceeding, should appear to be made or done within the geographical limits of the jurisdiction of .the justice making or doing the same.

33. Warrants of comnlitment and remand by justices of limited jurisdiction. A warrant of commitment or of remand shall be valid throughout the State, notwithstanding that the gaol or other place to which the defendant is committed or remanded, or any place into or through which he is taken by virtue of the warrant, is outside the limits :of the jurisdiction of the justice by whom the warrant is granted.

34. Duty of police officers. Compare 11 & 12 Vic. c. 42, s. 5.

All police officers for the jurisdiction for which a justice acts are hereby required to obey the warrants, orders, and directions of such justice which in that behalf are granted, given, or done, and to do and perform their several offices and duties in respect . thereof under the pains and penalties to which a police officer is liable for a neglect of duty.

Any such police officer, or any other person who apprehends a person offending against law, and whom he lawfully may and ought to apprehend by virtue of his office or otherwise, in any such jurisdiction, may lawfully take and convey the person so apprehended to ·and before any justice for such jurisdiction although such justice is out of the limits of such jurisdiction.

Police officers, and all such other persons as aforesaid, are hereby

au~horised and required in all suoh cases so to act in all things as if the justice were within the limits of the jurisdiction for which he so acts.

37. Summons or warrant not avoided by death of justice, etc. A warrant or summons issued by a justice shall not be avoided by reason of such justice dying or ceasing to hold office.

38. Order in lien of mandamus. When a justice refuses to do any

<tct relating to the duties of his office as such justice the party requiring such act to be done may apply to the Supreme Court, or a judge thereof, upon affidavit of the facts, for an order calling upon such justice and :also the party to be affected by such act to show cause why such act should not be done, and if after due service of such order good cause is not shown against it, the Court or judge may make the same absolute with or without or upon payment of costs.

A justice upon being served with an order absolute shall obey the order and do the act required by it to be done.

39. ( 1) Power of Court to order delivery of certain property. Where (a) Has come into the custody or possession of the police-

(i) In connection with any criminal charge under The Criminal Code; or

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12 s.40 JUSTICES ACT 1886..,1979

(ii) In connection with any charge under The Vagrants, Gaming, and Other Offences Act of 1931; or

(iii) In connection with any other prosecution under the laws of the State; or

(iv) Otherwise howsoever in the course of their duty; or (b) Has come into the custody or possession of a court or

clerk of petty sessions, whether as an exhibit or otherwise, in connection with any proceeding under this Act in a

summary way,

the Court of Petty Sessions may, on application either by an officer of police or clerk of petty sessions or by a claimant of the property, make an order for the delivery of the property to the person appearing to the Court to be the owner thereof, or if the owner cannot be ascertained make such order with respect to the property as to the Court may seem meet:

Provided that no such order shall be a bar to the right of any person to recover the property by action from the person to whom it is delivered by virtue of the order:

Provided further that such action shall be brought within six months next after the order is made.

(2) Regulations. The Governor in Council may make regulations for the disposal of property which has come into the custody or possession of the police or clerk of petty sessions under the circumstances mentioned in cases where the owner of the property has not been ascertained and no order of a competent Court has been made with respect thereto.

Without limiting the generality of such provisions, such regulations may authorise the sale of such property, and the application of the proceeds of such sale in such manner as may be prescribed.

Substituted by Act of 1932, 23 Geo. 5 No. 8, s. 2; as amended by Act of 1949, 13 Geo. 6 No. 30, s. 6.

Court of petty sessions, clerk of petty sessions-Now Magistrates Court and clerk of .the court; see Justices Acts Amendment Act of 1964, s. 2 (4).

