Western Australian Current Acts Western Australian Current Acts (1) In this Act,
unless a contrary intention appears —
accused includes —
(a) a
person charged with, convicted of, or found guilty of an offence;
(b) a
person whose conviction for an offence is stayed;
(c) a
person in respect of whom an appeal relating to an offence is pending;
(d) a
person in respect of whom a new trial for an offence has been ordered;
adjournment —
(a)
means any order of a court by which proceedings for an offence are postponed
or interrupted or are to be held at a different time or place before the same
court; and
(b) is
deemed to include any order of a court, other than a committal to the Supreme
Court or District Court, by which the venue of any proceedings for an offence
is changed to another court or a court at another place whether by way of a
remand, referral, or recommittal of the accused or otherwise;
appeal includes an application for leave to
appeal;
appropriate judicial officer means —
(a)
subject to paragraphs (b), (c) and (d), a judicial officer who is empowered to
exercise jurisdiction in the court before which the accused is required to
appear pursuant to his bail undertaking; or
(b) if
the court is the Court of Appeal, a judge of appeal; or
(c)
except in section 49, a judge of the Supreme Court or of the Children’s
Court, as the case may require, in any case where —
(i)
under section 15 only a judge of the Supreme Court or of
the Children’s Court has power to grant bail; or
(ii)
a judicial officer has exercised the power contained in
section 31(2)(d),
for the appearance in
question; or
(d)
except in section 49, a judge of the Supreme Court, of the District Court, or
of the Children’s Court, as the case may require, in any case where such
a judge has granted bail under section 14 for the appearance in question;
approved , in relation to a form, means approved
by the chief executive officer of the department of the Public Service
principally assisting in the administration of this Act;
approved electronic monitoring device means
—
(a) an
electronic monitoring device that has been approved by the CEO (corrections);
and
(b) any
equipment, wires or other items associated with a device under paragraph (a);
as soon as is practicable means as soon as is
reasonably practicable;
authorised community services officer means any of
the following persons —
(a) the
CEO (corrections) or a delegate of the CEO (corrections) under subsection (5);
(b) a
registrar of the Children’s Court;
(c) a
superintendent of a detention centre under the Young Offenders Act 1994 ;
(d) the
officer for the time being in charge of any detention centre under the
Young Offenders Act 1994 ;
authorised officer means an authorised police
officer or an authorised community services officer;
authorised police officer means —
(a) a
police officer who holds the rank of sergeant, or a higher rank;
(b) the
police officer who is for the time being in charge of a police station;
(c)
whichever of these officers is for the time being in charge of a lock-up
—
(i)
a police officer;
(ii)
a special constable appointed under the Police Act 1892
Part III whose powers, duties and obligations are or include those of an
authorised police officer under this Act;
(iii)
a police auxiliary officer appointed under the Police
Act 1892 Part IIIB whose powers, duties and obligations are or include those
of an authorised police officer under this Act;
bail undertaking means an undertaking described in
section 28(2);
CEO (corrections) means the chief executive
officer of the Public Sector agency principally assisting the Minister
administering Part 8 of the Sentence Administration Act 2003 in its
administration;
Chief Judge means the Chief Judge of the District
Court;
Chief Justice means the Chief Justice of Western
Australia;
child has the same meaning as young person has in
the Young Offenders Act 1994 ;
Commonwealth Criminal Code means the Criminal Code
set out in the Schedule to the Criminal Code Act 1995 (Commonwealth);
community corrections officer has the same meaning
as in the Sentence Administration Act 2003 ;
confirmed control order has the meaning given in
the Commonwealth Criminal Code section 100.1(1);
court means each of the following —
(a) the
Magistrates Court;
(b) the
Children’s Court;
(c) the
Coroner’s Court of Western Australia;
(d) the
District Court;
(e) the
Supreme Court;
(f) the
Court of Appeal;
court custody centre has the meaning given in the
Court Security and Custodial Services Act 1999 section 3;
designated family relationship means a
relationship between 2 persons —
(a) who
are, or were, married to each other; or
(b) who
are, or were, in a de facto relationship with each other; or
(c) who
have, or had, an intimate personal relationship with each other;
Director of Public Prosecutions means —
(a) the
Director of Public Prosecutions for the State; or
(b) the
officer in charge in the State of the Commonwealth Office of the Director of
Public Prosecutions,
as the case requires;
early release order means an early release order
made under the Sentence Administration Act 1995 1 or
Sentence Administration Act 2003 ;
family relationship has the meaning given in the
Restraining Orders Act 1997 section 4(1);
family violence offence means an offence where the
