Western Australian Current Acts

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CRIMINAL PROCEDURE ACT 2004 - SECT 35

35 .         Initial disclosure by prosecutor

        (1)         In this section, unless the contrary intention appears —

        confessional material of an accused charged with an offence, means —

            (a)         any written statement signed by the accused;

            (b)         any written record of interview with the accused (signed or unsigned by the accused);

            (c)         any interview (as that term is defined in the Criminal Investigation Act 2006 section 115) that has been electronically recorded,

        that is relevant to the charge and that is in the possession of the organisation that investigated the offence;

        police prosecutor means a prosecutor who is a member of the Police Force or who is employed in the department principally assisting in the administration of the Police Act 1892 ;

        prescribed simple offence means a simple offence that is prescribed to be a prescribed simple offence for the purposes of this section;

        serve an accused, means to serve the accused in accordance with Schedule 2 clause 2, 3 or 4.

        (2)         The operation of this section is subject to —

            (a)         any order made under section 138; and

            (b)         the Sentence Administration Act 2003 section 119C(2)(a); and

            (c)         the Young Offenders Act 1994 section 16D(2)(a).

        (3)         This section does not affect the operation of the Criminal Investigation Act 2006 section 117.

        (4)         When or as soon as practicable after a prosecution notice that contains one or more indictable charges is served on an accused, the prosecutor must serve the accused with the following —

            (a)         a written statement of the material facts of each such charge;

            (b)         an approved notice of the existence or non-existence, as the case may be, of any confessional material of the accused that is relevant to each such charge;

            (c)         an approved notice that the accused does or does not have a criminal record, as the case may be;

            (d)         any document that is prescribed.

        (5)         When or as soon as practicable after a prosecution notice that contains one or more charges of prescribed simple offences is served on an accused, the prosecutor must serve the accused with the following —

            (a)         a written statement of the material facts of each such charge;

            (b)         an approved notice of the existence or non-existence, as the case may be, of any confessional material of the accused that is relevant to each such charge;

            (c)         if the prosecutor is a police prosecutor, an approved notice that the accused does or does not have a criminal record, as the case may be;

            (d)         if the prosecutor is not a police prosecutor and intends to tender any of the accused’s criminal record to the court, an approved notice of the criminal record and of the prosecutor’s intention;

            (e)         any document that is prescribed.

        (6)         When or as soon as practicable after a prosecution notice that contains one or more charges of simple offences that are not prescribed simple offences is served on an accused, the prosecutor must serve the accused with the following —

            (a)         if the prosecutor is a police prosecutor, an approved notice that the accused does or does not have a criminal record, as the case may be;

            (b)         if the prosecutor is not a police prosecutor and intends to tender any of the accused’s criminal record to the court, an approved notice of the criminal record and of the prosecutor’s intention;

            (c)         any document that is prescribed.

        (7)         An approved notice advising an accused of the existence of any confessional material of the accused must also advise the accused of the effect of subsection (11).

        (8)         An approved notice advising an accused that the accused does have a criminal record must also advise the accused of the effects of subsections (11) and (12) and section 168.

        (9)         The material referred to in this section must be served before or at the time of the accused’s first appearance in the court in relation to the prosecution notice unless it is impracticable to do so.

        (10)         If material is not served in accordance with subsection (9) in respect of a charge, the court may —

            (a)         adjourn the charge to a new court date that allows a reasonable time for the prosecutor to serve the material; and

            (b)         order the prosecutor to serve the material before that new court date; and

            (c)         if the prosecutor does not obey the order, adjourn the charge again or dismiss it for want of prosecution.

        (11)         As soon as practicable after an accused is served with notice —

            (a)         of the existence of confessional material of the accused that is relevant to a charge; or

            (b)         that the accused has a criminal record,

                the prosecutor must make available a copy of the material or the record or both (as the case may be) to the accused or the accused’s legal practitioner.

        (12)         If before or at an accused’s first appearance in court in relation to a prosecution notice the accused requests the prosecutor to give the accused a copy of the accused’s criminal record, the prosecutor must, if practicable, obey the request before or at the appearance.

        (13)         If the prosecutor serves the accused with a written statement of the material facts of a charge, the prosecutor may serve the accused with another version of the statement —

            (a)         if the charge —

                  (i)         is an either way charge that is to be dealt with summarily; or

                  (ii)         is of a simple offence,

                at any time before the accused is asked to plead to the charge by a court of summary jurisdiction or, with the court’s leave, at any time after a plea of not guilty by the accused; or

            (b)         in any other case — at any time before the accused is asked to plead to the charge by the court to which the accused is committed for sentence or trial, irrespective of whether the accused has pleaded before a court of summary jurisdiction.

        [Section 35 amended: No. 59 of 2006 s. 43; No. 21 of 2008 s. 657(5); No. 14 of 2022 s. 42.]



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