INTERRUPTION OF PROCEEDINGS

40. Penalty for insulting or interrupting justices. ( 1) A person who-

( a) wilfully insults a justice or a witness or an officer of the court during his sitting as, or, as the case may be, attendance in a Magistrates Court or during his sitting or, as the case may be, attendance in any examination of witnesses in relation to an indictable offence or who is on his way to or from any such court or examination; or

(b) wilfully misbehaves himself in such a court or in the place where such an examination is being held; or

(c) wilfully interrupts the proceedings of such a court or examination; or

(d) unlawfully assaults, or wilfully obstructs a person in attendance at such a court or examination; or

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JUSTICES ACT 1886-1979 ss. 41,42 13 (e) without lawful excuse, disobeys a lawful order or direction

of such court or justice,

may by oral order of such court or justice, be excluded from such court or examination and, whether he is so excluded or not, may be summarily convicted by such court or justice of contempt.

(2) A person convicted of contempt under this section shall be liable to be imprisoned for a period not exceeding fourteen days OT to a fine not exceeding one hundred doHars and, in default of immediate payment of such fine, to be imprisoned for a period not exceeding fourteen days.

( 3) A person referred to in subsection ( 1) of this section-

( a) may be dealt with under this section without a complaint being made or a summons being issued in respect of him;

(b) may be taken into custody by a police officer on order of such court or justice and without further warrant;

(c) may be called upon by such court or justice to show cause why he should not be convicted of contempt under this section;

(d) may be dealt with by such court or justice under this section upon the court's or justice's own view, or upon the evidence of a credible witness.

( 4) A court or justice may, if it or he thinks fit, accept from any person convicted by it or him of contempt under this section, an apology for such contempt and may recommend that . the Governor in Council remit or respite any fine or punishment imposed on such person in respect of such contempt.

Decimal currency reference substituted pursuant to section 7 of Decimal Currency Act of 1965.

41. (Repealed).

Repealed by Act of 1899, 63 Vic. No. 9, s. 3.

PART IV-GENERAL PROCEDURE COMPLAINTS

42. Commencement of proceedings. ( 1 ) Except where otherwise expressly provided or where the defendant has been arrested without warrant, all proceedings under this Act shall be commenced by a complaint in writing, which may be made by the complainant in person or by his counsel or solicitor or other person authorized in that behalf:

Provide<}. that where a defendant is present at a proceeding and does not object, a further charge or an amended charge may be made against him and be proceeded with although no complaint in writing has been made in respect thereof.

(2) Where a defendant has been atTested on any charge and no complaint in writing has been made and in a case to which the proviso to

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14 ss. 43-46 JUSTICBS ACT 1886-1979

subsection ( 1) of this section applies particulars of the charge against him shall be entered on the Bench Charge Sheet.

Substituted by Act of 1964, No. 32, s. 20; as amended by Act of 1965, No. 43.

s. 13 (2).

43. Matter of complaint. ( 1) Every complaint shall be for one matter only, and not for two or more matters, except-

(a) in the case of indictable offences if the matters of complaint are such that they may be charged in one indictment;

(b) in cases other than cases of indictable offences, if the matters.

of complaint-

(i) are alleged to be constituted by the same act or omission on the part of the defendant;

(ii) are alleged to be constituted by a series of acts done or omitted to be done in the prosecution of a single purpose;

(iii) are founded on substantially the same facts; or

(iv) are, or form part of, a series of offences or matters of complaint of the same or a similar character;

(c) when otherwise expressly provided.

(2) When two or more matters of complaint are joined in the one complaint each matter of complaint shall be set out in a separate paragraph.

( 3) At the hearing of a complaint in which two or more matters of complaint have been joined but which does not comply with the provisions of this section-

(a) if an objection is taken to the complaint on the ground of such non-compliance, the court shall require the complainant to choose one matter of complaint on which to proceed at that hearing;

(b) if no such objection is taken to the complaint, the court may proceed with the hearing and may determine the matters of complaint, and may convict or acquit the defendant in accordance with such determination.

