(i) The maximum term of imprisonment (if any) that can be ... · Penal Institutions Act 1954 or to...

COMMUNITY MAGISTRATES BILL

EXPLANATORY NOTE

General Policy StatementThis Bill establishes a new class ofjudicial officer, to be known as a CommunityMagistrate. Community Magistrates will exercise jurisdiction in District Courts inrespect of summary criminal matters. That jurisdiction will include-

(a) Jrisdiction to deal with matters currently handled by Justices of the Peace,such as-

(i) Defended and non-defended rninor fine-only offences:(ii) Applications for bail and remands:(iii) Preliminary hearings of indictable offences:

(b)Jurisdiction to impose sentences (other than imprisonment) on persons whohave been found guilty or have pleaded guilty to certain summaryoffences. Those summary offences are summary offences in respect ofwhich-

(i) The maximum term of imprisonment (if any) that can be imposeddoes not exceed 3 months; ana

(ii) The maximum fine that can be imposed does not exceed $5,000:(c)Jurisdiction to enforce fines (other than by imprisonment) under section 88

of the Summary Proceedings Act 1957.Every party to any proceedings that are heard by a Court presided over by a

Community Magistrate or 2 or more Community Magistrates may appeal to aDistrict Court presided over by a District Court Judge. Any determination of theDistrict Court on any question of law that arises on any such appeal may, with theleave of the District Court, be the subject of an appeal to the High Court. If theDistrict Court refuses to grant leave to appeal to the High Court, the High Courtmay grant special leave to appeal. The decision of the High Court on any suchquestion of law and on any such application for leave to appeal will be final.

The exercise by Community Magistrates of jurisdiction in respect of minorcriminal matters in the District Court is intended-

C to increase community involvement in the justice system; and• to relieve pressure on t:he District Court by reducin delays and backlogs; and• to target the expertise of District Court Judges eftectively so that their skills

will be reserved for those cases that require it.Community Magistrates will be appointed by the Governor-General, an the

advice of the Minister ofJustice.

Price Code: K

No. 57-1

11

Community Magistrates may be dismissed only for neglect of duty, inability,disability affecting performance of duty, bankruptcy, or misconduct. They mustretire from office on attaining the age of 68 years.

Provision is made for the appointment of a Chief Community Magistrate.Each of the 6 Parts of the Bill is to come into force on a date to be appointed by

the Governor-General by Order in Council. Provision is made for commencementby Order in Council as it is not clear how long it will take to attend to thesubstantial administrative matters that will need to be attended to before

Community Magistrates will be able to sit in District Courts.

Clause by Clause AnalysisPART 1

AMENDMENTS TO DISTRICT COURTS ACT 1947

This Part, which comes into force on a date to be appointed by the Governor-General by Order in Council, provides for the appointment under the DistrictCourts Act 1947 of Community Magistrates.

Clause 3 efFects an amendment to section 2 of the District Courts Act 1947 that

is consequential on the appointment of Community Magistrates.

Clause 4 inserts into the District Courts Act 1947 new sections 1 1,4 to 1 16.

The new section ll,4 authorises the Governor-General to appoint CommunityMagistrates on the advice of the Minister ofJustice.

A person is qualified for appointment as a Community Magistrate only if thatperson-

(a) Is capable, by reason of that person's personal q,15*lities, experience, andskills, of performing the functions of a Community Magistrate; and

(b) Has been recommended for appointment in accordance with a selectionprocess prescribed by regulations made under section 123 of the DistrictCourts Act 1947.

The new section 118 (1) provides that, subject to subsection (2), a CommunityMagistrate rnay hold any other offtce and engage in any other employment orcalling that, in the opinion of the Governor-General, will not impair the properdischarge of the functions of a Community Magistrate.

Subsection (2) provides that no Community Magistrate may--(a) Hold a current practising certificate under the Law Practitioners Act 1982;

or

(b) Hold office as a member of the Police or as a traffic officer; or(c) Hold office as an employee of the Public Service who is employed-

(i) In the Ministry ofJustice; or(ii) In the Department of Corrections; or(iii) In the head office of the Department for Courts; or(iv) As an officer of the High Court or of a District Court; or

(d) Be a party to a management contract entered into under section 4A of thePenal Institutions Act 1954 or to a security contract entered into undersection 36G of that Act; or

(e) Be a security officer within the meaning of section 2 (1) of the PenalInstitutions Act 1954.

The new section llc provides that Community Magistrates are to carry out suchfunctions and powers as are conferred on Community Magistrates-

(a) By the Summary Proceedings Act 1957; or(b) By the Summary Offences Act 1981; or(c) By any other enactment.Each Community Magistrate is to sit in such Courts at such times as the Chief

District Court Judge may from time to time direct after consultation with-

111

(a) The Chief Community Magistrate; or(b) If the office of Chief Community Magistrate is vacant, such other

Community Magistrate as the Chief District Court Judge thinks fit.The summary criminal jurisdiction of Community Magistrates under the

Summary Proceedings Act 1957, their power to conduct preliminary hearings ofindictable offences, and their jurisdiction to enforce fines are dealt with in detail inPart 2 of the Bill.

A number of other Acts are amended by this Bill to confer additional powerson Community Magistrates. Most of these additional powers are powers relatedto the criminal jurisdiction of Community Magistrates. These additional powersinclude the same powers as Justices have in relation to the issue of searchwarrants.

Powers not conferred on Community Magistrates include the powers thatJustices have under-

(a) The Chattels Transfer Act 1924:(b) The Coroners Act 1988:(c) The Distress and Replevin Act 1908:(d) The Flectoral Act 1993:(e) The Land Transfer Act 1952:(f) The Local Elections and Polls Act 1976:(g) The Marriage Act 1955:(h) The Partnership Act 1908:(i) The Penal Institutions Act 1954:(j) Other miscellaneous provisions such as:

(i) Section 12 (6) of the Animals Protection Act 1960 (a provision thatgives Justices the power to authorise the destruction of any impoundedanimal that is so diseased, injured, or disabled that it is ina state ofcontinual suffering):

(ii) Section 49 (1) of the Burial and Cremation Act 1964 (a provisionthat authorises a Justice to order free burial or cremation of a body of apoor person):

(iii) Section 54 of the Burial and Cremation Act 1964 (a provision thatrequires a Justice to be notified of a burial where the burial of a bodytakes place in a place in which the burial of that body is not permitted):

(iv) Section 17 (2) of the Civil Defence Act 1962 (a provision thatauthorises Justices to swear in civil defence police):

(v) Section 17 (1) (a) of the District Courts Act 1947 (a provision thatauthorises a Justice to take the oath of a bailiff):

(vi) Section 162 (2) of the Education Act 1964 (a provision thatauthorises a Justice to take an oath or aflirmation of allegiance made bya teacher):

(vii) Section 33 (2) of the Fire Service Act 1975 (a provision thatauthorises Justices to swear in volunteer fire police):

(viii) Section 256 of the Harbours Act 1950 (a provision that authorisesJustices to appoint and dismiss special constables):

(ix) Rule 521 of the High Court Rules (a provision that authorisesJustices to take afhdavits in New Zealand in certain circumstances):

(x) Section 52 of the Impounding Act 1955 (a provision that givesJustices power to authorise the destruction of suffering or worthlessanimals):

(xi) Section 25 (3) of the Land Act 1948 (a provision that authorisesJustices to issue warrants for the recovery of possession of Crown land):

(xii) Section 45 (3) of the Land Drainage Act 1908 (a provision thatauthorises Justices to order collectors of rates to pay over money):

1V

(xiii) Section 103 (1) of the Maritime Transport Act 1994 (a provisionthat authorises Justices to act in the absence of a Receiver of Wreck):

(xiv) Section 5 (3) of the Naval and Victii;Illing Stores Act 1908 (aprovision that gives Justices jurisdiction in respect of the offence ofreceiving marked naval or victualling stores):

(xv) A number of the provisions of the Pawnbrokers Act 1908(including those that authorise Justices to grant pawnbrokers' licences):

(xvi) Section 37 of the Police Act 1958 (a provision that authorisesJustices to take the oaths of constables):

(xvii) Section 117 (2) of the River Boards Act 1908 (a provision thatauthorises Justices to commit to prison for a period not exceeding 6months persons refusing to deliver up money and papers):

(xviii) Section 118 (3) of the Soil Conservation and Rivers Control Act1941 (a provision that authorises Justices to order collectors of rates topay over money):

(xix) Section 35 (7) of the Toxic Substances Act 1979 (a provision thatauthorises Justices to give certificates relating to applicants for licences):

(xx) Section 61 (3) (a) of the Wildlife Act 1953 (a provision thatempowers Justices to require persons to produce licences to hunt or killwildlife).

The new section 110 provides for the appointment of a Chief CommunityMagistrate. No person may be appointed as Chief Community Magistrate unlessthat person has held a plactising certicate as a barrister or solicitor for at least5 years.

The new section 11£ sets out the functions of the Chief Community Magistrate.The new section llF relates to the tenure of office of Community Magistrates.Subsection (1) provides that every Community Magistrate must retire from

office on attaining the age of 68 years.Subsection (2) provides that the Governor-General may remove a Community

Ma*trate from office for neglect of duty, inability, disability affectingpertormance ofduty, bankruptcy, or misconduct, proved to the satisfaction of theGovernor-General.

Subsection 63) provides that any Community Magistrate may at any time resignthe office of Community Magistrate by notice in writing addressed to the MinisterofJustice.

The new section 116 relates to the remuneration and allowances of CommunityMagistrates.

Clauses 5 to 8 make consequential amendments related to the appointment ofCommunity Magistrates.

PART 2

AMENDMENTS TO SUMMARY PROCEEDINGS ACT 1957

This Part, which comes into force on a date to be appointed by the Governor-General by Order in Council, amends the Summary Proceedings Act 1957. Theprincipal purpose of the amendments is to confer on Community Magistrates-

(a) The power to exercise, in certain cases, the summary criminaljurisdiction ofa District Court:

(b) The power to conduct preliminary hearings of indictable offences:(c) The power to enforce fines (other than by imprisonment) under section 88 of

the Summary Proceedings Act 1957.

Clause 10 repeats sections 4 and 5 of the Summary Proceedings Act 1957, andsubstitutes 2 new sections. The principal purpose of the substitution is to enable aDistrict Court presided over by one or more Community Magistrates-

(a) To exercise, in certain cases, the summary criminal jurisdiction of a DistrictCourt; and

(b) To conduct preliminary hearings of indictable offences.

Clause 11 repeals section 9 of the Summary Proceedings Act 1957, andsubstitutes new sections 9 to 96.

The new sections 9 and 9,1 re-enact existing provisions relating to the jurisdictionof District Court Judges and Justices in respect of summary offences.

The new section 98 relates to the jurisdiction of Community Magistrates inrespect of summary offences.

Subsection (1) provides that a Court presided over by one CommunityMagistrate has jurisdiction in respect of a summary offence in the following cases,and (except as provided in section 9c) in no other case, namely:

(a) In any case where, under section 9,4 (1), a Court presided over by 2 or moreJustices has jurisdiction in respect of the summary offence:

(b) In any case where, under section 9,1 (2), a Court presided over by any oneJustice has jurisdiction in respect of the summary offence:

(c) In any case where the enactment creating the offence expressly providesthat the jurisdiction may be exercised by a Court presided over by oneCommunity Magistrate or by one or more Community Magistrates:

(d) In any case where by any enactment jurisdiction is expressly given to oneCommunity Magistrate or one or more Community Magistrates.

Subsection (2) provides that a Court presided over by 2 or more CommunityMagistrates has the same jurisdiction in respect of a summary offence as a Courtpresided over by one Community Magistrate.

The new section 90 confers on Community Magistrates the jurisdiction toimpose sentences in respect of certain summary offences. The section applies toany summary offence in respect of which-

(a) The maximum term of imprisonment (if any) that can be imposed does notexceed 3 months; and

(b) The maximum fine that can be imposed does not exceed $5,000.Subsection (2) specifies in detail the sentences that a Court presided over by one

or more Community Magistrates may impose, in accordance with the CriminalJustice Act 1985, on any person who is found guilty of any such offence or pleadsguilty to any such offence. Those sentences do not include a sentence ofimpnsonment.

Subsection (3) provides that no Court presided over by one or more CommunityMagistrates may impose a sentence of imprisonment on any person.

The new section 9D provides that, in the case of certain offences against theTransport Act 1962, a Court presided over by one or more CommunityMagistrates may make, and in some cases must make, under that Act an orderimposin a penalty on the offender. In most of those cases the penalty is an orderdisqualitying the offender from holding or obtaining a driver's licence for a periodspecified by the Court.

The new section 9£ provides that a Court presided over by one or moreCommunity Magistrates has, in exercising any power conferred on it by section 9cor section 98,-

(a) Power to make, under section 138 of the Criminal Justice Act 1985 (whichrelates to the power to clear the Court and to forbid reports ofproceedings), orders of any kind described in subsection (2) of thatsection:

(b) Power to make orders under section 140 of the Criminal Justice Act 1985(which relates to the power to prohibit the publication of names andother particulars):

V

V1

(c) All the powers and processes that a Court has under the Criminal Justice Act1985 or the Transport Act 1962 for the purpose of perfecting, or givingfull effect to, any sentence imposed or order made under any of theprovisions of those Acts referred to in section 90 or section 9.D.

The new section 9F gives a Court presided over by one or more CommunityMagistrates power to decline jurisdiction in respect of a summary offence and torefer the case to a Court presided over by a District Court Judge.

The new section 96 provides that a District Court Judge may, in any case inwhich a District Court Judge considers it appropriate, order that any matterbefore a Court presided over by one or more Community Magistrates betransferred to a Court presided over by a District Court Judge.

Clauses 12 to 28 amend a number of provisions of the Summary ProceedingsAct 1957 so as to enable Community Magistrates to exercise the jurisdictionconferred on them in respect of summary offences. The powers so conferredinclude-

(a) The power to issue a summons to the defendant:(b) The power to issue a warrant to arrest the defendant and bring the

defendant before a Court:

(c) The power to issue a summons or warrant for the attendance of a witness:(d) The power to remand a defendant in custody:(e) The power to release a defendant on bail.

Clause 29 amends section 88 of the Summary Proceedings Act 1957.

Clause 30 repeals section 89, and substitutes a new section 89. The effect of theamendments and the substitution made by clauses 29 and 30 is to confer onCommunity Magistrates jurisdiction to enforce fines (other than byimprisonment).

The powers that a Community Magistrate may exercise are restricted byprovisions of section 88.

The new section 88 6310, provides that no Community Magistrate may direct,under section 88 (3) (b), the issue of a warrant of commitment or impose, undersection 88 (3) (e), a sentence of corrective training; but, in any case where aCommunity Magistrate considers the issue of such a warrant or the imposition ofsuch a sentence to be appropriate, a Community Magistrate must refer thematter to a District Court judge, in which case sections 45 to 59 of the SummaryProceedings Act 1957 (which relate to adjournments and bail), so far as they areapplicable and with the necessary modifications, will apply.

Clauses 31 effects consequential amendments to section 106E of the SummaryProceedings Act 1957.

Clause 32 inserts a new section 114,1 into the Summary Proceedings Act 1957.The new section relates to appeals from decisions of Community Magistrates.

Subsection (1) of the new section provides that either party to any proceedingsthat are heard by a Court presided over by a Community Magistrate or 2 or moreCommunity Magistrates has, subject to subsection (2), the same rights of appealunder sections 89, 107, 115, 115A, 1158, 115£, and 1151) as the party would havehad if the Court that heard the proceedings had been presided over by a DistrictCourt Judge.

Subsection (2) provides that every appeal brought by a party to proceedings towhich subsection (1) applies is to be an appeal to a District Court presided over bya District Court Judge.

Vll

Subsection (3) effects the necessary modifications to Part IV of the SummaryProceedings Act 1957. The modifications are set out in a new Schedule 2A to thatAct.

Clause 33 inserts a new section 1148 into the Summary Proceedings Act 1957.The new section provides that either party to proceedings to which an appealunder section 114,4 (1) relates (ie, an appeal to a Court presided over by a DistrictCourt Judge) rnay, with the leave of the District Court, appeal to the High Courtagainst any determination of the District Court on a question of law arising in theappeal under section 114,i (1). If the District Court refuses to grant leave to appealto the High Court, the High Court may grant special leave to appeal. The decisionof the High Court on any such question of law and on any such application forleave to appeal will be final.

