I. INTRODUCTION
2.1 We have said that the language of criminal procedure creates difficulties. In this part, we seek to explain, in general terms, what is meant by some of the words and phrases which we use in later parts. The generality of our explanations is such that we cannot claim that they are comprehensive but they should be adequate for the purposes of a general introduction Our explanations refer to the laws of New South Wales. They do not refer to any laws of the Commonwealth, even though those laws are often relevant in proceedings in the courts of New South Wales. In some instances, our explanations are coupled with comments, and some comments foreshadow issues to be considered later.
II. FELONIES AND MISDEMEANOURS
2.2 In New South Wales, but not, for example, in England and Victoria, an archaic distinction is still drawn between offences which are called felonies and those which are called misdemeanours. 1 A person convicted of a felony was originally liable to suffer death or, alternatively, penal servitude in addition to forfeiture of property and civil rights. A person convicted of a misdemeanour was liable only to a fine or imprisonment. When penal servitude was much more onerous than imprisonment there was much to be said for the distinction Little can be said for it now that, in practice, there is no difference between penal servitude and imprisonment, and forfeiture has been abolished. Nonetheless, the distinction is still drawn in legislation and has important consequences. Powers of arrest in the case of felonies are, for example, different from powers of arrest in the case of misdemeanours. On the other hand, the distinction no longer reflects any difference in the seriousness of offences.
III. SUMMARY OFFENCES AND INDICTABLE OFFENCES 2
2.3 Subject to exceptions to be noted below, summary offences are dealt with by magistrates and indictable offences are dealt with by judge and jury. Summary offences can be created only by Parliament But not all offences created by Parliament are summary offences. Unless the statute which creates an offence says, in effect, that it is a summary offence, it is an indictable offence. In general usage, an indictment is the written charge upon which a person is tried by a judge and jury in the Supreme Court or the District Court. Hence, speaking generally, an indictable offence is one which is tried in that manner. Where, however, a statute says that an offence is to be triable, or punishable on conviction before a justice or justices, it can be inferred that the offence is not to be tried on indictment but in a summary manner in a Court of Petty Sessions.
2.4 There are exceptions to the general statements made in the preceding paragraph. Some indictable offences are dealt within Courts of Petty Sessions. For the most part-these offences fall into one of two classes. One class comprises indictable offences which are dealt with summarily without the consent of the defendant. For example, by virtue of section 501 of the Crimes Act 1900, a number of indictable offences relating to property (for example, stealing a chattel or stealing money) may be dealt with summarily without the consent of the defendant where the value of the property or the amount of money does not exceed $500. The other class comprises indictable offences which may be dealt with summarily only if the defendant consents and the magistrate is satisfied that the case is one which may properly be disposed of summarily. Section 476 of the Crimes Act, 1900, is directed at these offences. That section applies, for example, to stealing a chattel or stealing money where the value of the chattel or the amount of money does not exceed $1,000. We consider sections 476 and 501 in some detail in chapter 8.
2.5 Another exception to the general statements made in paragraph 2.3 is that proceedings for some indictable offences, for example, the common law offence of conspiracy to cheat and defraud, may be taken before the Supreme Court in its Summary jurisdiction by virtue of the Supreme Court (Summary Jurisdiction) Act 1967, and Acts such as the Crimes (Amendment) Act 1971).