( 4) If, at the hearing of a complaint, it appears to the court that a defendant may be prejudiced or embarrassed in his defence because the complaint contains more than one matter of complaint or that for any other reason it is desira:ble that one or more matters of complaint should be heard separately, the court may order that such one or more matters of complaint be heard separately.

44, 45. (Repealed).

Repealed by Act of 1899, 63 Vic. No. 9, s. 3.

46. Description of persons and property. Such description of persons or things as would be sufficient in an indictment shall be sufficient in complaints.

(18)

JUSTICES ACT 1886-1979 ss.47,48 15

47. What is sufficient description of offence. Compare 7 Geo. 4 c. 64, s. 21. ( 1) The description of any offence in the words of the Act, order, by-law, regulation, or other instrument creating the offence, or in similar words, shall be sufficient in law.

(2) Where a person is convicted of an offence by a Magistrates Court other than a children's court and it is proved to the satisfaction of the court on oath or as prescribed by subsection (3) of this section that there has been served upon ·the defendant with the summons or a reasonable time before the time appointed for the appearance of the defendant a notice specifying any alleged previous summary conviction of the defendant for an offence proposed to be brought to the notice of the court in the event of his conviction for the offence charged and the defendant is not present in person before the court, the court may take account of any such previous conviction so specified as if the defendant had appeared and admitted it. ·

( 3) Any person who serves suoh a notice specifying any alleged previous conviction may serve such notice in the same manner as is provided for the service of a summons by this Act and may attend before any justice having jurisdiction in the State or part of the State or part of the Commonwealth in which such notice was served and depose, on oath and in writing endorsed on the notice, · to ~he service thereof.

Such deposition shall upon production to the court by whom the case is heard and determined be sufficient proof of the service of the notice on the defendant.

( 4) Unless otherwise expressly provided, if, for the purpose of the assessment of penalty in respect of a simple offence, it is intended to rely upon a circumstance which renders the defendant liable, upon conviction~

to a greater penalty than that to which he would otherwise have been liable, that circumstance shall be expressly stated in the complaint made in respect of that offence except when that circumstance is that the defendant has been previously convicted summarily of an offence.

As amended by Act of 1963, No. 10, s. 2; Act of 1964, No. 32, s. 22.

VARIANCE AND AMENDMENT

48. Amendment of complaint. If at the hearing of a complaint, it appears to the justices that-

(a) there is a defect therein, in substance or in form, other than a

non~compliance with the provisions of section forty-three of this Act; or

(b) there is a defect in any summons or warrant to apprehend a defendant issued upon such complaint; or

(19)

16 ss. 49-51 JUSTICES ACT 1886~1979

(c) there is a variance between such complaint, summons or warrant and the evidence adduced at the hearing in support thereof,

then-

(i) if an objection is taken for any such defect or variance, the justices shall; or

(ii) if no such objection is taken the justices may,

make such order for the amendment of the complaint, summons or warrant as appears to them to be necessary or desirable in the interests of justice.

49. Amendment. Compare 11 & 12 Vic. c. 42, s. 10, and 11 & 12 Vic. c. 43, s. 3. If in making an order for the amendment of a complaint summons or warrant the justices consider that the defendant has been misled by the form in which the complaint summons or warrant has been made out or if it appears to them that the variance between the complaint summons or warrant and the evidence adduced at the hearing in support thereof is such that the defendant has been thereby deceived or misled, they may, and at the request of the defendant shall, upon such terms as they think fit, adjourn the hearing of the case to some future day, and in the meantime may commit the defendant, or if the defendant is in custody order his discharge upon his entering into a recognizance conditioned for his appearance at the time and place to which the hearing is adjourned, or if the defendant is not in custody may suffer him to go at large but may also require him to enter into a recognizance conditioned as aforesaid.

50. Recording of amendment. When an order for the amendment of a complaint, summons or warrant has been made, the Magistrates Court, or, as the case may be, the justices taking an examination of witnesses in relation to an indictable offence, shall forthwith cause particulars thereof to be entered on the proceedings and, if thereunto required by the party against whom the order has been made, shall cause a minute thereof to be given to him.