Clause 34 amends section 1131) of the Summary ProceedinEs Act 1957 (whichrelates to the right of appeal against decisions relating to bail) so as to effect anamendment that is consequential on the amendment made to section 5OA (1) ofthat Act by section 8 (2) (a) of the Summary Proceedings Amendment Act 1995.

Clauses 35 to 51 effect consequential amendments to Part V of the SummaryProceedings Act 1957, which Part relates to the preliminary hearing of indictableoffences.

Clauses 52 to 57 effect consequential amendments to Part VII of the SummaryProceedings Act 1957. The amendments have the effect of giving CommunityMagistrates the same protection and indemnities as Justices.

Clause 38 amends section 198 of the Sumrnary Proceedings Act 1957 so as toconfer on Community Magistrates the power to issue search warrants under thatsection.

Clause 59 amends section 202 of the Summary Proceedings Act 1957 so that anaffidavit required for the purposes of that Act may be sworn or affirmed beforeany Community Magistrate.

Clause 60 amends section 206 of the Summary Proceedings Act 1957 so that aCommunity Masistrate will have, in the case of contempt of Court, the samepowers as a Justice.

Clauses 61 and 62 effect consequential amendments.

Clause 63 inserts into the Summary Proceedings Act 1957 a new Schedule 24.The new schedule sets out the modifications to Part IV of the SummaryProceedings Act 1957 that will apply when an appeal is made from a DistrictCourt presided over by a Community Magistrate or Community Magistrates to aDistrict Court presided over by a District Court Judge.

PART 3

AMENDMENTS TO CRIMINAL JusTIcE AcT 1985This Part, which comes into force on a date to be appointed by the Governor-

General by Order in Council, amends the Criminal Justice Act 1985.

Clause 65 inserts a new section 7,4 into the Criminal Justice Act 1985.Subsection (1) of the new section provides that no District Court presided over

by one or more Community Magistrates may, in exercising the powers that it hasunder the CriminalJustice Act 1985 by virtue of thejurisdiction conferred on sucha Court by the Summary Proceedings Act 1957 or by any other Act, sentence anyoffender, in any circumstances, to a term of imprisonment.

V111

Subsection (2) of the new section provides that in any case where a DistrictCourt presided over by one or more Community Magistrates has power, by virtueof the jurisdiction conferred on it by the Summary Proceedings Act 1957 or anyother Act, to sentence an offender but considers it more appropriate that theoffender be sentenced to a term of imprisonment, that Court shall declinejurisdiction in respect of that offender and refer the sentencing of that offender toa District Court presided over by a District Court Judge.

The new subsection (3) provides that where the sentencing of an offender isreferred, under subsection (2), to a District Court presided over by a District CourtJudge, that Court may impose any sentence that Court considers appropriate.

Clause 66 effects a consequential amendment.

Clause 67 amends section 26 (3) of the Criminal Justice Act 1985 (which relatesto the general discretion to impose flnes where no maximum fme is prescribed).The effect of the amendment is to ensure that the maximum fine that a Court

presided over by a Community Magistrate may impose under that section is a fineof $400. A Court presided over by a Justice is limited to the same amount.

Clauses 68 and 69 effect consequential amendments.

PART 4

AMENDMENrS TO CRIMES AcT 1961

This Part, which comes into force on a date to be appointed by the Governor-General by Order in Council, amends the Crimes Act 1961.

Clauses 71 to 77 effect amendments to the Crimes Act 1961 that are

consequential on the jurisdiction conferred on Community Magistrates.

PART 5

AMENDMENTS TO SUMMARY OP'FENCES Acr 1981

This Part, which comes into force on a date to be appointed by the Governor-General by Order in Council, amends the Summary Offences Act 1981.

Clause 79 effects consequential amendments to section 18 of the SummaryOffences Act 1981 (which relates to the imitation of Court documents).

Clause 80 amends section 40 (2) of the Summary Offences Act 1981 so that aDistrict Court presided over by one or more Community Magistrates will havejurisdiction in respect of offences against sections 4, 7, 17 to 20,22,25,26, and 30to 38 of that Act.

Those offences are as follows:

(a) Section 4 (offensive behaviour or language):(b) Section 7 (fighting in public place):(c) Section 17 (publishing false notice of birth, marriage, or death):(d) Section 18 (rnitation of Court documents):(e) Section 19 (imitation of official documents):(f) Section 20 (false claim of qualications):(g) Section 22 (obstructing public way):(h) Section 25 (advertising reward for stolen property):(i) Section 26 (soliciting):(j) Section 30 (peeping or peering into dwellinghouse):(k) Section 81 (trespass on a ship):(1) Section 32 (excreting in public place):(m) Section 33 (billsticking, defacing, etc):(n) Section 34 (throwing stones):(o) Section 35 (setting off or throwing fireworks):

1X

(p) Section 36 (lighting fires):(q) Section 37 (disturbing meetings):(r) Section 38 (drinking in public place).

PART 6

AMENDMENTS TO OATHS AND DECLARATIONS ACT 1957

This Part, which comes into force on a date to be appointed by the Governor-General by Order in Council, amends the Oaths and Declarations Act 1957.

Clause 82 amends section 6 (3) of the Oaths and Declarations Act 1957 (whichrelates to the unlawful administration of oaths).

Clause 83 amends the Second Schedule of the Oaths and Declarations Act 1957

so that Community Magistrates will be required to take both the Oath ofAllegiance and the Judicial Oath.

Community Magistrates are not authorised to take statutory declarations underthe Oaths and Declarations Act 1957.

SCHEDULES

Schedule 1 sets out the consequential amendments to other Acts.Schedule 2 contains the new Schedule 2,4 of the Summary Proceedings Act 1957.

Division into 6 Bills

It is intended to divide this Bill, at its committee of the whole stage, into 6 Billswith-

(a) Part 1 and Schedule 1 becoming a District Courts Amendment Bill:(b) Part 2 and Schedule 2 becoming a Summary Proceedings Amendment Bill:(c) Part 3 becoming a Criminal Justice Amendment Bill:(d) Part 4 becoming a Crimes Amendment Bill:(e) Part 5 becoming a Summary Offences Amendment Bill:(f) Part 6 becoming an Oaths and Declarations Amendment Bill.

Title

1. Short Title

Hon DAM Graham

COMMUNITY MAGISTRATES

PART 1

AMENDMENTS TO DISTRICT COURTS AG· 1947

2. Part 1 to be part of District Courts Act1947

3. Interpretation4. New heading and sections inserted

Community Magistrates1 lA. Appointment of Community

Magistrates118. Right to hold other office and

to engage in other

employmentllc. Functtons and powers of Com-

munity Magistrates1 ID. Chief Community Magistrate11 E. Functions of Chief Community

Magistrate1 1 F. Tenure of ofhce

116. Remuneration and allowances

of Community Magistrates5. Place of sittings6. Times of sittings7. Persons who may take affidavits, etc8. Consequential amendments

PART 2

AMENDMENTS TO SUMMARY PROCEEDINGS ACT1957

9. Part 2 to be part of Summary Proceed-ings Act 1957

10. New sections substituted

4. Summary criminal jurisdiction ofCourt

5 Jurisdiction to conduct prelimi-nary hearing of indictableoffences


9. Jurisdiction of District CourtJudges in respect of sum-mary offences

9A. Jurisdiction ofJustices in respectof summary offences

ANALYSIS

No. 57-1

93. Jurisdiction of Community Magistrates in respect or sum-mary offences

9c.Jurisdiction of Community Mag·istrates to impose sentencesin respect of certain sum-rnary ofTences

9D. Power to impose penalties provided for in Transport Act1962

9E. Ancillary powers under Crimi-nal Justice Act 1985 andTransport Act 1962

97. Power or Community Magis·trates to decline jurisdiction

96. Power to transfer matter to

Court presided over by Dis-trict Court Judge

12. Issue of summons or warrant to arrest

defendant

13. Issue of summons or warrant for attend-

ance of witness

14. Summary procedure for minor offences15. Withdrawal of warrant

16. Mode of service of summons on defen-dant

17. Order for taking evidence of defencewitness at distance

18. Order for taking evidence of personabout to leave country

19. Place of hearing of information20. Power to adjourn21. New sections substituted

46. Dealing with defendant onadjournrnent

47. Wamnt for detention of defen-

dant rernanded in custody48. Defendant, if bailable as of

right, to be brought beforeCourt on request

49. Conditions of bail

50. Release of defendant grantedbail

SOA. Variation of conditions of bail

51. Defendant may be admitted tobail by constable in certaincases

2 Community Magistrates


53. Defendant on bail may bearrested without warrant in

certain circumstances

54. Failure to answer bail

55. Arrest of defendant who does

not attend hearing23. Effect on bond of attendance or non-

attendance of person bailed by con-stable

24. Certification of non-performance of con-dition of bail bond

25. Defendant's right to elect trial by jurywhere offence punishable by morethan 8 months' imprisonment

26. Criminal Records

27. District Court Judge or Justice or Com-munity Magistrate may grant rehear-ing

28. Power of the Court to amend defectivesentences

29. Action where flne remains unpaid30. Rights of representation and appeal31. Restriction on imprisonment32. Appeals from decisions of Community

Magistrates33. Appeal to High Court on question of law34. Right of appeal against decisions relat-

ing to bail35. Proceedings under Part V36. Issue of summons to or warrant to

arrest defendant

87. Issue of warrant where defendant who

has been summoned does not attend

38. Application of provisions of Part II39. Defendant may plead guilty before or

during preliminary hearing40. Place of preliminary hearing41. Depositions of witnesses42. Statement of defendant who is unrepre-

sented

48. Witnesses on behalf of defendant to be

examined if defendant wishes

44. If evidence sufficient defendant may becomrnitted for trial or sentence

45. Release on bail of defendant committed

for trial or sentence

46. Power to take statement of person dan-gerously ill

47, Evidence of statement made by persondangerously ill

48. Provision for person in custody to bepresent at taking of statement

49. Notice to witnesses to attend at HighCourt

50. When deposition or written statementmay be read in evidence

51. Witness about to leave New Zealand

may be arrested52. Part VII amended

53. No action against District Court Judge,justice, or Community Magistrateunless act in excess of Jurisdiction orwithout jurisdiction

54. No action against District Court Judge,Justice, or Cornmunity Magistrate tobe brought in District Court

55. Onus of proof56. Plaintiff may be ordered to give security

for costs

57. Indemnity to Justice or CommunityMagistrate

58. Search warrants

59. Who may take affidavit60. Contempt of Court61. Payment and recovery of fees62. Second Schedule amended63. New Schedule 2A inserted

PART 3

AMENDMENTS TO CRIMINAL JusTIcE Acr 198564. Part 3 to be part of Cbminal Justice Act

1985

65. District Court presided over by Commu-nity Mastrate or Magistrates pre-cluded trom imposing sentence ofimprisonment

66. Power of adjournment for inquiries as tosuitable punishment

67. General discretion to impose fines68. Appeal against finding of disability69. Appeal against acquittal on account of

insanity

PART 4

AMENDMENTS TO CRIMES Acr 1961

70. Part 4 to be part of Crimes Act 196171. Execution of sentence, process, or war-

rant

72. Sentence or process without jurisdiction73. Interpretation74. Bench warrant

75. Record of proceedings76. Evidence of former trial

77. Second Schedule amended

PART 5

AMENDMENTS TO SUMMARY OFFENCES Acr1981

78. Part 5 to be part of Summary OffencesAct 1981

79. Imitation of Court documents

80. Jurisdiction

PART 6

AMENDMENTS TO OATHS AND DECLARATIONS

Acr 1957

81. Part 6 to be part of Oaths and Declara-tions Act 1957

82. Unlawful administration of oaths

8 3. Persons required to take judicial oath

SCHEDULES

Schedule 1

Enactments Amended

Schedule 2

New Schedule 2A of Summary ProceedingsAct 1957

Community Magistrates

A BILL INTITULED

An Act to provide for the appointment of judicialofficers, to be known as Community Magistrates, andto specify their jurisdiction, functions, and powers

5 BE IT ENACTED by the Parliament of New Zealand as follows:

1. Short Title-This Act may be cited as the CommunityMagistrates Act 1997.

PART 1

AMENDMENTS TO DISTRICT COURTS ACT 1947

10 2. Part 1 to be part of District Courts Act 1947-(1) ThisPart is part of the District Courts Act 1947" (in this Partreferred to as the principal Act).

(2) This Part and Schedule 1 come into force on a date to beappointed by the Governor-General by Order in Council.

*R.S. Vol. 28, p. 57Amendments: 1994, No. 29; 1995, No. 65; 1996, No. 119

15 3. Interpretation-Section 2 (1) of the principal Act isamended by inserting, after the definition of the term "bailiff",the following definition:

Community Magistrate' means a CommunityMagistrate appointed under section 11A; and includes

20 the Chief Community Magistrate:".

4. New heading and sections inserted-The principal Actis amended by inserting, after section 11, the following headingand sections:

"Community Magistrates25 "ilk. Appointment of Community Magistrates-(1) The

Governor-General may from time to time, by warrant underthe Governor-General's hand and on the advice of the Minister

Of Justice, appoint qualified persons to be CommunityMagistrates.

30 "(2) A person is qualified for appointment as a CommunityMa-istrate only if that person-

"(a) Is capable, by reason of that person's personal qualities,experience, and skills, oi performing the functionsof a Community Mastrate; and

35 "(b) Has been recommended for appointment in accordancewith a selection process prescribed by regulationsmade under section 123.

Cf. 1988, No. 110, s. 7 (1), (2)

3


"118. Right to hold other o ffice and to engage in otheremployment-(1) Subject to subsection (2), a CommunityMagistrate may-

"(a) Hold any other office; and"(b) Engage in any other employment or calling- 5

that, in the opinion of the Governor-General, will not impairtheproper discharge of the functions of a CommunityMagistrate.

"(2) No Community Magistrate may-"(a) Hold a current practising certificate under the Law 10

Practitioners Act 1982; or

"(b) Hold office as a member of the Police or as a trafficofficer; or

"(c) Hold office as an employee of the Public Service who isemployed- 15

"(i) In the Ministry of Justice; or"(ii) In the Department of Corrections; or"(iii) In the head office of the Department for

Courts; or

"(iv) As an officer of the High Court or of a 20District Court; or

"(d) Be a party to a management contract entered into undersection 4A of the Penal Institutions Act 1954 or to a

security contract entered into under section 36G ofthat Act; or 25

"(e) Be a security officer within the meaning of section 2 (1)of the Penal Institutions Act 1954.

Cf. 1988, No. 110, s. 7 (5)"llc. Functions and powers of Community

Magistrates-(1) The functions and powers of Community 30Malpstrates are to carry out such functions and powers as areconierred on Community Magistrates-

la) By the Summary Proceedings Act 1957; or"(b) By the Summary Offences Act 1981; or"(c) By any other enactment. 35"(2) Each Community Magistrate is to sit in such Courts at

such times as the Chief District Court Judge may from time totime direct after consultation with-

"(a) The Chief Community Magistrate; or"(b) If the office of Chief Community Magistrate is vacant, 40

such other Community Magistrate as the ChiefDistrict Court Judge thinks flt.


"(3) The fact that a Community Ma*trate sits in anyparticular Court is conclusive evidence of his or her authority todo so.

"llD. Chief Community Magistrate-(1) The Governor-5 General may from time to time, by warrant under the

Governor-General's hand and on the advice of the Minister of

Justice, appoint a Chief Community Magistrate."(2) No person may be appointed as Chief Community

Magistrate unless that person has held a practising certificate as10 a barrister or solicitor for at least 5 years.

"(3) The criteria and procedures for appointment of a personas Chief Community Magistrate may be prescribed byregulations made under section 123; but the failure to makeany such regulations does not preclude the appointment of a

15 person as Chief Community Magistrate."(4) Subject to subsection {5), the Chief Community Magistrate

holds office so long as he or she holds office as a CommunityMagistrate.

"(5) With the prior approval of the Governor-General, the20 Chief Community Magistrate may resign that office without

resigning his or her office as a Community Magistrate."(6) Whenever by reason of illness, absence from New

Zealand, or any other cause the Chief Community Magistrate isprevented from exercisin the duties of his or her office, the

25 Governor-General may, by writing under his or her hand,appoint one of the other Community Magistrates to act asChief Community Magistrate until the Chief CommunityMagistrate resumes his or her duties and, during that period, toexecute the duties of that office and to exercise all powers that

30 may be lawfully exercised by the Chief Community Magistrate.