IV. COMMITTAL PROCEEDINGS
2.6 Where a person is charged with an indictable offence, and the offence is not disposed of summarily, it is usual for a justice or justices (usually a stipendiary magistrate) to conduct a preliminary hearing for the purpose of determining whether the defendant should be committed for trial in the Supreme Court or the District Court. These preliminary hearings are often called “committal proceedings”. In these proceedings, in words used in the Justices Act 1902, 3 if the magistrate is of the opinion that on the evidence the defendant ought not to be put upon his trial, the defendant, if in custody, is discharged as to the matter then under inquiry. If however, the magistrate is of the opinion “that the evidence is sufficient to warrant the defendant being put on his trial for an indictable offence, or if the evidence raises a strong or probable presumption of guilt of the accused”, the defendant is committed for trial. These words create difficulties to which we refer in chapter 10. 4 Their practical effect is that the magistrate decides on the basis of the evidence presented whether or not the defendant should stand trial. A defendant who is charged with an indictable offence not punishable with penal servitude for life may, at any stage of the proceedings, plead guilty to the charge. If the magistrate accepts the plea, certain consequences follow to which we also refer in chapter 10. 5
V. JUSTICES
2.7 The expression “Justice or Justices” is often used in the context of criminal procedure. It is a short way of referring to justices of the peace. In practice, it often refers to a stipendiary magistrate who is, by virtue of his office, a Justice of the peace. 6 This arrangement has ancient roots. In England the name of Justice of the Peace was first given to the office of magistrate by the Justices of the Peace Act 1361. 7
VI. INFORMATIONS 8
2.8 An “information” is merely a statement by a person which informs a justice that an offence is alleged to have been committed. It is used to initiate proccedings in respect of both indictable and summary offences. An information need not be in writing or on oath unless, in the case of an indictable offence, a warrant to apprehend the alleged offender is to be issued. An information must identify the informant and the defendant, and specify the time, place, and manner of the alleged offence.
VII. COMPLAINTS 9
2.9 A “complaint’ to a justice is sometimes used to initiate proceedings in respect of a summary offence. it need not be in writing unless it is required to be so by the Act upon which it is founded. A complaint is usually made, as distinct from an information being laid, where the court has power to order a defendant to pay money.
VIII. WARRANTS 10
2.10 In the context of the initiation of criminal proceedings, a “warrant’ is a document, signed and sealed by a justice, addressed to the Chief Constable of a particular place and to all other Peace Officers in the State. In the case of an indictable offence, it says that a named person has been charged on oath before a justice with committing the offence, and it commands the apprehension of that person so that he or she shall “answer unto the said charge” and “be further dealt with according to law”. In the case of a summary offence, the form of the warrant to apprehend is substantially the same as that used in the case of an indictable offence. The difference is that it speaks of “an information having been laid, and oath having been made substantiating the matter of the information”, not of “a charge on oath”. Warrants to apprehend, or to arrest, are to be distinguished from warrants of commitment. 11 The latter are documents which authorise a person to be imprisoned under an order of a court.
IX. INDICTMENTS
2.11 As noted already in general usage an indictment is the written charge upon which a person is tried by a judge and jury in the Supreme Court or the District Court. Section 5 of the Australian Courts Act 1828 (Imp.) provides:
“... all Crimes, Misdemeanours, and Offences ... shall be prosecuted by Information, in the name of His Majesty’s Attorney-General, or other Officer duly appointed for such purpose...”
Section 4 of the Crimes Act, 1900, defines “Indictment” as including any information presented or filed as provided by law for the prosecution of offences.
“The purpose of s.5 of the Australian Courts Act was to arm the Attorney-General for New South Wales and Crown Prosecutors appointed by him with a power in all respects similar to that enjoyed by the Attorney General in England and to extend the exercise of the power to all offences, including felonies. The section was enacted because the customary mode of initiating criminal proceedings in England, by presentment of the grand jury, was unsuited, or thought to be unsuited, to conditions in the colony at that time.” 12
Usually it is after the defendant has been committed for trial that the Attorney General decides whether he will file an indictment under section 5 of the Australian Courts Act, but there is nothing to prevent the Attorney-General from filing an indictment before an information is laid or before committal proceedings have been commenced or completed. When the Attorney-General files an indictment without prior committal proceedings, the indictment is called an ex officio indictment.
X. TRIALS
2.12 When we use the word “trial”, we refer to the contested proceedings which usually follow a plea of not guilty, we do not refer, for example, to the proceedings in relation to sentence which usually follow a plea of guilty or to any proceedings which are merely incidental to the determination of the main issue, namely, is the defendant guilty or not guilty?
XI. BAIL 13
2.13 At common law, an accused person was said to be admitted to bail when he or she was released from the custody of officers of the law and was entrusted to the custody of persons known as sureties. The Sureties were bound to produce the accused person to answer, at a specified time and place, the charge against that person. In default of doing so, the sureties were liable to forfeit a sum of money which hid been specified which bail was granted. The effect of granting bail was therefore not to set accused persons free but to release them to the custody of their sureties. Since the enactment of the Bail Act, 1978, bail is an authorisation to be at liberty under that Act, instead of in custody. The Act provides that conditions may he imposed on the granting of bail for the purpose of promoting effective law enforcement and the protection and welfare of the community. This provision for conditional bail replaces many features of the old bail system, but retains the surety system under a different name. There are restrictions on the conditions which can be imposed but they are presently irrelevant.