offender and the victim are in a designated family relationship with each
other at the time of the commission of the offence and the offence is —
(a) an
offence against the Restraining Orders Act 1997 section 61(1) or (1A); or
(b) an
offence against The Criminal Code section 221BD, 279, 280, 281, 283, 292, 293,
294, 297, 298, 300, 301, 304, 313, 317, 317A, 323, 324, 325, 326, 328, 332,
333, 338A, 338B, 338C, 338E or 444;
home detention condition means a home detention
condition imposed under clause 3 of Part D of Schedule 1;
interim control order has the meaning given in the
Commonwealth Criminal Code section 100.1(1);
judge of appeal has the meaning given in the
Supreme Court Act 1935 section 4(1);
judicial officer means any person empowered to
exercise jurisdiction in a court whether or not he is sitting as a court, and
includes a single justice and, where the context so requires, the Court of
Appeal exercising jurisdiction under this Act;
lock-up includes a place prescribed as a lock-up
for the purposes of the Court Security and Custodial Services Act 1999 ;
offence means any act, omission or conduct which
renders the person doing the act, making the omission or engaging in the
conduct liable to any punishment, and includes an alleged offence; but nothing
in this definition shall limit the operation of subsection (4);
person linked to terrorism means a person who
—
(a) is
charged with, or has been convicted of, a terrorism offence; or
(b) is
the subject of an interim control order or confirmed control order, or has
been the subject of a confirmed control order within the last 10 years;
prosecutor includes —
(a) in
the case of an offence charged in a prosecution notice, the prosecutor;
(b) in
the case of an offence charged in an indictment, the State or the
Commonwealth, as the case may be;
registrar of a court means —
(a) for
a court other than the Coroner’s Court of Western Australia, the
principal registrar, a registrar or a deputy registrar of the court; or
(b) for
the Coroner’s Court of Western Australia, a coroner’s registrar as
defined in the Coroners Act 1996 section 3;
serial family violence offender means a person
declared to be a serial family violence offender under the Sentencing Act 1995
section 124E;
serious offence means —
(a) an
offence against section 51(2a); and
(b) an
offence described in Schedule 2;
sexual offence means —
(a) an
offence described in Schedule 2 that is of a sexual nature; or
(b) an
offence under a written law that has been repealed, if the acts or omissions
alleged against the accused that constitute the offence under the repealed
written law would constitute an offence referred to in paragraph (a); or
(c) an
offence of attempting, or of conspiracy or incitement, to commit an offence
referred to in paragraph (a) or (b); or
(d) an
offence of becoming an accessory after the fact (as defined in The Criminal
Code section 10) to an offence referred to in paragraph (a) or (b);
surety and surety undertaking have the meanings
assigned to them by section 35;
surety approval officer means a person who is
authorised by section 36 to decide whether an applicant should be approved as
a surety;
terrorism offence means —
(a) an
offence against the Commonwealth Criminal Code Division 72 Subdivision A; or
(b) an
offence against the Commonwealth Criminal Code Division 80 Subdivision B; or
(c) an
offence against the Commonwealth Criminal Code Part 5.3, except an offence
against section 104.22, 104.27, 104.27A, 105.41 or 105.45; or
(d) an
offence against the Commonwealth Criminal Code Part 5.5; or
(e) an
offence against either of the following provisions of the Charter of the
United Nations Act 1945 (Commonwealth) —
(i)
Part 4; or
(ii)
Part 5, to the extent that it relates to the Charter of
the United Nations (Sanctions — Al-Qaida) Regulations 2008
(Commonwealth);
or
(f) an
offence against the Crimes (Foreign Incursions and Recruitment) Act 1978
(Commonwealth) (repealed); or
(g) an
offence against the Crimes (Internationally Protected Persons) Act 1976
(Commonwealth) section 8; or
(h) an
offence under a written law or a law of the Commonwealth, another State, a
Territory or another country, that substantially corresponds to an offence in
paragraphs (a) to (e) and (g); or
(i)
an offence of attempting, inciting or conspiring to
commit an offence referred to in paragraphs (a) to (h);
terrorist act has the meaning given in the
Terrorism (Commonwealth Powers) Act 2002 section 3;
terrorist intelligence information means
information relating to an actual or suspected terrorist act (whether in this
State or elsewhere) the disclosure of which could reasonably be expected
—
(a) to
prejudice national security; or
(b) to
endanger a person’s life or physical safety; or
(c) to
threaten significant damage to infrastructure or property; or
(d) to
prejudice a criminal investigation; or
(e) to
reveal intelligence-gathering methodologies, investigative techniques or
technologies or covert practices; or
(f) to
enable the discovery of the existence or identity of a confidential source of
information relevant to law enforcement;
trial means all proceedings for an offence between
—
(a) the
time when the accused is called upon to plead to the prosecution notice or the
indictment; and
(b) the
time when the accused is found not guilty or is sentenced.