"1 lE. Functions of Chief Community Magistrate-(1) The functions of the Chief Community Magistrate include-

"(a) The undertaking of appropriate measures to ensure thatthe integrity of the office of Community Ma*trate

35 is maintained and that the Community Magistratesoperate effectively and efficiently within theframework of the District Courts:

"(b) Such other functions as are conferred on the ChiefCommunity Magistrate by regulations made under

40 section 123 or by any other enactment."(2) Without limiting the generality of subsection (1), the Chief

Community Magistrate-66

(a) May sit as a Community Magistrate and exercise thejurisdiction specified in this Act:

5


"(b) Is to be consulted by the Chief District Court Judge, inaccordance with section llc (2), with regard to therostering of Community Magistrates:

"(c) May be involved in the design and implementation oftraining programmes for Community Magistrates in 5consultation with the Department for Courts andthe Chief District Court Judge:

"(d) May, where appropriate, liaise with interested personson matters aifectmg the offce of CommunityMagistrate. 10

"11F. Tenure of office-(1) Every Community Magistratemust retire from office on attaining the age of 68 years.

"(2) The Governor-General may remove a CommunityMagistrate from office for neglect of duty, inability, disabilityaffecting performance of duty, bankruptcy, or misconduct, 15proved to the satisfaction of the Governor-General.

"(3) Any Community Magistrate may at any time resign theoffice of Community Magistrate by notice in writing addressedto the Minister ofJustice.

"11G. Remuneration and allowances of Community 20Magistrates-(1) There is to be paid to the Chief CommunityMagistrate and to the other Community Magistrates, out ofpublic money,-

"(a) Remuneration by way of fees, salary, or allowances atsuch rates as are determined from time to time by 25the Governor-General by Order in Council:

"(b) Such allowances, being travelling allowances orincidental or minor allowances, as may bedetermined from time to time by the Governor-General by Order in Council. 30

"(2) The remuneration of a Community Magistrate is not tobe diminished during the continuance of the CommunityMagistrate's appointment.

"(3) Any Order in Council made under subsection (1), and anyprovision of any such order, may be made so as to come into 35force on a date to be specified in that behalf in the order, beingthe date of the making of the order or any other date, whetherbefore or after the date of the making of the order.

"(4) Every such Order in Council, and any provision of anysuch order, in respect of which no date is specined as aforesaid, 40comes into force on the date of the making of the order.

"(5) Every Order in Council made under subsection (1) isdeemed to be a regulation for the purposes of the Acts and


Regulations Publication Act 1989 but not for the purposes ofthe Regulations (Disallowance) Act 1989."

5. Place of sittings-Section 21 (3) of the principal Act (asamended by section 8 (1) of the District Courts Amendment

5 Act 1980) is amended by inserting, after the word 'Justices",the words "or the Community Magistrate or CommunityMagistrates".

6. Times of sittings-Section 22 (2) of the principal Act isamended by inserting, after the word "Justices", the words "or

10 any Community Magistrate or Community Magistrates".

7. Persons who may take affidavits, etc-Section 56 ofthe principal Act (as substituted by section 3 of the DistIiCtCourts Amendment Act 1966) is amended by inserting, afterthe word "Justice,", the words "or before any Community

15 Magistrate, .

8. Consequential amendments-The enactments

specified in Schedule 1 are amended in the manner indicated inthat schedule.

PART 2

20 AMENDMENTS TO SUMMARY PROCEEDINGS ACT 1957

9. Part 2 to be part of Summary Proceedings Act 1957-(1) This Part is part of the Summary Proceedings Act 1957* (inthis Part referred to as the principal Act).

(2) This Part and Schedule 2 come into force on a date to be25 appointed by the Governor-General by Order in Council.

*R.S. Vol. 9, p. 588Amendments: 1982, Nos. 47,131, 158,1985, Nos. 55,162, 191; 1986, Nos. 73,76; 1987,

Nos. 165, 172; 1989, Nos. 21, 105; 1991, Nos. 62, 105; 1992, No. 82; 1993, No. 47; 1994,No. 161; 1995, Nos. 64, 87; 1996, Nos. 66,146

10. New sections substituted-(1) The principal Act isamended by repealing sections 4 and 5, and substituting thefollowing sections:

4. Summary criminal jurisdiction of Court-The30 summary criminal jurisdiction of a District Court must be

exercised in accordance with this Act-

"(a) By a District Court Judge; or"(b) By one or more Justices; orlc) By one or more Community Magistrates.

35 "5. Jurisdiction to conduct preliminary hearing ofindictable offences-(1) A Court presided over by a District

7


Court Judge or by 2 or more Justices or by one or moreCommunity Magistrates has jurisdiction to conduct-

"(a) The preliminary hearing of an indictable offence; and"(b) Any proceedings under section 153A."(2) Subsection (1) is subject to section 1853." 5(2) The following enactments are consequentially repealed:(a) So much of the Schedule of the Summary Proceedings

Amendment Act 1976 as relates to section 5 of the

principal Act:(b) Section 4 of the Summary Proceedings Amendment Act 10

1980:

(c) Section 2 of the Summary Proceedings Amendment Act(No. 4) 1985.

11. New sections substituted-(1) The principal Act isamended by repealing section 9 (as amended by section 3 of 15the Summary Proceedings Amendment Act 1987), andsubstitutmg the following sections:

'9.Jurisdiction of District Court Judges in respect ofsummary offences-(1) A Court presided over by a DistrictCourt Judge has jurisdiction in respect of every summary 20offence.

"(2) A Court presided over by a District Court Judge hassummary jurisdiction in respect of every offence that by anyAct is punishable by a fme, penalty, or forfeiture if no otherform of procedure is prescribed by that Act for the recovery of 25the same.

"9A. Jurisdiction of Justices in respect of summaryoffences-(1) A Court presided over by 2 or more Justices hasjurisdiction in respect of a summary offence in the followingcases, and in no other case, namely: 30

"(a) In any case where the enactment creating the offenceexpressly provides that jurisdiction may be exercisedby a Court presided over by a Justice or Justices:

"(b) In any case where by any enactment jurisdiction isexpressly given to a Justice or Justices: 35

"(c) In any case where the offence is an infringementoffence.

"(2) A Court presided over by one Justice has jurisdiction inrespect of a summary offence in the following cases, and in noother case, namely: 40

"(a) In any case where the enactment creating the offenceexpressly provides that jurisdiction may be exercisedby a Court presided over by one Justice; or


"(b) In any case where by any enactment jurisdiction isexpressly given to one Justice.

"98.Jurisdiction of Community Magistrates in respectof summary offences-(1) A Court presided over by one

5 Community Magistrate has jurisdiction in respect of asummary offence in the following cases, and (except asprovided in section 9c) in no other case, namely:

"(a) In any case where, under section 9A (1), a Court presidedover by 2 or more Justices has jurisdiction in respect

10 of the summary offence:"(b) In any case where, under section 9A (2), a Court presided

over by any one Justice has jurisdiction in respect ofthe summary offence:

ic) In any case where the enactment creating the offence15 expressly provides that jurisdiction may be exercised

by a Court presided over by one CommunityMagistrate or by one or more CommunityMagistrates:

"(d) In any case where by any enactment jurisdiction is20 expressly given to one Community Magistrate or

one or more Community Magistrates."(2) A Court presided over by 2 or more Community

Magistrates has the same jurisdiction in respect of a summaryoffence as a Court presided over by one Community

25 Magistrate.

"9C. Jurisdiction of Community Magistrates to imposesentences in respect of certain summary offences-(1) This section applies to any summary offence in respect ofwhich-

30 "(a) The maximum term of imprisonment (if any) that canbe imposed does not exceed 3 months; and

"(b) The maximum fine that can be imposed does notexceed $5,000.

"(2) Where a person who is charged with an offence to which35 this section applies is found guilty of that offence or pleads

guilty to that offence, a Court presided over by one or moreCommunity Magistrates may, in accordance with the CriminalJustice Act 1985, do one or more of the following acts:

"(a) Discharge the offender without conviction under section40 19 of that Act, and, if the Court thinks fit, make an

order under subsection (3) of that section:"(b) Discharge the offender under section 20 of that Act,

and, if the Court thinks fit, make an order undersubsection (2) of that section:

9


an orderlc) Make, under section 21 (1) of that Act,requiring the offender to appear for sentence ifcalled upon to do so within such period, notexceeding 1 year commencing with the date ofconviction, as the Court may specify in the order: 5

"(d) On making an order under section 21 (1) of that Act,also make an order under section 21 (2) of that Act:

"(e) Impose, under section 22 of that Act, a sentence ofreparation on the offender:

"(f) Subject to subsections (2) to (4) of section 26 of that Act, 10sentence the offender to pay a fine:

"(g) On imposing a fine on the offender for an offence towhich section 28 (1) of that Act applies, make anorder under that section awarding to the victim byway of compensation the whole or such portion of 15the fine as the Court thinks just:

"(h) Make, under section 28A of that Act, a non-associationorder in respect of the offender:

"(i) Impose, under section 29 of that Act, a sentence ofcommunity service on the offender: 20

"(j) Impose, under section 37 of that Act, a sentence ofperiodic detention on the offender:

"(k) Impose, under section 46 of that Act, a sentence ofsupervision on the offender:

"(1) Impose, under section 53 of that Act, a sentence of 25conannunity progrannnne on the offender:

"(m) Make, under section 83 of that Act, an orderdisqualifying the offender from holding or obtaininga driver's licence:

"(n) Make, under section 84 of that Act, a confiscation order 30in respect of a motor vehicle:

"(o) Make, under section 84 (3) (a) of that Act, an orderprohibiting the offender from acquiring any interestin any motor vehicle within 12 months after thedate of the order: 35

"(p) Make, under section 84 (SA) of that Act, an order settingaside the disposition by the offender of a motor

vehicle or of an interest in a motor vehicle.

"(3) No Court presided over by one or more CommunityMagistrates may Impose a sentence of imprisonment on any 40person.

"9D. Power to impose penalties provided for inTransport Act 1962-(1) Where a person who is charged withany summary offence to which section 9c of this Act applies is

5

10

15

20

25

30

35

40


found guilty of that offence or pleads guilty to that offence, aCourt presided over by one or more Community Magistrates-

"(a) May, if that offence is an offence against section 30 (1) orsection 30 (3) of the Transport Act 1962, make,under section 30 (1) or section 30 (3) of theTransport Act 1962, as the case may require, anorder disqualifying the person from holding orobtaining a driver's licence for such period as theCourt thinks fit, whether or not the Court imposesany other penalty for the offence:

"(b) Must, if that offence is an offence against section 35 ofthe Transport Act 1962, make, in addition to anyother penalties it may impose but subject tosection BOAc of that Act, an order undersection 3OAA (28) of that Act disqualifying theperson from holding or obtaining a driver's licencefor a period of 6 months or more or a period of12 months or more, as the case may require, unlessthe Court for special reasons relating to the offencethinks fit to order otherwise:

"(c) Must, if that offence is one to which section BOAA (3) orsection 30AB (2) of the Transport Act 1962 applies,make, in addition to any other penalties it mayimpose but subject to section BOAc of that Act, anorder under section BOAA (3) or section SOAB (2) ofthat Act, as the case may require, disqualifying theperson from holding or obtaining a driver's licenceior a period of 6 months or more, unless the Courtfor special reasons relating to the offence thinks fitto order otherwise:

"(d) Must, if that offence is one to which section BOAB (2A) ofthe Transport Act 1962 applies, make, in addition toany other penalties it may impose but subject tosection BOAc of that Act, an order under

section BOAB (2A) of that Act disqualifying theperson from holding or obtaining a driver's licencetor a period of 3 months or more, unless the Courtfor special reasons relating to the offence thinks fitto order otherwise:

"(e) May, if that offence is one to which section 30AB (3) ofthe Transport Act 1962 applies, make an orderunder section 30AB (3) of that Act disqualifying theperson from holding or obtaining a driver's licencetor such period as the Court thinks fit, whether or

11


not the Court imposes any other penalty for theoffence:

"(f) Must, if the offence is one to which section SOAD (1) ofthe Transport Act 1962 applies, make, in addition toany other penalty the Court may impose, and 5notwithstanding section BOAc of that Act, an orderunder section 30AD of that Act disqualifying theperson from driving any vehicle being used in atransport service (other than a rental service) forsuch period, being not less than 1 year and 1 day 10and not more than 10 years as the Court thinks fit:

"(g) Must, if the offence is one to which section 3OA of theTransport Act 1962 applies, make, subject tosubsection (2) of that section, an order under thatsection requiring the person to attend an 15Assessment Centre and disqualifying the personfrom holding or obtaining a driver's licence until theDirector makes an order under section 30c (1) ofthat Act removing that disqualification.

"(2) Nothing in this section restricts section 9c of this Act or any 20other duty or power of a Court presided over by one or moreCommunity Magistrates-

"(a) To disqualify any person from holding or obtaining adriver's licence; or

"(b) To impose any other penalty. 25

"9E. Ancillary powers under Criminal Justice Act 1985and Transport Act 1962-A Court presided over by one ormore Community Magistrates has, in exercising any powerconferred on it by section 9C or section 90 of this Act,-

"(a) Power to make, under section 138 of the CIirninal Justice 30Act 1985 (which relates to the power to clear theCourt and to forbid reports of proceedings), ordersof any kind described in subsection (2) of thatsection:

"(b) Power to make orders under section 140 of the Criminal 35Justice Act 1985 (which relates to the power toprohibit the publication of names and otherparticulars):

"(c) All the powers and processes that a court has under theCriminal Justice Act 1985 or the Transport Act 1962 40for the purpose of perfecting, or giving full effect to,any sentence imposed or order made under any ofthe provisions of those Acts referred to in section 9c orsection 90 of this Act.


"9F. Power of Community Magistrates to declinejurisdiction-(1) A Court presided over by one or moreCommunity Magistrates may decline jurisdiction in respect of asummary offence and may refer the case to a Court presided

5 over by a District Court Judge."(2) Where, under subsection (1), a Court declines jurisdiction in

respect of a summary offence, that Court must forthwithadjourn the hearing of the charge to a time and place thenappointed.

10 "(3) Sections 45 to 49, so far as applicable and with thenecessary modifications, apply to any adjournment undersubsection (2).

"9G. Power to transfer matter to Court presided overby District Court Judge-(1) A District Court Judge may, in

15 any case in which the District Court Judge considers itappropriate, order that any matter before a Court presidedover by one or more Community Magistrates be transierred toa Court presided over by a District Court Judge.

"(2) A Court to which a matter is transferred under20 subsection (1) may complete or otherwise deal with the matter as

if it had been brought before that Court in the first instance."(2) Section 3 of the Summary Proceedings Amendment Act

1987 is consequentially repealed.

12. Issue of summons or warrant to arrest defendant-

25 (1) Section 19 (1) (a) of the principal Act is amended byinserting, after the word '{Justice", the words "or CommunityMagistrate".

(2) Section 19 (1) (b) of the principal Act is amended-(a) By inserting, after the words "any Justice", the words "or

30 any Community Magistrate"; and(b) By inserting in subparagraph (i), and also in subparagraph

(ii), after the words "the Justice", the words ' orCommunity Magistrate".

13. Issue of summons or warrant for attendance of

35 witness-Section 20 (1) of the principal Act is amended byinserting, after the word 'Justice", the words "or CommunityMagistrate".

14. Summary procedure for minor offences-(1) Section2OA of the principal Act (as inserted by section 7(1) of the

40 Summary Proceedings Amendment Act 1973) is amended byinserting in subsection (1), after the words "District CourtJudge", the words "or Community Magistrate".

13


(2) Section 2OA of the principal Act (as so inserted) isamended by inserting in subsection (7), after the words"District Court Judge" in both places where they appear, thewords "or Community Magistrate".

(3) Section 20A of the principal Act (as so inserted) is 5amended by repealing subsection (8) (as amended by section3 (6) of the Summary Proceedings Amendment Act 1976), andsubstituting the following subsection:

"(8) If the defendant indicates in accordance with subsection(5) that the defendant wishes to deny the charge or to appear 10before the Court for that or any other purpose or if in any casea District Court Judge or Community Magistrate so directs, asummons, in the prescribed form, must be issued to thedefendant by a District Court Judge, Justice, CommunityMagistrate, or Registrar (not being a constable) and subsequent 15proceedings nnust be had on that surnmons as if the noticeunder subsection (2) were an information."

