Criminal Procedure Act 2007 (NI)

NORFOLK ISLAND

Criminal Procedure Act 2007

No. 12, 2007

Compilation No. 5

Compilation date: 10 July 2021

Includes amendments up to: Norfolk Island Continued Laws Ordinance 2015 (No. 2, 2015) as amended up to Norfolk Island Legislation Amendment (Criminal and Civil Matters) Ordinance 2021 (F2021L00975)

NORFOLK ISLAND

CRIMINAL PROCEDURE ACT 2007

CHAPTER 1 – PRELIMINARY 1 Short title 2 Commencement 4 Application of Act 5 Act binds the Administration 6 Commonwealth law 7 Definitions CHAPTER 2 – UNFITNESS TO PLEAD, MENTAL IMPAIRMENT AND MENTAL DYSFUNCTION Division 1 – Preliminary 8 Definitions for Chapter 2 9 Limitation on orders and detention – non-acquittals 10 Limitation on orders and detention – acquittals 11 Limitation on Supreme Court orders 12 Limitation on orders and detention – dismissal of charge 13 Limitation on orders and detention – Court of Petty Sessions 14 Limitation on Court of Petty Sessions orders 15 How relevant court may inform itself 16 Criteria for detention 17 Assessment whether emergency detention required Division 2 – Unfitness to plead 18 Referral to Tribunal 19 Person found fit to plead 20 Action pending determination by Tribunal 21 Temporary unfitness to plead – non-serious offence 22 Temporary unfitness to plead – serious offence 23 Special hearings 24 Nature and conduct of special hearing 25 Verdicts available at special hearing 26 Non-acquittal at special hearing – non-serious offence 27 Non-acquittal at special hearing – serious offence 28 Action if accused becomes fit to plead after special hearing Division 3 – Acquittal on grounds of mental impairment 29 Acquittal on grounds of mental impairment 30 Plea of not guilty by reason of mental impairment 31 Explanation to jury 32 Court orders following acquittal – non-serious offence 33 Court orders following acquittal – serious offence Division 4 – Dismissal by Court of Petty Sessions on grounds of mental impairment 34 Meaning of serious offence in Division 4 35 Dismissal on grounds of mental impairment 36 Plea of not guilty by reason of mental impairment 37 Court of Petty Sessions orders following dismissal – non-serious offence 38 Court of Petty Sessions orders following dismissal – serious offence Division 5 – Referral of mentally dysfunctional or mentally impaired persons to Tribunal following conviction 39 Application of Division 5 40 Referral to Tribunal Division 6 – Summary proceedings against mentally dysfunctional or mentally impaired persons 41 Application of Division 6 42 Indictable offences heard and determined summarily 43 Powers of Court of Petty Sessions 44 Fitness to plead – Court of Petty Sessions 45 Action if accused becomes fit to plead after hearing 46 How Court of Petty Sessions may be informed CHAPTER 3  CRIMINAL INVESTIGATION Division 1  Preliminary 47 Definitions for Chapter 3 48 Search of transgender or intersex person 49 Application of chapter 3 Division 2 Preventative action 50 Police powers of entry 51 Issue of warrant 52 Entry in emergencies 53 Seizure of firearms—warrants and emergencies 54 Seizure of firearms—apprehended violence orders 55 Power to conduct search of person for knife Division 3 Search warrants 56 When search warrants can be issued 57 The things that are authorised by search warrant 58 Availability of assistance and use of force in executing warrant 59 Details of warrant to be given to occupier etc 60 Specific powers available to police officers executing warrant 61 Use of equipment to examine or process things 62 Use of electronic equipment at premises 63 Compensation for damage to electronic equipment 64 Copies of seized things to be provided 65 Occupier entitled to be present during search 66 Receipts for things seized under warrant 67 Warrants by telephone or other electronic means 68 Restrictions on personal searches Division 4 Powers to stop and search 69 Stopping, searching and detaining people 70 How a police officer exercises a power under s 69 71 Stopping, searching and detaining conveyances 72 How a police officer exercises a power under section 71 Division 5 Arrest and related matters 73 Requirement to provide name etc 74 Power of arrest without warrant by police officers 75 Arrest without warrant in possession 76 Arrest of prisoner unlawfully at large 77 Arrest without warrant for offences committed outside Norfolk Island 78 Power of arrest without warrant by other persons 79 Warrants for arrest 80 Power to enter premises to arrest offender 81 Use of force in making arrest 82 Persons to be informed of grounds of arrest 83 Power to conduct frisk search of arrested person 84 Power to conduct ordinary search of arrested person 85 Power to conduct search of arrested person's premises 86 Power to conduct search at police station 87 Power to conduct strip search 88 Rules for conduct of strip search 89 Safekeeping of things seized 90 Taking fingerprints, recordings, samples of handwriting or photographs 91 Destruction of identification material 92 Offence of refusing to allow identification material to be taken 93 Identification parades—general 94 Identification parades for suspects under 18 etc 95 Identification by means of