Substituted by Act of 1964, No. 32, s. 24; as amended by Act of 1965, No. 43, s. 13 (2).

COMPLAINTS HOW MADE

51. When complaint to be on oath and when not. Unless otherwise expressly provided-

(a) when it is intended to issue a warrant in the first instance against the party charged, the complaint in writing must be on oath, which oath may be made by the complainant;

(b) when it is· intended to issue a summons in the first instance against the party charged, the complaint in writing need not be on oath.

(20)

JUSTICES ACT 1886-1979 ss. 52-54 17 LIMITATION

52. Limitation of proceedings. Compare 11 & 12 Vic. c. 43, s. 11.

In any case of a simple offence or breach of duty, unless some other time is limited for making complaint by the law relating to the particular case, complaint must be made within one year from the time when the matter of complaint arose.

SUMMONS

53. When justice may issue summons. Compare 11 & 12 Vie. c. 42, s. 1, and 11 & 12 Vic. c. 43, s. 1. When a complaint is made before a justice that any person is guilty of or is suspected of having committed any indicta:ble offence, simple offence, or breach of duty, within the jurisdiction of such justice, then such justice may issue his summons.

No objection shall be taken or allowed to a summons issued upon a complaint under this section on the ground that-

(a) the justice who issued the summons and the complainant were at the date of its issue-

(i) officers of the same department, sub-department, branch or section of a department of the Government of the Commonwealth or of the State;

(ii) employees of Brisbane City Council;

(iii) employees of the same Local Authority within the meaning of the Local Government Act 1936-1971; or.

(b) the justice who issued the summons was at the date of its issue, the complainant's solicitor, or that solicitor's partner or an employee of either of them.

54. Form of summons and illing of complaint and summons. ( 1) Every summons shall be directed to the defendant and shall require him, to appear at a certain time and place before the Magistrates Court, or, a~

the case may require, before justices taking an examination of witnesses in relation to an indictable offence, to answer the complaint and to be further dealt with according to law.

Every summons shall be served in accordance with this Act, and, where the summons has been issued on a complaint in writing, other than an entry of a charge on a Bench Charge Sheet, a copy of such complaint shall be served with and in the same manner as the summons.

(2) Every summons and, where the summons has been issued on a complaint in writing, other than an entry of a charge on a Bench Charge Sheet, such complaint, shall, before the hearing is proceeded with, be lodged with the clerk of the court at the place at which the defendant is required by the summons to appear, to be by such clerk kept and preserved.

85225-B

(21)

18 ss. 55,56 JUSTICES ACT 1886-1979

( 3) (a) Where a summons has not been served upon a defendant prior to the time at which the defendant is thereunder required to appear before a Magistrates Court, or, as the case may be, before justices taking an examination of witnesses in relation to an indictable offence, the clerk of the court at the place where the defendant is required by the summons to appear, being a justice, or other justice at such place authorized by such clerk, whether or not such clerk is a justice, may, from time to time and before, at or after the time appointed by the summons for the appearance of the defendant in accordance with the summons, extend the time so appointed.

(b) Every such extension shall be made under the hand of the justice making the same, who shall alter the time appointed in the summons and shall endorse and sign a memorandum in the margin of the summons, as nearly opposite such alteration as is practicable, stating that the time appointed has been extended and the date to which such . time has been extended.

Substituted by Act of 1964, No. 32, s. 26; as amended by Act of 1965, No. 43, s. 13 .(2); Act of 1968, No. 14, s. 4.

55. Ex parte proceedings. Compare 11 & 12 Vic. c. 43, s. 1. Nothing herein contained shall oblige any justice to issue a summons in any case where the application for an order of justices is by law to be made ex parte.