(4) Section 3 (6) of the Summary Proceedings AmendmentAct 1976 is consequentially repealed.

15. Withdrawal of warrant-Section 23 of the principal 20Act is amended by msertmg, after the word yustice", thewords "or Community Magistrate".

16. Mode of service of summons on defendant-Section

24 (1) of the principal Act is amended by inserting in theproviso, after the word "Justice", the words "or Community 25Magistrate".

17. Order for taking evidence of defence witness atdistance-Section 31 (2) of the ]incipal Act is amended byinserting, after the word 'lustice', the words or CommunityMagistrate". 30

18. Order for taking evidence of person about to leavecountry-Section 32 (2) of the principal Act is amended byinserting, after the word 'Justice , the words "or CommunityMagistrate".

19. Place of hearing of information-Section 34 of the 35principal Act (as substituted by section 2 of the SummaryProceedings Amendment Act 1991) is amended by inserting insubsection (2), after the word "Justice", the words "orCommunity Magistrate".


20. Power to adjourn-Section 45 (2) of the principal Act isamended by inserting, after the word "Justice", the words "orCommunity Magistrate".

21. New sections substituted-(1) The principal Act is5 amended by repealing sections 46 to 51, and substituting the

following sections:

"46. Dealing with defendant on adjournment-(1) Where any hearing is adjourned under section 45, and thedefendant is liable on conviction to a sentence of imprisonment

10 or the defendant has been arrested, the Court or Justice orCommunity Magistrate may-

"(a) Allow the defendant to go at large; or"(b) Grant the defend,nt bail; or"(c) Remand the defendant in custody,-

15 for the period of the adjournment.

"(2) A Registrar may exercise the power conferred bysubsection (1) (b) to grant bail if-

"(a) The informant does not oppose bail; and"(b) The offence with which the defendant has been

20 charged--"(i) Is not punishable by imprisonment; or"(ii) Is punishable by a term of imprisonment of

not more than 10 years."(3) A Registrar may exercise the power conferred by

25 subsection (1) (c) to remand a defendant in custody if-"(a) Both the defendant and the informant agree to the

rernand; and

"(b) The defendant-li) Is legally represented or has indicated that he

30 or she has received legal advice; or"(ii) Has declined an opportunity to obtain legal

advice.

"(4) The following provisions apply to every remand imposedby a Registrar under subsection (3):

35 la) A single period of remand may not exceed 8 days:"(b) Not more than 2 consecutive periods of remand may be

imposed and neither of those periods may exceed8 days:

"(c) The defendant must be brought before a Court orJustice40 or Community Magistrate-

"(i) At the earliest opportunity if, at any timeduring the period oi remand, the defendant

15


withdraws his or her agreement under subsection (3) (a);or

"(ii) At the earliest opportunity after theexpiration of 16 days commencing on the date ofthe imposition of the remand;- 5and the Court or Justice or Community Magistratemust determine what action (if any) under subsection(1) should be taken in respect of the defendant.

"(5) Subsections (1) to (3) must be read subject to sections 318 and319 of the Crimes Act 1961, section 30 of the Misuse of Drugs 10Amendment Act 1978, and section 142 of the Criminal JusticeAct 1985.

"47. Warrant for detention of defendant remanded in

custody-(1) Where, pursuant to section 46, the defendant isremanded in custody, the Court or Justice or Community 15Magistrate or Registrar must issue a warrant in the prescribedform for the detention of the defendant in custody for theperiod of the adjournment.

"(2) Where, pursuant to section 46, the defend;nt is grantedbail, the Court orJustice or Community Magistrate or Registrar 20may, and must if the defendant is not released within theperiod specified in section 50 (3) (a),-

"(a) Issue a warrant in the prescribed form for the detentionof the defendant in custody for the period of theadjournment; and 25

"(b) Certify on the back of the warrant the fact that theCourt or Justice or Community Ma.strate orRegistrar has granted the defendant bail, and thecondition or conditions imposed.

"48. Defendant, if bailable as of right, to be brought 30before Court on request-(1) Where-

"(a) A defendant who is bailable as of right has beenremanded in custody pursuant to section 46; and

"(b) The defendant did not make application for bail at thetime of the remand,- 35

the defendant must, if the defendant so requests, be broughtbefore a Court for the purpose of making an application forbail.

"(2) Any such application may be granted as if it were anapplication made at the time at which the defendant was 40remanded.

"(3) Where bail is granted under this section, the particularsrequired under section 47 (2) to be certified by the Court or Justiceor Community Magistrate or Registrar remanding the


defendant must be certified in writing by the Court grantingbail, and forwarded to the Superintendent of the penalinstitution in which the defendant is detained pursuant to theremand warrant.

5 "49. Conditions of bail-(1) Subject to the provisions ofsection 50, where a defendant is granted bail, the deiendant mustbe released on condition that the defendant attend

personally-"(a) At the time and place at which the hearing is adjourned;

10 or

"(b) At every time and place to which, during the course ofthe proceedings, the hearing may from time to timebe adjourned,-

as the Court or Justice or Community Magistrate or Registrar15 thinks fit.

"(2) The Court or Justice or Community Ma*trate orRegistrar may impose, as a further condition of the defendant'srelease, a condition that the defendant report to the police atsuch time or times and at such place or places as the Court or

20 Justice or Community Magistrate or Registrar orders."(3) Whether or not the Court or Justice or Community

Magistrate or Registrar imposes a condition under subsection (2),the Court or Justice or Community Magistrate or Registrarmay impose any other condition that the Court or Justice or

25 Community Magistrate or Registrar considers reasonablynecessary to ensure that the defendant-

"(a) Appears in Court on the date to which the defendant hasbeen remanded; and

"(b) Does not interfere with any witness or any evidence30 against the defendant; and

"(c) Does not commit any offence while on bail."(4) Notwithstanding anything in subsection (3), the Court or

justice or Community Magistrate or Registrar must not requireas a further condition of the defendant's release the deposit of

35 any sum or the entering into of any obligation in the nature ofa bond, guarantee, or surety, whether by the defendant or anyother person.

"50. Release of defendant granted bail-(1) Where adefendant is granted bail, the Registrar must prepare a notice

40 of bail setting out the conditions of bail imposed by or undersection 49.

"(2) The Registrar or (as the case may require) the Justice orCommunity Magistrate or Superintendent of the penalinstitution in which the defendant is detained must give the

17


notice of bail to the defendant, satisfy himself or herself thatthe defendant understands the conditions of bail, and requirethe defendant to sign the notice of bail.

"(3) Where a defendant is granted bail, the Court or Justiceor Community Magistrate or Registrar may direct that the 5defendant be detained in the custody of the Court-

66

(a) For such time, not exceeding 2 hours, as may benecessary to enable the notice of bail to be preparedand signed; and

"(b) If, within the period of 2 hours, the defendant is not 10released (whether by reason of having refused tosign the notice of bail or for any other reason), forsuch time as may be necessary to enable a warrantto be issued under section 47 (2).

"(4) Where bail is granted to a defendant who has been 15remanded in custody and is in custody only under the warrantissued in pursuance of the remand, the defendant must bereleased from custody forthwith upon signing the notice of bail.

"(5) A copy of the notice of bail must be given to thedefendant on his or her release or as soon as practicable 20thereafter.

"(6) Subject to subsection (8), in any case where a warrant hasbeen issued under section 47 (2), a warrant of deliverance in theprescribed form must be issued and sent to the Superintendentof the penal institution in which the defendant is detained. 25

"(7) The warrant of deliverance may be issued by anyDistrict Court judge or Justice or Community Ma@strate orRegistrar on being satisfied that the defendant is entitled to bereleased and that the preceding requirements of this sectionhave been met. 30

"(8) No warrant of deliverance need be issued if the Registrarbefore whom the defendant signs the notice of bail endorses onthe remand a certificate that the defendant has signed thenotice of bail, and that the defendant is accordingly entitled tobe released. 35

"50A. Variation of conditions of bail-(1) Where thedefendAnt has been granted bail, any District Court Judge orJustice or Community Magistrate may, on the application ofthe defendant or the informant, make an order varying orrevoking any condition of bail or substituting or imposing any 40other condition of bail.

"(2) A Registrar may exercise the power conferred bysubsection (1) to make an order if-

"(a) The informant does not object; and


"(b) A Registrar imposed the original conditions of bail."(3) Where any Court orJustice or Community Magistrate or

Registrar has, in grantins bail to any defendant, imposed thecondition that the defendant report to the police at such time

5 or times and at such place or places as the Court or Justice orCommunity Magistrate or Registrar orders, any Registrar may,on the application of the defendant, make an order varying thetime or times or the place or places at which the defendant isrequired to so report.

10 "(4) Where, pursuant to subsection (1), any Court or Justice orCommunity Magistrate or Registrar varies or revokes anycondition of bail or substitutes or imposes any other conditionof bail, the following provisions apply:

"(a) If the defend:Int is present at the Court, the Registrar15 must forthwith prepare a new notice of bail setting

out the conditions of bail as so amended (if any),satisfy himself or herself that the defendantunderstands the conditions of bail, and require thedefendant to sign the notice of bail:

20 "(b) If the defendant is not present at the Court, theRegistrar must send written notice to the defendantrequiring the defendant to attend at a specified timeand place for the execution of a fresh notice of bailcontaining the conditions as so amended (if any).

25 "(5) If, in any case to which subsection (4) applies, the defendantfails without reasonable excuse to attend at the time and placerequired, or fails to sign a fresh notice of bail, the Registrar or aDistrict Court Judge may issue a warrant for the arrest of thedefendant.

30 "51. Defendant maybe admitted to bail by constable incertain cases-(1) Where any person who is charged with anoffence for which that person may be proceeded againstsummarily, and who has been arrested without warrant,cannot be brought immediately before a Court, any constable

35 may, if he or she considers it prudent to do so, take the bailbond of that person.

"(2) In determining whether it is prudent to grant bail undersubsection (1) to any person charged with an offence againstsection 49 (1) (a) or section 49 (1) (b) of the Domestic Violence

40 Act 1995, the need to protect the victim of the alleged offencemust be the paramount consideration.

"(3) Any bail bond taken pursuant to this section-"(a) May be either with or without sureties as the constable

thinks fit; and

19


"(b) Must be in such sum or sums as the constable thinkssufficient; and

"(c) Is subject to the condition that, at a time and place to bespecified in the bond, being a time not later than 7days from the date of the bond, the person bailed 5attend personally before a Court.

"(4) Where a person is granted bail pursuant to this section,the constable who takes the bail bond of the person may, inaddition to the conditions that may be imposed undersubsection (2), also impose any condition that rnight be imposed 10by a Court or Justice or Community Magistrate or Registrarunder subsection (2) or subsection (3) of section 49.

"(5) Every bail bond taken pursuant to this section has thesame effect as if it had been taken before a Justice."

(2) The following enactments are consequentially repealed: 15(a) Section 2 of the Summary Proceedings Amendment Act

(No. 2) 1987:(b) Section 2 of the Summary Proceedings Amendment Act

1989:

(c) Section 4 of the Summary Proceedings Amendment Act 201991:

(d) Sections 3 to 6 of the Summary Proceedings AmendmentAct (No. 2) 1991:

(e) Sections 7 and 8 of the Surnrnary ProceedingsAmendment Act 1995: 25

(f) Section 2 of the Summary Proceedings Amendment Act(No. 2) 1995.

22. New sections substituted-(1) The principal Act isamended by repealing sections 53 to 55, and substituting thefollowing sections: 30

'53. Defendant on bail may be arrested withoutwarrant in certain circumstances-(1) Where, in respect ofany defendant who has been released on bail by any Court orJustice or Community Mastrate or Registrar or member ofthe Police, any member oi the Police believes on reasonable 35grounds that--

"(a) The defendant has absconded or is about to abscond forthe purpose of evading any appearance or furtherappearance in Court; or

"(b) The defendant has contravened or failed to comply with 40any condition of bail,-

the member of the Police may arrest the defendant withoutwarrant.


"(2) Every defendant who is arrested under subsection (1) mustbe brought before a District Court Judge or Justice orCommunity Magistrate as soon as possible.

"(3) In any such case, the District Court Judge or Justice or5 Community Magistrate, on bein satisfied that the defendant

had absconded or was about to abscond or has contravened or

failed to comply with any condition of bail, must reconsider thequestion of bail; and, subject to section 318 of the Crimes Act1961 but notwithstanding any other provision of that Act, the

10 defendant is thereafter to be bailable only at the discretion ofthe District Court Judge or Justice or Community Magistrate.

"54. Failure to answer bail-(1) Every defendant commitsan offence and is liable on summary conviction toimprisonment for a term not exceeding 1 year or a fine not

15 exceeding $2,000 who, having been released on bail by a Courtor Justice or Community Magistrate or Registrar,-

"(a) Fails without reasonable excuse to attend personally atthe time and the Court specified in the notice ofbail; or

20 "(b) Fails without reasonable excuse to attend personally atany time and place to which during the course ofthe proceedings the hearing has been adjourned.

"(2) Every defendant commits an offence and is liable onsummary conviction to a fine not exceeding $1,000 who,

25 having been released on bail by a member of the Police, failswithout reasonable excuse to attend personally at the time andthe Court specified in the bail bond.

"55. Arrest of defendant who does not attend

hearing-Where a defendant who has been released on bail30 by a Court orJustice or Community Magistrate or Registrar or

member of the Police-

"(a) Does not attend personally at the time and placespecified in the notice ot bail or, as the case may be,the bail bond; or

35 "(b) Does not attend personally at any time and place towhich during the course of the proceedings thehearing has been adjourned,-

any District Court Judge or Justice or Community Magistrateor Registrar may issue a warrant to arrest the defendant and

40 bring the defendant before a Court."(2) The following enactments are consequentially repealed:(a) Section 3 of the Summary Proceedings Amendment Act

(No. 2) 1987:

21


(b) Sections 7 to 9 of the Summary Proceedings AmendmentAct (No. 2) 1991.

23. Effect on bond of attendance or non-attendance of

person bailed by constable-Section 56 of the principal Act(as substituted by section 9 of the Summary Proceedings 5Amendment Act 1995) is amended by inserting in subsection(2), after the word "Justices", the words "or CommunityMagistrate or Community Magistrates".

24. Certification of non-performance of condition ofbail bond-(1) The principal Act is amended by repealing 10section 57, and substituting the following section:

"57. (1) Where a defendant who has been released on bail atany time fails to comply with any condition of the defendant'snotice of bail, any District Court Judge or Justice orCommunity Masistrate or Registrar may certify upon the back 15of the notice of bail or, as the case may be, the bail bond thenon-performance of that condition.

"(2) Every certificate given by a District Court Judge orJustice or Community Magistrate or Registrar under subsection (1)is prima facie evidence, for the purposes of section 54, that the 20defendant has failed to comply with the condition of the noticeof bail or bail bond specified in the certificate."

(2) The following enactments are consequentially repealed:(a) So much of the Schedule of the Summary Proceedings

Amendment Act (No. 2) 1987 as relates to section 57 25of the principal Act:

(b) Subsections (3) and (4) of section 7 of the SummaryProceedings Amendment Act 1995:

(c) Section 4 of the Summary Proceedings Amendment Act(No. 2) 1995. 30

25. Defendant's right to elect trial by jury whereoffence punishable by more than 3 months'

imprisonment-Section 66 (6) of the principal Act isamended by inserting in the proviso (as added by section 5 (1)of the Summa7 Proceedings Amendment Act 1964), after the 35word "Justices ', the words "or one or more CommunityMagistrates".

26. Criminal Records-Section 71 of the principal Act isamended by inserting in subsection (1), and also in subsection(2), after the word yustices", the words "or Community 40Magistrate or Community Magistrates".

15

20

25

30

35

40


27. District Court Judge or Justice or CommunityMagistrate may grant rehearing-Section 75 of the principalAct is amended-

(a) By inserting in subsection (1), and also in subsection (3),5 after the word "Justices", the words "or Community

Magistrate or Community Magistrates"; and(b) By inserting in the proviso to subsection (1), after the

word "Justice", the words "or CommunityMagistrate".