photographs 96 Identification procedures if more than 1 suspect 97 Descriptions 98 Examination Division 6  General 99 Assisting officers—search and arrest of persons 100 Conduct of ordinary searches and frisk searches 101 Announcement before entry 102 Offence of making false statements in warrants 103 Offences relating to telephone warrants 104 Return of seized knife or thing 105 Court of Petty Sessions may permit thing to be retained 106 Laws relating to taking forensic samples not affected 107 Forfeiture of knife 108 Seizure of forfeited articles 109 Disposal of forfeited articles by Chief Executive Office 110 Discharge of prisoner if case not to be proceeded with CHAPTER 4  INVESTIGATION OF EXTRATERRITORIAL OFFENCES 111 Interpretation for chapter 4 112 Declaration of corresponding law 113 Issue of search warrants 114 Authority given by search warrant 115 Offence of hindering execution of search warrant 116 Ministerial arrangements for transmission and return of objects seized under chapter 4 or corresponding law CHAPTER 5  PROCEDURE, EVIDENCE, VERDICT, ETC 117 What defects do not vitiate indictment 118 Formal objections—when to be taken 119 Judgment on demurrer to indictment 120 Traversing indictment 121 Orders for amendment of indictment, separate trial and postponement of trial 122 Amended indictment 123 Verdict and judgment valid after amendment 124 Form of record after amendment 125 Respiting undertakings on postponement 126 Separate offences—when can be joined 127 Accessories may be charged together in 1 indictment 128 Indictment charging previous offence also 129 Property of partners or joint owners 130 Description of written instruments 131 General averment of intent to defraud or injure 132 Indictment for murder or manslaughter 133 Form of indictment against accessories to murder 134 Addition of count for assault 135 Indictments for conspiracy 136 Arraignment etc on charge of previous conviction 137 Plea of not guilty 138 Refusal to plead 139 Plea of autrefois convict etc 140 Practice as to entering the dock 141 Accused may be defended by lawyer 142 Right to inspect depositions on trial 143 Power of judge to record verdict of acquittal 144 Notice of alibi 145 Abolition of presumption of marital coercion 146 Incriminating statements admissible though on oath 147 Evidence of previous conviction charged in indictment 148 Proof of lawful authority or excuse 149 Order of closing addresses 150 Witnesses in mitigation 151 Conviction for alternative offence 152 After trial for offence, if alternative verdict possible, no further prosecution 153 On trial for any offence—verdict of attempt 154 Multiple alternative verdicts CHAPTER 5A – APPEALS 154A Interpretation for this Chapter 154B Determination of appeal in ordinary cases 154C Powers of Court in special cases 154D Power to grant new trial CHAPTER 6  Evidence of children 155 Definitions for this Chapter 155A Meaning of give evidence in a proceeding by audiovisual link for this Chapter 155B Sworn or unsworn evidence 155C Proceedings to which this Chapter applies 155D Child giving evidence by audiovisual link 155E Representation of child 155F Consequential orders 155G Making of orders 155H Jury warning about inferences from child giving evidence by audiovisual link 155J Failure to comply with this Chapter 155K Child turns 18 during proceeding CHAPTER 6A  Evidence of witnesses with disabilities or vulnerabilities 160 Meaning of proceeding for this Chapter 160A Meaning of witness with a disability for this Chapter 160B Proceedings to which this Chapter applies 160C Child or witness with disability may have support person in court 160D Witness with vulnerability may give evidence in closed court 160E Making of orders under this Chapter—court not bound by rules of evidence CHAPTER 7  Evidence in sexual, violent and domestic violence proceedings Division 1  Preliminary 165 Failure to comply with this Chapter 165A Meaning of relevant person for this Chapter 165B Meaning of relative for this Chapter 165C Meaning of other family relationship expressions for this Chapter 165D Meaning of found guilty for this Chapter 165E Meaning of intellectually impaired for this Chapter 165F Meaning of lawyer for this Chapter 165G References to offences include related ancillary offences Division 2  Evidence in sexual and violent offence proceedings Subdivision A  Preliminary 166 Definitions for this Division Subdivision B  Sexual and violent offence proceedings: general 167 Meaning of complainant and sexual offence proceeding for this Subdivision 167A Meaning of violent offence proceeding for this Subdivision 167B Accused may be screened from witness in court 167C Examination of witness by self‑represented accused person—procedure 167D Sexual and violent offence proceeding—witness may have support person in court 167E Sexual and violent offence proceeding—evidence to be given in closed court 167F Sexual offence proceedings—publication identifying complainants Subdivision C  Sexual and violent offence proceedings: audiovisual recording of police interview admissible as evidence 168 Meaning of sexual offence and violent offence for this Subdivision 168A Meaning