SERVICE, ENDORSEMENT, AND PROOF OF SERVICE

56. ( 1) A summons shall be properly served upon the person to whom it is directed if it is served in accordance with this subsection, that is to say-

( a) in the case of a summons directed to a person to appear to answer a complaint of a simple offence or breach of duty, by posting (by means of registered post) a copy thereof addressed to him at his place of business or residence last known to the complainant at least twenty-one days before the date on which the defendant is, by the summons, required to appear; or

(b) in all cases (including the case referred to in subparagraph (a) of this subsection), by delivering a copy thereof to him personally or, if he cannot reasonably be found, by leaving a copy thereof with some person for him at his usual place of business or residence or place of business or residence last

known to the person who serves the summons.

(2) Save where it appears that the person to whom a copy of a summons was posted addressed to him at an address in this subsection specified was not, to the knowledge of the complainant, at the time of posting, residing or carrying on business at such address, it shall be sufficient compliance with the provisions of subparagraph (a) of subsection ( 1) of this section if the copy summons is addressed to an address as follows:-

( a) in the case of an offence arising out of the driving or use of a motor vehicle or an attempt so to do, the address appearing

(22)

JUSTICES ACT 1886-1979 s. 56 19 as the address of the person on a driver's licence produced by him at or about the time of the alleged offence or upon the investigation thereof;

(b) in the case of an offence alleged against a person as owner of a motor vehicle, the address appearing in the current certificate of registration of the motor vehicle under The Main ·Roads Acts, 1920 to 1965, as the address of that person;

(c) in the case of any other offence or breach of duty, the address appearing as the address of the person in any licence or registration for the time being in force pertaining to such person or to any property of which he appears to be the owner or occupier and which licence or registration such person holds or has effected under the Act against or under a provision of which the offence or breach is alleged to have been committed.

(3) The person who serves a summons shall either-

( a) attend personally before the Magistrates Court, or, as the case may be, the justices taking the examination of witnesses in relation to an indictable offence, ·at the place and time for hearing mentioned in the summons and, if necessary, at any extended time therefor, to depose, if necessary, to the service thereof; or

(b) attend before any justice of the peace having jurisdiction in the State or part cif the State or part of the Commonwealth in which such summons was served and depose, on oath and in writing endorsed on a copy of the summons, to the service thereof.

( 4) Where a summons is served as prescribed by subparagraph (a) of subsection ( 1) of this section,-

( a) the person who serves the summons shall, in his deposition as to service endorsed on a copy of the summons under subsection ( 3) of this section, state the time and place at which he posted the copy of the summons;

(b) the complainant shall depose, on oath and in writing endorsed on the copy of the summons endorsed under subsection ( 3) of this section, that the address to which a copy of the summons was posted is (if such be the case) the defendant's address last known to him and as to his means of knowledge.

( 5) Every such deposition shall, upon production to the Magistrates Court by which or to the Stipendiary Magistrate by whom the complaint upon which the summons issued, is heard, or, as the case may be, to the justices whb take the examination of witnesses in relation to an indictable offence in respect of that complaint, be evidence of the matters contained therein and be sufficient proof of the service of the summons on the defendant.

(23)

20 ss.57,58 JUSHCES AJGT 1886~1979

( 6) Where proof is required in any proceeding of the service of a document which-

(a) pursuant to any enactment or rule of law may be served in the same manner as a summons may be served under this Act; or

(b) is served at the same time as, and in connection with a summons served under this Act,

the provisions of subsection ( 1) of this section shall apply and be construed as if a reference in that subsection to a summons were a reference to such a document.

The person who serves the document may attend before any justice having jurisdiction in the State or part of the State or part of the Commonwealth in which such document was served and depose on oath and in writing endorsed on the document to the service thereof.

Such deposition shall, upon production to the court by which or to the Stipendiary Magistrate by whom the proceeding is heard and determined, be evide11ce of the matters contained therein and be. sufficient proof of the service of the document on the defendant:

Substituted by Act of 1964, No. 32, s. 27; as amended by Act of 1968, No. 14, s. 5; Act of 1973, No. 22, s. 4.