10 28. Power of the Court to amend defective sentences-

Section 77 (1) of the principal Act is amended by inserting,after the word 'Justices", the words "or by one or moreCommunity Magistrates".

29. Action where fine remains unpaid-(1) Section 88 (1)of the principal Act (as enacted by section 14 of the SummaryProceedings Amendment Act 1987) is amended by inserting inparagraph (c), and also in paragraph (d), after the word'judge", the words "or Community Magistrate".

(2) Section 88 (2) of the pIincipal Act (as so enacted) isamended by repealing paragraph (a), and substituting thefollowing paragraph:

"(a) The defendant must be brought before a District CourtJudge or a Community Magistrate or, if neither aDistrict Court Judge nor a Community Magistrate isavailable, the Registrar:".

(3) Section 88 (2) of the principal Act (as so enacted) isamended by inserting in paragraphs (b) to (e), after the words"District Court Judge" wherever they appear, the words "or aCommunity Magistrate".

(4) Section 88 (3) of the principal Act (as so enacted) isamended by inserting, after the word "Judge" in both placeswhere it appears, the words "or Community Magistrate '.

(5) Section 88 of the principal Act (as so enacted) is amendedby inserting, after subsection (3), the following subsection:

"(SAAA) No Community Magistrate may direct, undersubsection (3) (b), the issue of a warrant of commitment or

impose, under subsection (3) (e), a sentence of correctivetraining; but, in any case where a Community Magistrateconsiders the issue of such a warrant or the imposition of sucha sentence to be appropriate, the Community Magistrate mustrefer the matter to a District Court Judge, in which casesections 45 to 59 of this Act, so far as they are applicable andwith the necessary modifications, apply."

23


(6) Section 88 of the principal Act (as so enacted) is amendedby inserting in subsection (SA) (as inserted by section 14 (1) ofthe Summary Proceedings Amendment Act 1993), after thewords "District Court Judge", the words "or CommunityMagistrate". 5

(7) Section 88 of the principal Act (as so enacted) is amendedby inserting in subsections (8) and (9) (as substituted bysection 14 (2) of the Summary Proceedings Amendment Act1993), after the word 'Ilude" wherever it appears, the words"or Community Magistrate '. 10

30. Rights of representation and appeal-(1) Theprincipal Act is amended by repealing section 89 (as substitutedby section 14 of the Summary Proceedings Amendment Act1987), and substituting the following section:

"89. (1) Every defendant attending before a District Court 15Judge or Community Magistrate pursuant to any provision ofsection 88 is entitled to be represented by a barrister orsolicitor.

"(2) Where a defendant is sentenced to community service,periodic detention, or corrective training under section 88 (3) or 20is imprisoned pursuant to a warrant of commitment issuedunder that provision,-

"(a) The defendant has, if sentenced by a District CourtJudge, the same right to appeal under section 115 asif the defendant had been convicted on an 25

information or complaint; and"(b) The defendant has, if sentenced by a Community

Magistrate, a right of appeal under section 114A."(3) On any such appeal under section 115 by a defendant

sentenced by a District Court Judge, the High Court may, in 30addition to its powers under section 121, remit the matter to aDistrict Court Judge to be dealt with as that Judge thinks fitunder section 88 (3), except that that Judge must not impose asentence the same as that appealed against."

(2) Section 15 of the Summary Proceedings Amendment Act 351993 is consequentially repealed.

31. Restriction on imprisonment-Section 106E of theprincipal Act (as substituted by section 20 (1) of the SummaryProceedings Amendment Act 1993) is amended-

(a) By inserting in subsection (1), after the word "Judge" 40wherever it appears, the words "or CommunityMagistrate"; and


(b) By insertin in subsection (5), after the word "Judge", thewords 'or Community Magistrate".

32. Appeals from decisions of CommunityMagistrates-The principal Act is amended by inserting, after

5 section 114, the following section:"114A. (1) Either party to any proceedings that are heard by

a Court presided over by a Community Magistrate or 2 ormore Community Magistrates has, subject to subsection (2), thesame rights ofappeal under sections 89,107,115, 11 SA, 1158,

10 115c, and 1150 as the party would have had if the Court thatheard the proceedings had been presided over by a DistrictCourt Judge.

"(2) Every appeal brought by a party to proceedings to whichsubsection (1) applies is to be an appeal to a Court presided over

15 by a District Court Judge."(3) For the purposes of an appeal to which subsection (1)

applies, this Part applies, subject to the modifications set out inSchedule 2A and to all other necessary modifications."

33. Appeal to High Court on question of law-The20 principal Act is amended by inserting, after section 114A (as

inserted by section 32 of this Act), the folfowing section:"114B. (1) Either party to any proceedings to which an

appeal under section 114A (1) applies may, with the leave of theDistrict Court, appeal to the High Court against any

25 determination of the District Court on a question of law arisingin the appeal to which section 114A (1) applies:

"Provided that, if the DistriCt Court refuses to grant leave toappeal to the High Court, the High Court may grant specialleave to appeal.

30 "(2) A party desiring to appeal to the High Court under thissection must, within 21 days after the determination of theDistrict Court, or within such further time as that Court mayallow, give notice of his or her application for leave to appeal insuch manner as may be directed by the rules of that Court, and

35 the District Court may grant leave accordinly if, in the opinionof that Court, the cpestion of law involved ln the appeal is onewhich, by reason oi its general or public importance or for anyother reason, ought to be submitted to the High Court fordecision.

40 "(3) Where the District Court refuses leave to any party toappeal to the H* Court under this section, that party may,within 21 days aiter the refusal of the District Court or withinsuch further time as the High Court may allow, apply to the

25


High Court, in such manner as may be directed by the rules ofthat Court, for special leave to appeal to that Court, and theHigh Court may grant leave accordingly if in the opinion ofthat Court the question of law involved in the appeal is onewhich, by reason of its general or public importance or for any 5other reason, ought to be submitted to the High Court fordecision.

"(4) On any appeal to the High Court under this section, theHigh Court has the same power to adjudicate on theproceedings as the District Court had. 10

"(5) The decision of the High Court on any appeal under thissection is final; and the same judgment must be entered in theDistrict Court, and the same execution and other consequencesand proceedings must follow thereon, as if the decision of theHigh Court had been given in the District Court. 15

"(6) The decision of the High Court on any application tothat Court for leave to appeal is to be final.

"(7) Nothing in section 144 applies in relation to a decision ofthe High Court made under this section."

34. Right of appeal against decisions relating to bail- 20Section 1150 of the principal Act (as substituted by section 11of the Summary Proceedins Amendment Act (No. 2) 1991) isamended by insertin in subsection (3) (b), after the words "ADistrict Court Judge', the words "or Justice".

35. Proceedings under Part V-Section 145 (2) of the 25principal Act is amended by inserting, after the word "Justice",the words "or Community Magistrate".

36. Issue of summons to or warrant to arrest

defendant-Section 147 of the principal Act is amended byinserting, after the word 'Justice" in both places where it 30appears, the words "or Community Magistrate".

37. Issue of warrant where defendant who has been

summoned does not attend-Section 148 of the principalAct is amended by inserting, after the word ustices", thewords "or Community Magistrate or Community Magistrates". 35

38. Application of provisions of Part II-(1) Section 153of the principal Act is amended by repealing subsection (2) (asadded by section 17 (2) of the Summary ProceedingsAmendment Act (No. 2) 1991), and substituting the followingsubsection: 40


"(2) Where, by virtue of any of the provisions applied bysubsection (1) with respect to proceedings to which this Partapplies, a defendant is granted or refused bail, or any DistrictCourt Judge or Justice or Community Magistrate varies or

5 revokes or substitutes or imposes any condition of bail, orrefuses to vary or revoke or impose any condition of bail, theprovisions of sections 115D and 115E, as far as they areapplicable and with all necessary modifications, applyaccordingly.

10 (2) Section 17 (2) of the Summary Proceedings AmendmentAct (No. 2) 1991 is consequentially repealed.

39. Defendant may plead guilty before or duringpreliminary hearing-(1) Section 153A of the principal Act(as inserted by section 15 (1) of the Summary Proceedings

15 Amendment Act 1976) is amended by repealing subsection (6B)(as inserted by section 18 of the Summary ProceedingsAmendment Act (No. 2) 1991), and substituting the followingsubsection:

"(68) Where, by virtue of subsection (6A) or of any of the20 provisions of Part II (as applied by that subsection), a defendant

is granted or refused bail, or any District Court Judge or Justiceor Community Magistrate varies or revokes or substitutes orimposes any condition of bail, or refuses to vary or revoke orsubstitute or impose any condition of bail, the provisions of

25 sections 1151) and 115E, as far as they are applicable and withall necessary modifications, apply accordingly."

(2) Section 18 of the Summary Proceedings Amendment Act(No. 2) 1991 is consequentially repealed.

40. Place of preliminary hearing-Section 155 of the30 principal Act (as substituted by section 7 (1) of the Summary

Proceedings Amendment Act 1991) is amended by inserting insubsection (2), after the word "Justice", the words or

Community Magistrate".

41. Depositions of witnesses-Section 161 (2) of the35 principal Act is amended by adding the words "or Community

Magistrate or Community Magistrates".

42. Statement of defendant who is unrepresented-Section 163 of the principal Act (as substituted by section 21(1)of the Summary Proceedings Amendment Act 1973) is

40 amended by inserting, after the word yustices" wherever it

27


appears, the words "or Community Magistrate or CommunityMagistrates".

43. Witnesses on behalf of defendant to be examined if

defendant wishes-Section 165 (2) of the principal Act isamended by adding the words "or Community Magistrate or 5Community Magistrates".

44. If evidence sufficient defendant may be committedfor trial or sentence-(1) Section 168 of the principal Act isamended by repealing subsection (1B) (as inserted by section 19of the Summary Proceedings Amendment Act (No. 2) 1991), 10and substituting the following subsection:

"(18) Where, by virtue of subsection (lA) or of any of theprovisions of Part II (as applied by that subsection), a defendantis granted or refused bail, or any District Court Judge or Justiceor Community Maistrate varies or revokes or substitutes or 15imposes any condition of bail, or refuses to vary or revoke orsubstitute or impose any condition of bail, the provisions ofsections 115D and 115E, as far as they are applicable and withall necessary modifications, apply accordingly.

(2) Section 168 (3) of the principal Act is amended by 20inserting, after the word "justices" in both places where itappears, the words "Community Magistrate or CommunityMagistrates".

(3) Section 19 of the Summary Proceedings Amendment Act(No. 2) 1991 is consequentially repealed. 25

45. Release on bail of defendant committed for trial or

sentence-(1) Section 171 of the principal Act is amended byrepealing subsection (5) (as added by section 20 (2) of theSummary Proceedings Amendment Act (No. 2) 1991 andamended by section 18 of the Summary Proceedings 30Amendment Act 1995), and substituting the followingsubsection:

"(5) Where, by virtue of any of the provisions of this sectionor of Part II (as applied by this section), a defendant who hasbeen committed ior trial or for sentence is granted or refused 35bail, or any District Court Judge or Justice or Justices orCommunity Magistrate or Community Magistrates vary orrevoke or substitute or impose any condition of bail, or refuseto vary or revoke or substitute or impose any condition of bail,the provisions of sections 115D and 115E, as far as they are 40applicable and with all necessary modifications, applyaccordingly.


(2) The following enactments are consequentially repealed:(a) Section 20 (2) of the Summary Proceedings Amendment

Act (No. 2) 1991:

(b) Section 18 of the Summary Proceedings Amendment Act5 1995.

46. Power to take statement of person dangerously ill-Section 175 of the principal Act is amended by inserting, afterthe word "Justice" wherever it appears, the words "orCommunity Magistrate".

10 47. Evidence of statement made by person dangerouslyill-Section 176 (b) of the principal Act is amended byinserting, after the word "Justice", the words "or CommunityMagistrate".

48. Provision for person in custody to be present at15 taking of statement-Section 177 of the principal Act is

amended by inserting, after the word "Justice", the words "orCommunity Magistrate".

49. Notice to witnesses to attend at High Court-(1) Section 181 of the principal Act is amended by repealing

20 subsection (1) (as substituted by section 23 (1) of the SummaryProceedings Amendment Act 1983), and substituting thefollowing subsection:

"(1) Where-

(a) Any person who gives evidence at the preliminary25 hearing completes his or her evidence; or

"(b) Any person makes a written statement that is admittedin evidence at the preliminary hearing under section173A,-

the presiding District Court judge or Justices or Community30 Magistrate or Community Magistrates or the Registrar may

issue to any such person a notice in the prescribed formrequiring that person, m the event of the defendant beingcommitted for trial, to attend at the High Court or the DistrictCourt, as the case may be, in accordance with the terms of the

35 notice to give evidence."(2) The following enactments are consequentially repealed:(a) Section 23 (1) of the Summary Proceedings Amendment

Act 1973:

(b) So much of the Schedule of the Summary Proceedings40 Amendment Act 1976 as relates to section 181 (1) of

29


the principal Act (as substituted by section 23 (1) ofthe Summary Proceedings Amendment Act 1973):

(c) Section 17 (1) of the Summary Proceedings AmendmentAct 1980.

50. When deposition or written statement may be read 5in evidence-Section 184 of the principal Act (as substitutedby section 20 (1) of the Summary Proceedings Amendment Act1976) is amended by inserting, after the word "Justices" inboth places where it appears, the words "or CommunityMagistrate or Community Magistrates". 10

51. Witness about to leave New Zealand may bearrested-Section 185 (1) of the principal Act is amended byinserting, after the word 'Justice", the words "or CommunityMagistrate".

52. Part VII amended-Part VII of the principal Act is 15amended by omitting the heading to that Part, and substitutingthe following heading:

"PROTECTION OF DISTRICT COURT JUDGES, JUSTICES, ANDCOMMUNITY MAGISTRATES".

53. No action against District Court Judge, Justice, or 20Community Magistrate unless act in excess ofjurisdiction or without jurisdiction-Section 193 of theprincipal Act is amended-

(a) By inserting in subsection (1), after the word "justice", thewords "or Community Magistrate"; and 25

(b) By inserting in subsection (2), after the words "one orrnore Justices", the words or one or nnore

Community Magistrates"; and(c) By inserting in subsection (2), after the words "other

66

District Court Judge or Justice", the words or 30

Community Magistrate"; and

(d) By insertin in subsection (2), after the words or

Justices', the words "or Community Magistrate orCommunity Magistrates".

54. No action against District Court Judge, Justice, or 35Community Magistrate to be brought in District Court-Section 194 of the principal Act is amended by inserting, afterthe word "ustice" in both places where it appears, the words"or Community Magistrate '.


55. Onus of proof-Section 195 of the principal Act isamended by inserting, after the word "ustice" in both placeswhere it appears, the words "or Community Magistrate '.

56. Plaintiff may be ordered to give security for costs-5 Section 196 of the principal Act is amended by inserting, after

the word "lustice" wherever it appears, the words or66


57. Indemnity to Justice or Community Magistrate-Section 197 of the principal Act is amended by inserting, after

10 the word "Justice" wherever it appears, the words "orCommunity Magistrate".

58. Search warrants-Section 198 of the principal Act isamended-

(a) By inserting in subsection (1), after the word 'Justice", the15 words or Community Magistrate"; and

(b) By inserting in subsection (6), after the word "Justice,",the words "Community Magistrate,".

59. Who may take affidavit-Section 202 of the principalAct is amended by inserting, after the word "Justice", the

20 words "or Community Magistrate".

60. Contempt of Court-Section 206 of the principal Act isamended by inserting, after the word yustice" wherever itappears, the words "or Community Magistrate".

61. Payment and recovery of fees-Section 207 (2) of the25 principal Act is amended by inserting, after the word "Justice",

the words "or Community Magistrate".

62. Second Schedule amended-The Second Schedule of

the principal Act (as substituted by section 9 of the SummaryProceedings Amendment Act 1994) is amended by inserting in

30 form 1, and also in form 2, after the words "Justice of thePeace,", the words "Community Magistrate,".