of sexual offence proceeding for this Subdivision 168B Meaning of violent offence proceeding for this Subdivision 168C Meaning of witness for this Subdivision 168D Meaning of audiovisual recording for this Subdivision 168E Audiovisual recording may be admitted as evidence106 168F Audiovisual recording—notice 168G Audiovisual recording—notice for access 168H Audiovisual recording—access to accused person 168J Audiovisual recording—admissibility 168K Audiovisual recording—jury trial 168L Transcript of audiovisual recording—access to court 168M Audiovisual recording—offences Subdivision D  Sexual and violent offence proceedings: giving evidence by audiovisual link 169 Definitions for this Subdivision 169A Meaning of complainant and sexual offence proceeding for this Subdivision 169B Meaning of violent offence proceeding for this Subdivision 169C Proceedings to which this Subdivision applies 169D Complainant or similar act witness giving evidence by audiovisual link 169E Recording evidence given in sexual offence proceedings 169F Consequential orders 169G Making orders under this Subdivision 169H Jury warning about inferences from complainant or similar act witness giving evidence by audiovisual link Subdivision E  Special provisions relating to retrials of sexual offence proceedings 170 Definitions 170A Admission of evidence of complainant in new trial proceedings 170B Complainant not compellable to give further evidence 170C Complainant may elect to give further evidence 170D Form in which record of original evidence of complainant is to be tendered 170E Access to audiovisual or audio recording 170F Exhibits may also be tendered Subdivision F  Special provisions relating to subsequent trials of sexual offence proceedings 171 Definitions 171A Admission of evidence of complainant in new trial proceedings 171B Whether complainant compellable to give further evidence 171C Complainant may elect to give further evidence 171D Application of provisions dealing with form of record of original evidence, access to recordings and exhibits Division 3  Evidence in domestic violence proceedings Subdivision A  Definitions for this Division 172 Meaning of domestic violence offence for this Division 172A Meaning of domestic violence offence proceeding for this Division 172B Meaning of complainant for this Division 172C Meaning of recorded statement for this Division Subdivision B  Evidence may be given in closed court 173 Evidence may be given in closed court Subdivision C  Recorded statement of police interview admissible as evidence: domestic violence offence proceedings 174 Recorded statement—requirements 174A Recorded statement—may be admitted as evidence 174B Recorded statement—hearsay rule and opinion rule 174C Validity of proceeding not affected 174D Recorded statement—represented accused person to be given copy 174E Recorded statement—unrepresented accused person to be given access 174F Recorded statement—admissibility 174G Recorded statement—accused person to be given audio copy 174H Recorded statement—jury trial 174J Recorded statement—offence to publish Subdivision D  Recorded statement of police interview admissible as evidence: application for apprehended domestic violence order 175 Recorded statement—may be admitted as evidence in application for apprehended domestic violence order Division 4  Evidence of complainant's sexual reputation and activities 177 Meaning of complainant and sexual offence proceeding for Division 4 178 When does Division 4 apply? 179 Immunity of sexual reputation 180 General immunity of evidence of complainant's sexual activities 181 Application for leave under s 180 182 Decision to give leave under s 180 Division 5  Protection of counselling communications 183 Definitions—Division 5 184 Meaning of protected confidence for Division 5 185 When does Division 5 apply? 186 Immunity for protected confidences in preliminary criminal proceedings 187 General immunity for protected confidences 188 Application for leave to disclose protected confidence 189 Threshold test––legitimate forensic purpose 190 Preliminary examination of protected confidence evidence 191 Procedure for preliminary examination 192 Giving of leave to disclose protected confidence 193 Ancillary orders for protection of person who made protected confidence 194 No waiver of protected confidence immunity 195 No protected confidence immunity for medical information 196 No protected confidence immunity for communications for criminal investigations and proceedings 197 No protected confidence immunity in case of misconduct Division 6  Sexual offence proceedings—directions and warnings to juries 198 Meaning of complainant and sexual offence proceeding for Division 6 199 Comments on complainants' evidence 200 Comments on children's evidence 201 Comments about lack of, or delays in making, complaint 202 Directions about implied consent 203 Directions about mistaken belief about consent CHAPTER 8  PUBLICATION OF EVIDENCE 212 Application—chapter 8 213 Prohibition of publication of evidence etc 214 Noncompliance with s 213 order CHAPTER 9  MISCELLANEOUS 215 Approved forms 216 Regulation-making power NOTES Table of Amendments