WARRANTS IN THE FIRST INSTANCE

57. Warrant and summons in wbat cases issued. 11 & 12 Vic. c. 42, s.

1. When complaint is made before a justice-

( 1) That a person is suspected of having committed an indictable offence within the limits of the jurisdiction of· such justice, or (2) That a person charged with having committed any such offence elsewhere in Queensland is suspected of being within such limits, or

(3) Offences committed on the high seas or abroad. That a eerson charged with having committed an indictable offence on the high seas, or in any creek, harbour, haven, or other place in which the Admiralty of England have, or claim to have, jurisdiction, or on land outside the State of Queens- land, of which offence cognizance may be taken by the Courts of the State, is suspected of being within such limits, the justice may issue his warrant to apprehend such person and to cause him to be brought before justices to answer the complaint and to be further dealt with according to law.

58. Proviso. Provided that the justice, if he thinks fit, instead of issuing his warrant in the first instance to apprehend the person charged, may proceed by summons and issue a summons against him accordingly.

(24)

JUSTICES ACf 1886-1979 . ss. 59-64 21

Proviso as to issuing warrants. Notwithstanding the issue of a summons any justice may issue his warrant at any time before or after the time mentioned in the summons for the appearance of the defendant.

59. Warrant in the first instance. Compare 11 & 12 Vic. c. 43, s. 2.

( 1) When complaint is made before a justice of a simple offence, the justice may, upon oath being made before him substantiating the matter of the complaint to his satisfaction, instead of issuing a summons, issue in the first instance his warrant to apprehend the defendant, and to cause him to be brought before justices to answer the complaint and to be further dealt with according to law.

(2) A warrant in the first instance shall not be issued on a complaint of a simple offence (not being an indictable offence) pursuant to sub- section_( 1) unless the Act or law creating the offence authorises-

( a) the arrest of an offender without warrant; or (b) the issue of a warrant in the first instance.

DIRECTION OF WARRANTS

60. Direction of warrant. Compare 11 & 12 Vic. c. 42, s. 10, and 11

& 12 Vic. c. 43, s. 3. A warrant to apprehend a defendant that he may answer a complaint may be directed either to any police officer or officers by name, or generally to all police officers within the jurisdiction within which the warrant is to be executed, without naming them, or to both.

61. Any police officer may execute warrant. Compare 11 & 12 Vic.

c. 42, s. 10, and 11 & 12 Vic. c. 43, s. 3. When a warrant is directed to all police officers any police officer may execute the warrant as if it was dir~cted_specially to him by name.

FORM OF WARRANT

62. What warrants shall order. Compare 11 & 12 Vic. c. 42, s. 10, and 11 & 12 Vic. c. 43, s. 3. A warrant shall state shortly the offence or matter of the complaint on which it is founded, and shall name or otherwise describe the person against whom it is issued, and it shall order the police officers to whom it is directed to apprehend the defendant, and to bring him before justices to answer the complaint and to be further dealt with according to law.

63. Warrant to be in force till executed. Compare 11 & 12 Vic. c.

42, s. 10, and 11 & 12 Vic. c. 43, s. 3. A warrant need not be returnable at any pru.ticular time, but may remain in force until executed, and may be executed by apprehending the defendant at any place within the jurisdiction of the justice who issued it.

64. (Repealed).

Repealed by Act of 1899, 63 Vic. No. 9, s. ~.

(25)

22 SS. 65·69A JUSHCES A!Cf 1886~1979 SUNDAY WARRANTS

65. Sunday warrants. 11 & 12 Vic. c. 42, s. 4. A justice may grant or issue a warrant upon a complaint of an indictable offence, or a search warrant, on a Sunday as on any other day.

66-68. (Repealed) .

Repealed by Act of 1964, No. 32, s. 28.