63. New Schedule 2A inserted-The principal Act isarnended by inserting, after the Second Schedule (assubstituted by section 9 of the Summary Proceedings

35 Amendment Act 1994), the Schedule 2A set out in Schedule 2 of thisAct.

31


PART 3

AMENDMENTS TO CRIMINAL JUSTICE ACT 1985

64. Part 3 to be part of Criminal Justice Act 1985-(1) This Part is part of the Criminal Justice Act 1985" (in thisPart referred to as the principal Act). 5

(2) This Part comes into force on a date to be appointed bythe Governor-General by Order in Council.*1985, No. 120

Amendments: 1986, No. 83.1987, Nos. 25,95,168,1989, Nos. 20,91; 1993, Nos. 43,93;1994, No. 28; 1995, No. 69; 1996, No. 81; 1997, No. 40

65. District Court presided over by CommunityMagistrate or Magistrates precluded from imposingsentence of imprisonment-The principal Act is amended 10by inserting, after section 7, the following section:

"7A. (1) No District Court presided over by one or moreCommunity Magistrates may, in exercisin the powers that ithas under this Act by virtue of the jurisdiction conferred onsuch a Court by the Summary Proceedings Act 1957 or any 15other Act, sentence any offender, in any circumstances, to aterm of imprisonment.

"(2) In any case where a District Court presided over by oneor more Community Magistrates has power, by virtue of thejurisdiction conferred on it by the Summary Proceedings Act 201957 or any other Act, to sentence an offender but considers itmore appropriate that the offender be sentenced to a term ofimprisonment, that Court must declinejurisdiction in respect ofthat offender and refer the sentencing of that offender to aDistrict Court presided over by a Distnct Court Judge. 25

"(3) Where the sentencing of an offender is referred, undersubsection (2), to a District Court presided over by a District CourtJudge, that Court may impose any sentence that Courtconsiders appropriate."

66. Power of adjournment for inquiries as to suitable 30punishment-Section 14 (5) of the principal Act is amendedDy inserting, after the word 'Justice' in both places where itoccurs, the words "or Community Magistrate".

67. General discretion to impose fines-Section 26 (3) ofthe principal Act is amended by adding the words "or one or 35more Community Magistrates".

68. Appeal against finding of disability-Section 112 (7)of the principal Act is amended by inserting, after the word

Community Magistrates 33

"or Community Magistrate or'Justices", the wordsCommunity Magistrates".

69. Appeal against acquittal on account of insanity-Section 114 (8) of the principal Act is amended by inserting,

5 after the word "ustices", the words "or CommunityMagistrate or Community Magistrates".

PART 4

AMENDMENTS TO CRIMES AcT 1961

70. Part 4 to be part of Crimes Act 1961-(1) This Part is10 pait of the Crimes Act 1961* (in this Part referred to as the

principal Act).(2) This Part comes into force on a date to be appointed by

the Governor-General by Order in Council.*R.S. Vol. 1, p. 635

Amendments: 1979, Nos. 5,127; 1980, Nos. 63,85; 1982, Nos. 46, 157,1985, Nos. 82, 121,160, 171; 1986, Nos. 4, 33,71,75, 82; 1987, Nos. 1, 167; 1988, No. 114; 1989, Nos. 22,

108; 1991, Nos, 63, 106; 1993, Nos. 33,46, 62; 1994, No. 27; 1995, Nos. 49, 68,88

71. Execution of sentence, process, or warrant-Section15 26 (3) of the principal Act is amended by inserting, after the

word yustice ', the words "or Community Magistrate".

72. Sentence or process without jurisdiction-Section28 (1) of the principal Act is amended-

(a) By inserting in paragraph (a), after the word "Justice,",20 the words "Community Magistrate,"; and

(b) By inserting in paragraph (b), after the word 'Justice", the"

words , Community Magistrate, .

73. Interpretation-Section 99 of the principal Act isamended by omitting from the deflnition of the term «judicial

25 officer" the words "or Justice of the Peace", and substitutingthe words "Justice of the Peace, or Community Magistrate".

74. Bench warrant-Section 350 (2) of the principal Act isamended by inserting, after the word "Justice", the words or


30 75. Record of proceedinp-Section 353 (2) (a) of theprincipal Act is amended by inserting, after the word'Justices", the words "or Community Magistrate or

Community Magistrates".

76. Evidence of former trial-Section 360 (2) of the35 principal Act is amended by inserting, after the word


"or Community Magistrate or"Justices", the wordsCommunity Magistrates".

77. Second Schedule amended-The Second Schedule of

the principal Act is amended by inserting in form 3, after thewords 'Justice of the Peace,", the words "Community 5Magistrate, .

PART 5

AMENDMENTS TO SUMMARY OFFENCES AcT 1981

78. Part 5 to be fart of Summary Offences Act 1981-( 1) This Part is part ot the Summary Offences Act 1981* (in this 10Part referred to as the principal Act).

(2) This Part comes into force on a date to be appointed bythe Governor-General by Order in Council.

*R.S. Vol. 28, p. 887

79. Imitation of Court documents-Section 18 of the

principal Act is amended by inserting in subsection (1) (a), and 15also in subsection (3) (b) (i), after the word "Justice", the words"or Community Magistrate".

80. Jurisdiction-Section 40 (2) of the rrincipal Act isamended by inserting, after the word yustices ', the words "orone or more Community Magistrates". 20

PART 6

AMENDMENTS TO OATHS AND DECLARATIONS ACT 1957

81. Part 6 to be part of Oaths and Declarations Act1957-(1) This Part is part of the Oaths and Declarations Act1957* (in this Part referred to as the principal Act). 25

(2) This Part comes into force on a date to be appointed bythe Governor-General by Order in Council.

*R. S. Vol. 28, p. 821Amendment: 1996, No. 136

82. Unlawful administration of oaths-Section 6 (3) of

the principal Act is amended by inserting, after the words'tlustice oi the Peace", the words "or Community Magistrate". 30

83. Persons required to take judicial oath-The SecondSchedule of the principal Act is amended by inserting, after theitem relating to Justices of the Peace, the following item:

"Community Magistrates."

Title of Act

1908, No. 33-The CrownGrants Act 1908 (R.S.Vol. 2, p. 1)

1908, No. 56-The EvidenceAct 1908 (R.S. Vol. 28,p. 451)


SCHEDULES

SCHEDULE 1

ENACTMENTS AMENDED

Amendment

35

Section 8

By repealing subsection (4) of section 45,and substituting the following subsection:

"(4) The said fees are recoverable in asummary way by the Director-Generalon complaint before-

"(a) A District Court Judge; or"(b) Any 2 Justices who, for the pur-

pose of hearing any such com-plaint, have the same powersand jurisdiction in all respectsas Justices have in the case ofcomplaints made under theSummary Proceedings Act1957; or

"(c) Any one or more CommunityMagistrates who, for the pur-pose of hearing any such com-plaint, have the same powersand jurisdiction in all respectsas 2 or more Justices have inthe case of complaints madeunder the Summary Proceed-ings Act 1957."

By inserting in the form numbered (2) inthe Second Schedule, after the words"New Zealand", the expression "[or aCommunity Magistrater'.

By adding to the form numbered (2) in theSecond Schedule, after the words 'usticeof the Peace", the expression "[or Com-munity Magistrate]".

By inserting in the definition of the term"Judge " in section 2, after the word

"Peace", the words "or any CommunityMagistrate or Community Magistrates".

By insertin in section 16 (1), after the word"Justices 1, the words "or the CommunityMagistrate or Community Magistrates".

By inserting in section 17 (1), after thewords "before Justices,", the words "orbefore any Community Magistrate orCommunity Magistrates,".

By inserting in section 17 (1), after thewords"or Justices", the words "or Com-munity Magistrate or Community Magis-trates".

36

Title of Act


SCHEDULE 1-continued

ENACTMENTS AMENDED-continued

1908, No. 81-The Indus-trial and Provident Socie-

ties Act 1908 (R.S. Vol. 7,p. 407)

1908, No. 96-The Land

Drainage Act 1908 (R.S.Vol. 6, p. 641)

1908, No. 141-The Pawn-brokers Act 1908 (R.S.Vol. 10, p. 667)

1908, No. 165-The RiverBoards Act 1908 (R.S.Vol. 10, p. 765)

Annendrnent

By adding to section 16 (d) the words "orone or more Community Magistrates."

By inserting in section 26, and also insection 53 (2), after the word 'lustice",the words "or Community Magistrate".

44

By omitting from section 81 the words orJustice", and substituting the words", Justice, or Community Magistrate".

By insertin in section 84, after the word'lustices', the words "or one or moreCommunity Magistrates".

By inserting in section 29, after the word'ustice" in both places where it appears,the words "or Community Magistrate".

By inserting in section 37 (1), and also insection 37 (3), after the words "DistrictCourt Judge,", the words "or one ormore Community Magistrates".

By insertin in section 40 (1), after the word"Justice, ', the words "Community magis-trate, .

By insertin in section 41, after the word66.

Justices', the words "or any Commu-nity Magistrate or Community Magis-trates".

By inserting in the form numbered (4) inthe Second Schedule, after the words'Justices of the Peace for New Zealand",the words "or a Community Magistrate".

By inserting in the form numbered (4) inthe Second Schedule, after the words"the saidJustice", the words "or Commu-nity Magistrate".

By adding to the form numbered (4) in theSecond Schedule, after the words 'Justiceof the Peace", the words "or CommunityMagistrate".

By„insertin in section 123, after the wordJustices, the words "or before any

Community Magistrate or CommunityMagistrates".

By omitting from section 124 the words "orJustice", and substituting the words", Justice, or Community Magistrate".

Title of Act


SCHEDULE 1 -continued


1909, No. 13-The InferiorCourts Procedure Act

1909 (R.S. Vol. 28, p. 667)

1910, No. 28-The BylawsAct 1910 (R.S. Vol. 1,p. 411)

1924, No. 11-The Acts

Interpretation Act 1924(R.S. Vol. 31, p. 1)

Amendment

By inserting in section 2 (c) (as enacted bysection 82 (2) of the Disputes TribunalsAct 1988), after the words "ustice of thePeace,", the words "Community Magis-trate, .

By inserting in section 12, after subsection(1), the following subsection:

"Cl A) If any omission or mistake ismade in any conviction or order drawnup by any Community Magistrate, andsufficient grounds were in proof beforethat Community Magistrate to haveauthorised the drawing up of that convic-tion or order free fom that omission or

mistake, that Community Magistratemay at any time thereafter, before theconviction or order has been quashed bya District Court presided over by a Dis-trict Court Judge or by any other Courthaving jurisdiction in that behalf, drawup an amended conviction or order inlieu of that in which the omission or mis-

take exists, and lodge the amended con-viction or order with the Registrar of theDistrict Court, to be filed by that Regis-trar in accordance with the SummaryProceedings Act 1957."

By inserting in section 12 (2), and also insection 12 (3), after the words 'lustice ofthe Peace", the words "or CommunityMagistrate".


"(9) Every Court, District Court Judge,Justice of the Peace, or Community Mag-istrate must take judicial notice ot everyorder so made by the High Court quash-ing or amending a bylaw or any partthereof."

By inserting in the definition of the term"summary conviction" in section 4, afterthe words 'Justices of the Peace", thewords "or one or more Community Mag-istrates".

By inserting in section 25 (d), after thewords 'Justice of the Peace", the words"or a Community Magistrate".

37

38

Title of Act



ENACTMENTS AMENDED--continued

1941, No. 12-The Soil Con-servation and Rivers Con-

trol Act 1941 (R.S. Vol. 36,p. 783)

1945, No. 16-The EvidenceAmendment Act 1945

(R.S. Vol. 28, p. 493)1949, No. 19-The Forests

Act 1949 (R.S. Vol. 34,p. 569)

1950, No. 54-The CrownProceedings Act 1950 (R.S.Vol. 2, p. 23)

1953, No. 31-The WildlifeAct 1953 (R.S. Vol. 7,p. 819)

1953, No. 88-The Physio-therapy Amendment Act1953 (R.S. Vol. 35, p. 565)

1957, No. 19-The Explo-sives Act 1957 (R.S. Vol. 6,p. 361)

Amendnnent

By omitting from section 158 the words "orJustice", and substituting the words", Justice, or Community Magistrate".

By inserting in section 159, after the word'Justice", the words "or CommunityMagistrate".

By inserting in section 11 (1) (f), after theword "Peace", the words "or Commu-nity Magistrate".

By inserting in section 718 (1) (e) (as enactedby section 6 (1) of the Forests Amend-ment Act 1983), after the words 'lusticeof the Peace,", the words "CommunityMagistrate,".

By inserting in the definition of the term"officer" in section 2 (1), after the words'Justice of the Peace,", the words "Com-munity Magistrate, .

By insertin in the denition of the term"servant' in section 2 (1) (as inserted bysection 2 of the Crown ProceedinsAmendment Act 1958), after the words'{justice of the Peace,", the words "Com-munity Magistrate,".

By jnsertin in section 21 (1), after the wordJustice', the words "or Community

Magistrate".By omitting from section 21 (2) the words„or Justice , and substituting the words"lustice, or Community Magistrate".

By omitting from the form numbered (3) inthe Third Schedule the words "or Jus-tice", and substituting the words "justice,or Community Magistrate".

By inserting in the proviso to section 39(1),"

after the word 'Justice", the words or

Community Magistrate".By inserting in section 11 (2), after the

words "Justice of the Peace", the words"or a Community Magistrate".

By inserting in section 11 (2), after thewords "the Justice", the words "or Com-munity Magistrate".

By inserting in section 9 (3), after the word"Justice", the words "or CommunityMagistrate".

Title of Act




1957, No. 19-The Explo-sives Act 1957 (R.S. Vol. 6,p. 361)-continued

1958, No. 109-The PoliceAct 1958 (R.S. Vol. 26,p. 669)

1960, No. 30-The Animals

Protection Act 1960 (R.S.Vol. 6, p. 1)

1962, No. 135-The Trans-

port Act 1962 (R.S.Vol. 16, p. 659)

1965, No. 23-The Radia-tion Protection Act 1965

(R.S. Vol. 18, p. 673)

Amendment

By inserting in section 9 (4), after the words.

'Justice of the Peace", the words orCommunity Magistrate".

By inserting in section 9 (4), after the words"the Justice", the words "or CommunityMagistrate".

By omitting from section 38 (1), and alsofrom section 38 (2), the words "or Jus-tice", and substituting in each case thewords ", Justice, or Community Magis-trate".

By inserting in subsection (1) of section 39(as amended by section 2 (1) of the PoliceAmendment Act 1995), and also in sub-section (2) of that section (as soamended), after the word 'lustice,", thewords "Community Magistrate,".

By insertinF in section 50 (2), after the word'lustice', the words "or CommunityMagistrate".

By insertinF in section 58 (1), after the wordyustice', the words "or CommunityMagistrate".

By inserting in the proviso to section 10 (1),after the word "Justice", the words "orCommunity Ma*trate".

By insertinF in section 10 (3), after the word"Justice', the words "or CommunityMagistrate".

By inserting in the proviso to section 10 (5),"after the word "Justice", the words or

Community Magistrate".By inserting in section 194 (2) (as substi-

tuted by section 26 of the TransportAmendment Act 1968), after the words"Justices of the Peace", the words "orone or more Community Magistrates".

By inserting in section 24 (2), after thewords 'ITustice of the Peace", the words"or Community Magistrate".


39

40

Title of Act




1965, No. 44-The Extradi-tion Act 1965 (R.S.Vol. 18, p. 113)

1967, No 129-The Costs inCriminal Cases Act 1967

(R.S. Vol. 18, p. 77)1974, No. 26-The Danger-

ous Goods Act 1974 (R.S.Vol. 24, p. 241)

1974, No. 66-The LocalGovernment Act 1974

(R.S. Vol. 25, p. 1)

1975, No. 1-The StatisticsAct 1975 (R.S. Vol. 26,p. 791)

1977, No. 84-The Gamingand Lotteries Act 1977

(R.S. Vol. 33, p. 17)

1977, No. 111-The WildAnimal Control Act 1977

(R.S. Vol. 33, p. 957)

Amendment

By inserting in sections 7 and 8, after thewords "or Justice" wherever they occur,the words "or Community Magistrate".

By inserting in section 8 (4), after the word'justice",the words "or CommunityMagistrate".

By inserting in section 20 (1), after thewords "Justice of the Peace", the words"or Community Magistrate".


By omitting from section 700 (as enactedby section 2 of the Local GovernmentAmendment Act 1979) the words "orJUS-tice", and substituting the words ", JUS-tice, or Community Magistrate".