(1A) For the purposes
of the definition of designated family relationship in subsection (1), an
intimate personal relationship exists between 2 persons (including persons of
the same sex) if —
(a) the
persons are engaged to be married to each other, including a betrothal under
cultural or religious tradition; or
(b) the
persons date each other, or have a romantic involvement with each other,
whether or not a sexual relationship is involved.
(1B) In deciding
whether an intimate personal relationship exists under subsection (1A)(b), the
following may be taken into account —
(a) the
circumstances of the relationship, including, for example, the level of trust
and commitment;
(b) the
length of time the relationship has existed;
(c) the
frequency of contact between the persons;
(d) the
level of intimacy between the persons.
(2) A reference in
this Act —
(a) to a
power to grant bail includes a reference to a power to refuse bail;
(b) to a
grant of bail includes a reference to a grant of bail by the exercise of a
power in section 31(2).
(3) Where in this Act
there is a reference to a requirement that an accused appear in court, the
reference is to a requirement, unless a contrary intention appears, that the
accused —
(a)
surrender himself into the custody of the court or, in the case of a bail
undertaking, of the court specified therein, or of such person as the court
may direct, to be dealt with according to law; and
(b)
submit himself to a search of his person and any property then in his
possession (which is hereby authorised) and allow to be taken from him, to be
dealt with according to the relevant law and procedures, anything so found;
and
(c)
remain in custody until authorised to be released therefrom.
(4) If a person is
arrested under a warrant issued —
(a)
under section 50, 79, 84E or 129 of the Sentencing Act 1995 in connection
with a possible breach of a conditional release order, a sentence of suspended
imprisonment or conditional suspended imprisonment, or a community order
imposed under that Act; or
(b)
under section 43 of the Young Offenders Act 1994 in respect of an alleged
breach of a youth community based order, an intensive youth supervision order
or a conditional release order made under that Act,
then —
(c) the
person is to be taken as having been arrested and to be in custody awaiting an
appearance in court for the offence for which the sentence was imposed; and
(d) the
first appearance in court after the arrest is to be taken, for the purposes of
sections 5(1) and 8(1) and clause 1 of Part A and clause 7 of Part C of
Schedule 1, to be the initial appearance for that offence; and
(e) the
proceedings following the arrest are to be taken to be proceedings for that
offence and to be a trial for the purpose of the definition in subsection (1)
of trial .
(5) The CEO
(corrections) may by writing signed by him delegate to any officer of the
department of which he is the chief executive officer any function he has
under this Act as an authorised community services officer.
[Section 3 amended: No. 74 of 1984 s. 3; No. 15 of
1988 s. 4; No. 49 of 1988 s. 78; No. 61 of 1990 s. 4; No. 31 of 1993 s. 6; No.
45 of 1993 s. 4 and 12; No. 78 of 1995 s. 7; No. 57 of 1997 s. 21(1); No. 54
of 1998 s. 4 and 14; No. 47 of 1999 s. 7; No. 50 of 2003 s. 29(3); No. 65 of
2003 s. 121(2); No. 27 of 2004 s. 13(2); No. 34 of 2004 Sch. 2 cl. 3(2); No.
45 of 2004 s. 28(4); No. 59 of 2004 s. 141; No. 84 of 2004 s. 11, 82 and
83(2); No. 65 of 2006 s. 51 and 53; No. 6 of 2008 s. 4 and 24(2); No. 46 of
2011 s. 25; No. 20 of 2013 s. 22; No. 15 of 2019 s. 4; No. 13 of 2020 s. 22;
No. 30 of 2020 s. 39; No. 29 of 2022 s. 4.]
[Section 3. Modifications to be applied in order
to give effect to Cross-border Justice Act 2008: section altered 1 Nov 2009.
See endnote 1M; amended: No. 42 of 2009 s. 12.]
[ 3A. Deleted: No. 20 of 2013 s. 23.]