ARREST WITHOUT WARRANT

69. How person arrested without wa1ntnt to be dealt with. A person taken into custody for an offence without a warrant shall be brought before a justice to be dealt with according to law as soon as practicable after he is taken into custody.

Substituted by Act of 1958, 7 Eliz. 2 No. 39, s. 4.

TAKING OF BAIL BY POLICE OFFICERS

69A. When police officer may take ooil. ( 1) When a person taken into custody for a simple offence whether with or without warrant, is delivered into the custody of any police officer during his attendance at any police station, and has not appeared before a justice in relation to that offence, that police officer may, if he is satisfied that such person cannot be taken forthwith before a justice to be dealt with according to law and if he deems it prudent so to do, take bail-

( a) by recognizance, with or without sureties as he thinks fit and for such amount as he deems sufficient, from that person conditioned; or

(b) by accepting such deposit of money as he deems sufficient as security,

for that person's appearance in accordance with this section before a jusJice to be dealt with according to law.

(2) Every recognizance taken under this section shall be conditioned, and every deposit of money accepted under this section shall be as security, for the appearance of the person admitted to bail-

(a) in the case of a recognizance, before a justice at the day, time and place named in the recognizance; or

(b) in the case of a deposit of money, before a justice at the day, time and place appointed for such appearance and entered in pursuance of subsection ( 4) of this section by the police officer accepting such deposit of money in the book to be kept for that purpose at the police station.

(3) Every recognizance taken under this section shall oblige the parties entering into it, and the same proceedings shall lie to enforce it, as if it had been taken before a justice, and, for the purposes of this Act, shall be deemed to have been taken before a justice.

( 4) The police officer taking any such recognizance or accepting any such deposit of money shall enter in the book to be kept for that purpose at the police station-

(26)

JUSTICES ACT 1886-1979 s. 70 23

(a) the name, address and occupation of the person to be admitted to bail;

(b) in the case of a recognizance, the name, address and occupation of each surety, if there be any, and the condition of the recognizance;

(c) in the case of a deposit of money, the amount thereof and the day, time and place appointed for the appearance before a justice of the person admitted to bail,

and, in the case of a recognizance, shall lay the original recognizance before, or, in the case of a deposit of money, shall produce the said book to, the justice present at the day, time and place when and where the person admitted to bail is required to appear.

(5) In the case of a deposit of money, the police officer accepting such deposit shall-

( a) give to the person admitted to bail a statement in writing of; and

(b) when such deposit is accepted at a place other than a place appointed for holding Magistrates Courts, or deemed so to be, cause to be communicated to the watch-house keeper at the police station at the place where the person admitted to bail is required to appear,

the particulars entered by him as prescribed by subsection ( 4) of this section and the particulars of the charge in respect of which such person is admitted to bail.

Such watch-house keeper shall cause the particulars communicated to him to be entered in the book kept for the purposes of this section at the police station at which he is watch-house keeper, and shall produce such book to the justice present at the day, time and place when and where the person. admitted to bail is, according to such particulars, required to appear.

( 6) An apparently genuine document purporting to be a recognizance under this section, or a book purporting to be a book Teferred to in subsection ( 4) of this section, shall upon its production, and without further proof, be admitted before any court or justice as prima facie evidence of all matters recorded or stated therein which are relevant to the proceeding before such court or justice.

(7) Admission to bail under this section of any person shall discharge any duty theretofore had of taking that person before a justice to be dealt with according to law.

Substituted by Act of 1964, No. 32, s. 29; as amended by Act of 1965, No. 43, s. 13 (2).

PUBLICITY

70. Open Court. Compare 11 & 12 Vic. c. 42, s. 19, and 11 & 12 Vic. c. 43, s. 12. The room or place in which justices sit to hear and determine any complaint upon which a conviction or order may be made, shall be deemed an open and public court, to which all persons may have access so far as the same can conveniently contain them:

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