By inserting in section 701 (2) (as enactedby section 2 of the Local GovernmentAmendment Act 1979), after the word"Justice", the words "or CommunityMagistrate".

By inserting in section 35 (3), after the word'lustice", the words "or CommunityMagistrate".

By omitting from section 117 (1) the words„or Jstice", and substituting the words", justice, or Community Magistrate".

By inserting in the First Schedule, after thewords "ustice of the Peace", the words"or Community Magistrate".

By inserting in section 12 (11), after thewords "or Justice of the Peace" (asinserted by section 6 of the Wild AnimalControl Amendment Act 1979), thewords "or Community Magistrate".

By inserting in section 13 (6), and also insection 13 (7), after the words "orJusticeof the Peace" (as inserted by section 6 ofthe Wild Animal Control Amendment

Act 1979), the words "or CommunityMagistrate".

By inserting in the rviso to section 14 (2),after the words ' or Justice of the Peace"(as inserted by section 6 of the WildAnimal Control Amendment Act 1979),the words "or Community Magistrate".

Title of Act




1978, No. 13-The MassageParlours Act 1978 (R.S.Vol. 34, p. 735)

1978, No. 65-The Misuse

of Drugs Amendment Act1978 (R.S. Vol. 26, p. 618)

1978, No. 80-The MarineMammals Protection Act

1978 (R.S. Vol. 34, p. 709)

1980, No. 94-The FamilyProceedings Act 1980 (R.S.Vol. 28, p. 545)

1981, No. 23-The JuriesAct 1981

1981, No. 28-The Boxingand Wrestling Act 1981

1983, No. 14-The FisheriesAct 1983 (R.S. Vol. 27,p. 137)

1986, No. 5-The Com-merce Act 1986 (R.S.Vol. 31, p. 71)

1986, No. 6-The Transport(Vehicle and Driver Regis-tration and Licensing) Act1986

Amendment

By ornitting from section 36, and also fromsection 37, the words "or Justice", andsubstituting in each case the words ", JUS-tice, or Community Magistrate".

By inserting in the First Schedule, and alsoin the Second Schedule, after the words

'Ilustice of the Peace", the words "orCommunity Magistrate".

By inserting in section 34 (as amended bysection 11 (1) of the Misuse of DrugsAmendment Act (No. 2) 1978), after theword 'Justice" in both places where itoccurs, the words "or Community Magis-trate".

By inserting in section 14 (1), after thewords yustice of the Peace", the words"or Community Magistrate".


By inserting in section 138 (3) (a), after theword "Justice", the words "or Commu-nity Magistrate".

By omitting from section 8 (C) the words"and District Court Judges", and substi-tuting the words "District Court Judges,and Community Magistrates".

By inserting in section 9, after the word'Justice", the words "or CommunityMagistrate".

By inserting in section 79 (2), and also insection 79(2A)(b) (as inserted bysection 23 of the Fisheries Amendment

Act 1991), after the word 'lustice"wherever it appears, the words "or Com-munity Magistrate".

By omitting from section 98A (2) (as enactedby section 84 of the Commerce Amend-ment Act 1990) the words "or Justice",and substituting the words ", Justice, orCommunity Magistrate".

By inserting in section 5OA (as inserted bysection 10 of the Transport (Vehicle andDriver Registration and Licensing)Amendment Act 1987), after the word'Justices", the words "or one or moreCommunity Magistrates".

41

42

Title of Act




1986, No. 121--The Fair

Trading Act 1986

1987, No. 15-The Weightsand Measures Act 1987

1987, No. 178-The Fencingof Swimming Pools Act1987

1988, No. 97-The RatingPowers Act 1988

1989, No. 18-The Trade in

Endangered Species Act1989

1989, No. 24-The Children,

Young Persons, and TheirFamilies Act 1989

Amendment

By inserting in section 47 (2) (as enacted bysection 3 of the Fair Trading Amend-ment Act 1990), after the word "JUS-tice,", the words "or CommunityMagistrate,".

By omitting from section 28 (3) the words„or Justice", and substituting the words", Justice, or Community Magistrate".

By inserting in the definition of the term'{judicial offcer" in section 2, after theword "justice,", the words "CommunityMagistrate,".

By inserting in section 204, after the wordJustice", the words "or Community

Magistrate".By inserting in section 38 (2), after the

words "Justice of the Peace", the words"or Community Magistrate".

By inserting in section 39 (1), and also insection 40 (1), after the word 'Yustice",the words "or any Community Magis-trate".

By inserting in section 274 (2) (a), after theword 'lustices" , the words "or by one ormore Community Magistrates".

By inserting in section 278 (1), after the"

word Justice", the words "or Commu-nity Magistrate".

By inserting in section 321 (5) (as added bysection 40 of the Children, Young Per-sons, and Their Families AmendmentAct 1994), after the word 'Justice", thewords "or Community Magistrate".

By inserting in section 355 (2) (c), after theword 'lustices", the words "or Commu-nity Magistrate or Community Magis-trates".

By inserting in section 386 (1), after theword "Justice", the words "or Commu-nity Magistrate".

By inserting in subsections (2) to (4) ofsection 4458 (as inserted by section 2 (1)of the Children, Young Persons, andTheir Families Amendment Act 1996),after the word "ustice," wherever itappears, the words "Community Magis-trate,".

Title of Act




1989, No. 24-The Children,

Youns Persons, and TheirFamihes Act 1989-con-

tinued

1989, No. 63-The Sale of

Liquor Act 1989

1989, No. 80-The Educa-tion Act 1989 (R.S.Vol. 34, p. 17)

1989, No. 148-The Radio-communications Act 1989

Amendment

By omitting from clause 2 (d) of the FirstSchedule the words "A Justice shall not",and substituting the words "Neither aJustice nor a Community MagistrateInay..

By inserting in section 173 (1), after the66

word "Justices", the words or any oneor more Community Magistrates".

By inserting in section 174 (3), after theword "Justices", the words "or any oneor more Community Magistrates".


"(4) The Judge or the Justices or theCommunity Magistrate or CommunityMagistrates-

"(a) May revoke the order eitherunconditionally or subject tosuch conditions as the Judge orthe Justices or the CommunityMagistrate or CommunityMagistrates may think fit toimpose; or

"(b) May refuse to revoke the order."By omitting from section 177 (1) the words„or Justice", and substituting the words.

, Justice, or Community Magistrate".By inserting in section 177 (1), after the

word 'Yustice, " in the second placewhere it appears, the words "CommunityMagistrate, '.

By inserting in section 177 (4), after theword 'ustice,", the words "CommunityMagistrate,".

By inserting in section 318 (5), after thewords "Justice of the Peace,", the words"Community Magistrate,".

By omitting from section 120 (3) the words„or Justice", and substituting the words",Justice, or Community Magistrate".

43

44

Title of Act




1989, No. 148-The Radio-comrnunications Act

1989-continued

1990, No. 98-The Civil Avi-ation Act 1990 (R.S.Vol. 32, p. 1)

1990, No. 127-The Com-

modity Levies Act 1990

1991, No. 69-The Resource

Management Act 1991(R.S. Vol. 32, p. 131)

1991, No. 71-The LegalServices Act 1991

1992, No. 86-The MutualAssistance in Criminal

Matters Act 1992

1992, No. 122-The Electric-

ity Act 1992

1992, No. 124-The Gas Act1992

1993, No. 84-The Earth-

quake Commission Act1993

1993, No. 94-The Films,Videos, and PublicationsClassification Act 1993

Annendnnent

By inserting in section 120 (3), after theword 'ustice," in the second place

where it appears, the words "CommunityMagistrate, '.

By inserting in the definition of the term"judicial officer" in section 2, after thewords "aJustice,", the words "a Commu-nity Magistrate, .

By <insertin in section 19 (1), after the wordJustice, , the words "a Community

Magistrate,".By insertins in the form of search warrant

in the Schedule, after the words 'lusticeof the Peace or", the words "CommunityMagistrate or".

By inserting in section 334 (1), after theword "Justice", the words "or any Com-munity Magistrate".

By inserting in section 852A (2) (as enactedby section 25 of the Resource Manasement Amendment Act 1994), after theword "Justice", the words "or Commu-nity Magistrate".

By inserting in section 116 (3), after thewords yustice of the Peace,", the words"a Community Magistrate,".

By insertin in the defmition of the term"process' in section 2, after the word'Justice,",the words "Community Mag-istrate,".

By inserting in section 159 (1) (e), after theword yustice", the words "or Commu-nity Magistrate".

By omitting from section 50 (1) (e) thewords "or Justice", and substituting the

.

words , Justice, or Community Magis-trate".

By inserting in section 34 ( 1), after thewords "Justice of the Peace,", the words"Community Magistrate, .

By omitting from section 109 (1) the words„or Jstice", and substituting the words", Justice, or Community Magistrate".

Title of Act




1993, No. 94-The Films,Videos, and PublicationsClassification Act 1993-

continued

1993, No. 95-The Bio-

security Act 1993

1994, No. 104-The Mari-

time Transport Act 1994

1994, No. 119-The Antarc-

tica (Environmental Pro-tection) Act 1994

1994, No. 166-The TaxAdministration Act 1994

1996, No. 9-The FinancialTransactions ReportingAct 1996

1996, No. 13-The Dog Con-trol Act 1996

Amendment

By omitting from section 131 (4) (j), and also.

L-om section 131 (5) (e), the words or

Justice", and substituting in each case thewords ", Justice, or Community Magis-trate".

By inserting in section 110, and also insection 111 (1), after the word 'lustice,",

.

the words "a Community Magistrate, .By inserting in section 112 (1), after the

word "justice" in both places where itoccurs, the words "or Community Magis-trate".

By inserting in section 418 (2), after theword 'Justice", the words "or Commu-nity Magistrate".

By inserting in section 454, and also insection 455 (1), after the word "ustice,",the words "a Community Magistrate,".

By inserting in section 42 (1), after the wordJustice,", the words "a CommunityMagistrate,".

By inserting in the definition of the term'judicial officer" in section 16 (7), after

.

the word justice, , the words "Commu-nity Magistrate, .

By inserting in section 38 (2), and also insection 38 (4) (a), after the words 'lusticeof the Peace", the words "or a Commu-

nity Magistrate".By inserting in section 38 (3), after the

words "Justice of the Peace", the words"or Community Magistrate".

6,

By omitting from section 44 the words orJustice", and substituting the words.

, Justice, or Community Ma*trate".By inserting in section 14 (3) (ah after the

word "Justice" in both places where itappears, the words "or Community Mag-istrate".

By inserting in section 56 (3) (a), after theword "Justice" in both places where itappears, the words "or Community Mag-istrate".

45

46

Title of Act




1996, No. 13-The Dog Con-trol Act 1996-continued

1996, No. 27-The Customsand Fxcise Act 1996

1996, No. 30-The Hazard-ous Substances and New

Organisrns Act 1996

1996, No. 37-The ChemicalWeapons (Prohibition) Act1996

1996, No. 40-The Ozone

Layer Protection Act 1996

1996, No. 88-The FisheriesAct 1996

Amendment

By inserting in section 57 (3) (b), after theword "Justice" in both places where itappears, the words "or Community Mag-istrate".

By inserting in subsections (6) to (8) ofsection 149, after the words "ustice ofthe Peace" wherever they appear, thewords "or Community Magistrate".

By inserting in section 167 (1), after thewords 'Justice of the Peace", the words"or Community Magistrate".

By inserting in subsections (5) to (7) ofsection 168, after the words "Justice ofthe Peace" wherever they appear, thewords "or Community Magistrate".

By inserting in subsections (1), (4), and (8) ofsection 171, after the words "or Justice"wherever they appear, the words

64

or

Community Magistrate".By inserting in section 119 (1), after the

words ustice of the Peace", the words"or Community Magistrate".

By inserting in section 119 (3), after thewords "Justice of the Peace,", the words"Community Magistrate,".

By insertin in section 23 (2), after the word.y

JUStlCe, ', the words "a CommunityMagistrate,".

By inserting in section 23 (1), after thewords "or Justice", the words "or Com-munity Magistrate".

By insertin in section 23 (8), after the wordyustice,, the words "Community Mag-istrate,".

By inserting in subsections (1) to (3) ofsection 200, after the word "Justice,"wherever it appears, the words "Commu-nity Magistrate, .

By inserting in the Seventh Schedule, afterthe expression "ustice of the Peace/",the expression "Community Magis-trate/".


SCHEDULE 2 Section 63

NEW SCHEDULE 2A OF SUMMARY PROCEEDINGS ACT 1957

SCHEDULE 2A Section 114A (3)

MODIFICATIONS OF PART Iv WHERE APEAL IS FROM DISTRICT COURT

PRESIDED OVER BY COMMUNITY MAGISTRATE OR COMMUNrrY MAGISTRATES

TO DISTRICT COURT PRESIDED OVER BY DISTRICT COURT JUDGE

Section Modified

Section 107

Section 109

Modification

By omitting subsection (1), and substitutingthe following subsection:

"(1) Where any information or com-

plaint has been determined by a DistrictCourt presided over by a CommunityMagistrate or 2 or more CommunityMagistrates, either party may, if dissatis-fied with the determination as being erro-neous in point of law, appeal to a DistrictCourt presided over by a District CourtJudge by way of case stated for the opin-ion of that Court on a question of laworay."

By omitting from subsections (3) and (4) thewords "District Court Judge or justice orJustices" wherever they appear, and sub-stituting in each case the words "Com-munity Magistrate or CommunityMagistrates".

By omitting from subsection (5) the words"the District Court Judge or any Justice",

and substitutin the words "any Commu-nity Magistrate '.

By omitting subsections (6) and (7), and sub-stituting the following subsections:

"(6) Where the case has been settled

and «ned, the Registrar shall make acopy oi the case available to each party.

"( 7) The Registrar shall set the casedown for hearing on the first practicablesitting day and shall notifj, the parties tothe appeal of the time and placeappointed for the hearing."

By omitting from subsection (8) the words"District Court Judge or Justice or JUS-tices", and substituting the words "Com-munity Magistrate or CommunityMagistrates".

By omitting this section, and substitutingthe following section:

"109. Frivolous appeals-(1) If theCommunity Magistrate or CommunityMagistrates are of the opinion that the

47



NEW SCHEDULE 2A OF SUMMARY PROCEEDINGS ACT 195 7-continued

SCHEDULE YA-continued

MODIFICATIONS OF PART Iv WHERE APPEAL IS FROM DISTRICT COURT PRE-

SIDED OVER BY COMMUNITY MAGISTRATE OR COMMUNITY MAGISTRATES TO

DISTRICr COURT PRESIDED OVER BY DISTRICT COURT JUDGE-continued

Section Modified

Section 109-continued

Section 111

Modification

appeal is merely frivolous, but not other-wise, the Community Magistrate or Com-munity Magistrates may refuse to state acase, and shall, on the request of theapplicant for the case, sign and deliver tothe applicant a certificate of that refusal.

"(2) Where the Community Ma#strate

or Community Magistrates reiuse tostate a case, the applicant for the casemay apply to a Court presided over by aDistrict Court Judge for an order requir-ing the Community Magistrate or Com-munity Magistrates to state a case. Acopy of the application shall be served onthe Community Magistrate or Commu-nity Magistrates and on the other party,and any such Community Magistrate andthat other party may appear and beheard.

"(3) The District Court to which an

application under subsection (2) is made may,it it thinks flt, make an order requiringthe Community Magistrate or Commu-nity Magistrates to state a case, and theCommunity Magistrate or CommunityMagistrates on being served with theorder shall state a case accordingly. Costsmay be allowed on the application, butshall not be allowed against any Commu-nity Magistrate."


"111. Case may be sent back foramendment-A District Court presidedover by a District Court Judge may, if itthinks flt, cause a case stated to be sentback for amendment, and it shall be the

duty of the Community Magistrate orCommunity Magistrates to amend thecase accordingly and return it to the Dis-trict Court."




SCHEDULE PA-continued

continued

MODIFICATIONS OF PART Iv WHERE APPEAL IS FROM DISTRICT COURT PRE-SIDED OVER BY COMMUNITY MAGISTRATE OR COMMUNITY MAGISTRATES TO

DISTRICT COURT PRESIDED OVER BY DISTRICT COURT JUDGE-continued

Section Modified

Section 112

Section 113

Section 114

Section 115

Section 115A (as inserted bysection 5 (1) of the Sum-mary Proceedings Amend-ment Act 1969)

Modillcation

By omitting the words "The Hih Courtshall", and substituting the words "A Dis-trict Court presided over by a DistrictCourt Judge shall".