XII. RECOGNIZANCE 14
2.14 In very general terms, a recognizance is a formal acknowledgement by a person that he or she is bound to keep the peace or to be of good behaviour for a specified term. If the bond is breached, the person bound will forfeit a specified sum of money. The process of entering into a recognizance is commonly called being “bound over”.
XIII. DEPOSITIONS
2.15 Depositions, in the most general sense of that word, are the statements on oath of witnesses in judicial proceedings. By virtue of section 409 of the Crimes Act 1900, a deposition of a witness in committal proceedings may be read as evidence at the trial of an accused person if the conditions of that section are satisfied. One of the conditions is that the witness is dead, or so ill as not to be able to travel or to give evidence. It can thus be seen that one purpose of taking depositions is to enable evidence to be recorded for later use.
XIV. APPEALS
2.16 A person who is aggrieved by a decision of an inferior criminal court is usually entitied to have the decision judicially examined by a superior criminal court. Sometimes the right arises out of a rule of the common law but more frequently it arises Out of a provision of an Act of Parliament. When it is created by an Act, it is called a right of appeal Rights of appeal to the District Court are given to defendants in respect of most orders made in Courts of Petty Sessions and to the Court of Criminal Appeal in respect of most orders made in the District Court or the Supreme Court The subject of appeals will be considered in a later Issues Paper.
XV. VOIR DIRE 15
2.17 In the context of the functions of judge and jury, there is a general rule that questions of law must be determined by the judge and questions of fact must be determined by the jury. There are, however, some exceptions to this rule. One exception is concerned with the conditions which must be satisfied before evidence is admissible before a jury. If, for example, an accused person objects to evidence being given of an alleged confession on the ground that it was not given voluntarily, the judge, and not the jury, must determine the disputed facts. The entirely separate nature of these incidental issues is illustrated by the fact that the proceedings to determine them are usually held in the absence of the jury. They are referred to as avoir dire or “a trial within a trial”.
FOOTNOTES
1. See, for example, Criminal Law Revision Committee, Felonies and Misdemeanours (Seventh Report, 1965) (England) and Sub-committee of the Chief Justice’s Law Reform Committee, Abolition of the Distinction between Felonies and Misdemeanours (Report Vic. Govt Printer, 1973). The English Report is reprinted ,it 1970 of the Victorian Report. The distinction is abolished in England by the Criminal Law Act 1967 (U.K.) and in Victoria by the Crimes (Classification of Offences) Act 1981.
2. See, generally, A. P. Bates, T.L. Buddin and D.J. Meure, The System of Criminal Law: Cases and Materials (Butterworths, Sydney, 1979), paras.2.8-2.19
3. Section 41(2) and (6).
4. See 10.61- 10.66
5. See paras. 10.40 and 10.72-73.
6. Justices Act 1902 (NSW). s.9.
7. Halsbury’s Laws of England, (Butterworths, London, 4th ed. 1979), paras.201.
8. See generally, J. Smith, J. Miles and K. Shadbolt, Justices Act and Summary Offences (New South Wales) (Butterworths, Sydney, 1980), para.1066.
9. Id.
10. See, for example, id., para.2531.
11. See id., paras.2601-2602.
12. Barton v. The Queen (1980) ;2 ALR 449, at p.4571; (1980) 55 ALRJ 31, at p.35, per Gibbs and Mason JJ.
13. See, generally, B.H.K. Donovan The Law of Bail (Legal Books Pty. Ltd., Sydney, 1981) ch.1 (“The nature of Bail”).
14. See Jowitt’s Dictionary of English Law,(ed J Burke) (Sweet and Maxwell, London, 1977), vol.2, p.1506 (“Recognizance”).
15. Cross on Evidence (Butterworths, Sydney. 2ed Australian ed. 1979) p.61.