By omitting paragraph (b), and substitutingthe following paragraph:

"(b) Remit the matter to the Commu-nity Magistrate or CommunityMagistrates with the opinion ofthe District Court thereon; or".


"113. Appeal on point of law maybe removed into High Court-A Dis-trict Court presided over by a DistrictCourt Judge rnay order the removal intothe High Court of any case transmittedto that District Court under section 107,

and on the removal the High Court shallhave the same power to adjudicate on

the proceedings as that District Courthad.

By omitting the words "the High Courtagainst", and substituting the words "aDistrict Court presided over by a DistrictCourt Judge against".

By omitting the words "the High Courtgrants", and substitutins the words "sucha District Court grants'.

By inserting in subsection (1), after thewords "District Court", the words "pre-sided over by a Community Magistrateor Community Magistrates".

By omitting from subsection (1) the words"the High Court", and substituting thewords "a District Court presided over bya District Court Judge".

By inserting in subsection (1), after thewords "a District Court", the words "pre-sided over by a Community Magistrateor Community Magistrates".

49



NEW SCHEDULE 2A OF SUMMARY PROCEEDINGS ACT 1957 -continued

SCHEDULE 2A-Continued

MODIFICATIONS OF PART Iv WHERE APPEAL IS FROM DISTRICT COURT PRE



Section Modified

Section 115A (as inserted bysection 5 (1) of the Sum-mary Proceedings Amend-nnent Act 1969)-continued

Section 1158 (as inserted bysection 12 (1) of the Sum-mary Proceedings Amend-ment Act 1976)

Section 115c (as inserted bysection 2 of the SummaryProceedings AmendmentAct (No. 5) 1985)

Modification

By ornitting from subsection (1) the words"the High Court", and substituting thewords "a District Court presided over bya District Court Judge".

By ornitting from subsection (3) the words"by the High Court", and substitutingthe words "by a District Court presidedover by a District Court Judge".

By omitting the words "of the High Court",and substituting the words "of the Dis-trict Court".

By omitting the words "the Hih Court",and substituting the words 'a DistrictCourt presided over by a District CourtJudge",


"115c. Rights of appeal againstdecisions relating to publication ofreports of proceedings or identifyingparticulars-(1) Where a District CourtPFesided over by one or more Commu-nity Magistrates makes a decision on anapplication for an order under paragraph(a) or paragraph (b) of section 138 (2), orunder section 140, of the Criminal JusticeAct 1985 forbidding publication of anyreport of the proceedings or of any iden-titying particulars, the applicant for theorder or the informant may appeal to aDistrict Court presided over by a DistrictCourt Judge against the decision.

"(2) Where the decision of the DistrictCourt presided over by one or moreCommunity Magistrates is to refuse tomake the order sought, that DistrictCourt must, on being satisfied that an




SCHEDULE 2A-continued

continued




Section Modified

Section 115c (as inserted bysection 2 of the SummaryProceedings AmendmentAct (No. 5) 1985)-con-tinued

Section 1150 (as substitutedby section 11 of the Sum-mary Proceedings Amend-ment Act (No. 2) 1991)

Modification

appeal against that decision is to bebrought under this section, make aninterim order to the effect sought by theapplicant; and that interim order con-tinues in force-

"(a) Until the expiry of the period pre-scribed by section 116 of thisAct for the filing of notice ofthe appeal; or

"(b) If notice of the appeal is fledwithin that prescribed period,until the appeal is finally dis-posed of, or withdrawn, orabandoned.

"(3) The provisions of sections 116 to144 of this Act, as far as they are applica-ble and with the necessary modifications,apply to any such appeal as if the deci-sion of the District Court presided overby one or more Community Magistrateswere an order made on sentence."


"1159. Rights of appeal againstdecisions relating to bail-(1) Where aCommunity Magistrate or CommunityMagistrates refuse to grant bail to adefendant (whether before or after con-viction), the defendant may appeal to aDistrict Court presided over by a DistrictCourt Judge against that refusal.

"(2) Where a Community Magistrateor Community Magistrates Brant bail toany defendant (whether before or afterconviction), the informant may appeal toa District Court presided over by a Dis-trict Court Judge against the decision.

51





continued

MODIFICATIONS OF PART Iv WHERE APPEAL IS FROM DISTRICT COURT PRE·

SIDED OVER BY COMMUNITY MAGISTRKrE OR COMMUNITY MAGISTRATES TO


Section Modified

Section 115D (as substitutedby section 11 of the Sum-mary Proceedings Amend-ment Act (No. 2) 1991)-continued

Modification

"(8) Where, in respect of any grant ofbail to a defendant (whether before orafter conviction),-

"(a) A Community Magistrate or Com-munity Magistrates have

imposed any condition of bail,or have refused to impose anycondition of bail, or any parti-cular condition of bail; or

"(b) A Community Magistrate or Com-munity Magistrates have, on anapplication made under sectionSOA (1), made an order varyingor revoking any condition ofbail or substituting or imposingany other condition of bail, orrefused to make such an

order,-

the defendant or the informant mayappeal to a District Court presided overby a District Court Judge against theimposition of that condition of bail or, asthe case may be, against that refusal oragainst the decision in respect of theapplication.

"(4) For the purposes of any appealunder this section, the failure of a Com-

munity Magistrate or Community Magis-trates to impose any condition or bail, orany particular condition of bail, on anyoccasion on which any such conditioncould lawfully have been imposed isdeemed to be a refusal to impose such acondition.

"(5) Nothing in this section limits oraffects the jurisdiction of the High Courtto hear arla determine an application for





continued

MODIFICATIONS OF PART Iv WHERE APPEAL IS FROM DISTRICT COURT PRE-SIDED OVER BY COMMUNITY MAGISTRATE OR COMMUNTrY MAGISTRATES TO


Section Modified

Section 115D (as substitutedby section 11 of the Sum-mary Proceedings Amend-ment Act (No. 2) 1991)-continued

Section 115E (as enacted bysection 11 of the Sum-

mary Proceedings Amend-ment Act (No. 2) 1991)

Section 116 (2)

Section 117

Section 118

Modification

bail by a person who has been refusedbail by a District Court Judge or Justiceor Community Magistrate."

By omitting from subsection (4) the words"District Court Judge or Justice or jus-tices", and substituting the words "Com-munity Magistrate or CommunityMagistrates".


By omitting from subsection (6) (as addedby section 6 of the Summary ProceedingsAmendment Act 1995), the words "theHigh Court", and substituting the words"a District Court presided over by a Dis-trict Court Judge'.

By omitting the words "District CourtJudge or Justice or Justices", and substi-tuting the words "Community Magis-trate or Community Magistrates".

By omitting this section.By omitting this section, and substituting

the following section:"118. Setting down appeal for hear-

ing-The Registrar who receives thenotice of appeal-

"(a) Must set the appeal down for hear-ing before a District CourtJudge on the first practicablesitting day; and

"(b) Must notify, or cause to be noti-fled, the parties to the appeal

53





continued



DISTRICT COURT PRESIDED OVER BY DISTRICT COURT JUDGE-Continued

Section Modified


Section 119

Modification

of the time and placeappointed for the hearing."


"119. Procedure on appeal-(1) Allgeneral appeals must be by way ofrehearing.

"(2) Where any question of fact isinvolved in any appeal, the evidencewhich was taken in the District Court

presided over by one or more Commu-nity Magistrates and which bears on thequestion must, unless the District Courthearing the appeal otherwise directs, bebrought before the District Court hearingthe appeal as follows:

"(a) As to any evidence given orally, bythe production of any note

made by the Community Mag-istrate or Community Magis-trates or such other materials

as the District Court hearingthe appeal considers expedient:

"(b) As to any evidence taken by aff-davit and as to any exhibits, bythe production of the affidavitsand of such of the exhibits as

may have been forwarded bythe Resistrar of the Courtappealed from and by the pro-duction by the parties to theappeal of such exhibits as are intheir custody:

"(c) As to any evidence taken undersection 81 (which relates to tak-ing the evidence of a defencewitness at a distance) or undersection 32 (which relates to tak-ing the evidence of a personabout to leave the country), orto any statement admitted





continued


SIDED OVER BY COMMUNNY MAGISTRATE OR COMMUNITY MAGISTRATES TO


Section Modified


Section 120

Section 121

Modification

under section 33 (which relatesto the admissibility of a state-ment made by a person who isseriously ill), by the productionof a copy of that evidence orstatement:

"Provided that the District Court hearingthe appeal may in its discretion rehearthe whole or any part of the evidence,and must rehear the evidence of any wit-ness if the Court has reason to believe

that any note of the evidence of that wit-ness made by the Community Magis-trates or Community Magistrates is ormay be incomplete in any material parti-cular.

"(3) The District Court hearing theappeal has full discretionary power tohear and receive further evidence, if thatfurther evidence could not in the circum-

stances have reasonably been adduced atthe hearing, and for that purpose has thesame jurisdiction and authority to makeany order under section 31 or section 32as the Court from whose decision the

appeal is made."

By omitting the words "Hih Court", andsubstituting the words 'District Courthearing the appeal".

By omitting from subsection (1) the words"The High Court", and substituting thewords "A District Court presided over bya District Court Judge".

By omitting from subsections (2) to (6) thewords "the High Court" wherever theyappear, and substituting in case thewords "a District Court presided over bya District Court Judge".


55



NEW SCHEDULE 2A OF SUMMARY PROCEEDINGS AC'r 1957


continued

MODIFICATIONS OF PART Iv WHERE APEAL IS FROM DISTRICT COURT PRE·



Section Modified


Section 123

Section 124

Section 125

Modification

"( 7) Either party may, in accordancewith sedion 1144 (4), appeal to the HighCourt against any determination of a Dis-trict Court presided over by a DistrictCourt judge on any general appeal."


"123. Powers of District Court

Judge as to extension of time-(1) Any District Court Judge may, on theapplication of the appellant or intendingappellant, extend any time prescribed orallowed under this Part for the flling ofany notice or the stating of any case orthe doing of any other thing in respect ofany appeal or proposed appeal to a Dis-trict Court presided over by a DistrictCourt Judge.

"(2) Any appellant or intending appel-lant may at any time apply to a DistrictCourt Judge to review any decision of aCommunity Maistrate or CommunityMagistrates refusing an extension of timefor the stating of a case under this Part.On any such application a District CourtJudge may, in his or her discretion, con-firm the decision, or reverse it and allowsuch extension of time as he or she thinks

fit."

By omitting from subsections (2), (4), and (5)the words "District Court Jude or Jus-tice or Justices have certified that it hasnot been prosecuted or the Registrar ofthe High Court" wherever they appear,and substituting in each case the words"Community Magistrate or CommunityMagistrates have certified that it has notbeen prosecuted or the Registrar".






continued




Section Modified


Section 128

Section 129

Section 130

Modification

"(1) Subject to section 80 of the Misuseof Drugs Amendment Act 1978 and tosection 818 of the Crimes Act 1961, an

appellant who is in custody under theconviction to which the appeal relates isbailable, at any time before the hearingof the appeal, at the discretion of theCommunity Magistrate or CommunityMagistrates who presided over the Courtwhose deterrnination is appealed against,or, if that Community Magistrate orthose Community Magistrates are notavailable, at the discretion of a District

Court Judge or Justice or some otherCommunity Magistrate."

By ornitting from subsection (2) (as substi-tuted by section 8 (2) of the SummaryProceedings Amendment Act (No. 2)1987) the words "High Court", and sub-stituting the words "District Court".

By inserting, after the word "Justice"wherever it occurs, the words "or Com-

munity Magistrate".By omitting the words "High Court" in the

first place they appear, and substitutingthe words "District Court".

By omitting the words "the High Court" inthe second place where they appear, andsubstituting the words "a District Courtpresided over by a District Court Judge".


By omitting from subsection (2) the words"the High Court", and substituting thewords "a District Court".


57



NEW SCHEDULE 2A OF SUMMARY PROCEEDINGS ACT 1957-continued





Section Modified


Section 131

Section 132

Section 133

Section 134

Section 135

Modification

By omitting from subsection (4) the words"the High Court" in the first place wherethey appear, and substituting the words"a District Court presided over by a Dis-trict Court Judge'.

By ornitting from subsection (4) the words"the High Court" in the second placewhere they appear, and substituting thewords "a District Court".

By omittins from subsection (5) the words"the High Court" in the first place wherethey appear, and substituting the words"a District Court presided over by a Dis-trict Court Judge'.

By omitting from subsection (5) the words"the High Court" in the second placewhere they appear, and substituting thewords "a District Court".

By omitting this section.By omitting from subsection (1) the words

"the High Court" in the first 2 placeswhere they appear, and substituting ineach case the words "a District Court

presided over by a District Court Judge".By omitting subsections (1) (b) and (2).By omitting the words "the High Court" in

both places where they appear, and sub-stituting in each case the words "a Dis-trict Court presided over by a DistrictCourt judge '.

By omitting the words "High Court" inboth places where they appear, and sub-stituting in each case the words "DistrictCourt".


"135. Execution of decision on

appeal-(1) Where on any appeal a Dis-trict Court presided over by a DistrictCourt Judge confirms any conviction,sentence, order, or amount of any sum to



NEW SCHEDULE 2A OF SUMMARY PROCEEDINGS ACT 1957 -continued

SCHEDULE FA-continued




Section Modified


Modification

be paid, or where the appeal is dismissedfor non-prosecution, or where a certifi-cate has been Biven under section 107that the appeal has been not been prose-cuted, the aecision appealed against shallbe enforced.

"(2) Where on any appeal a DistrictCourt presided over by a District CourtJudge sets aside or reverses any convic-tion or other determination, or amends

any conviction or other determination, orquashes or varies any sentence or order,or increases or reduces the amount of

any sum ordered to be paid, the Regis-trar of the District Court shall make in

the entry in the Criminal Record Bookkept pursuant to section 71 of this Actrelating to the decision appealed againsta note of the decision on the appeal.

"(3) In any case to which subsection (21applies, the decision on the appeal or thedecision appealed against as amended orvaried by the decision on the appeal, asthe case may be, takes effect as a deci-sion of the District Court:

"Provided that where a District Court

presided over by a District Court Judgeimposes a sentence of detention, the war-rant to be issued under section 143 of the

Criminal Justice Act 1985 must be signedby a District Court Judge:

"Provided also that where, on an

appeal under section 115D, a DistrictCourt presided over by a District CourtJudge determines that bail should not begranted or, as the case may be, shouldnot be continued, a warrant for the

detention of the defendant in custodymust be issued out of the District Court

and signed by a District Court Judge; andthe person who executes that warrant

59




SCHEDULE 2A-Continued

continued

MODIFICATIONS OF PART Iv WHERE APPEAL IS FROM DISTRICT COURT PRESIDED OVER BY COMMUNITY MAGISTRATE OR COMMUNITY MAGISTRATES TO


Section Modified


Modification

must ensure that a copy of the notice ofthe result of the appeal is given to thedefendant when the warrant is executed

or as soon as practicable after the war-rant is executed.

"(SA) Where, on any appeal in respectof any condition of bail, a District Courtpresided over by a District Court Judgevaries or revokes any condition of bail orsubstitutes or imposes any other condi-tion of bail, the following provisionsapply:

(a) If the defendant is present at theCourt to which the appeal wasmade, the Registrar of thatCourt must forthwith prepare anew notice of bail setting outthe conditions of bail as so

amended (if any), satisfy him-self or herself that the defen-

dant understands the

conditions of bail, and requirethe defendant to sign the noticeof bail:

"(b) If the defendant is not present atthe Court to which the appealwas made, the Registrar or theCourt appealed from mustsend written notice to the

defendant requiring him or herto attend at a specified timeand place for the execution of afresh notice of bail containinthe conditions (if any) requireato give effect to the decision onthe appeal.

"(4) Where a party to an appeal haspaid a flne in accordance with a sentenceof a District Court presided over by aCommunity Magistrate or Community





continued

MODIFICATIONS OF PART Iv WHERE APEAL IS FROM DISTRICT COURT PRE-



Section Modified


Section 136

Modification

Magistrates and on the determination ofthe appeal-

"(a) That party's conviction is set aside;or

"(b) The sentence is quashed and anyother sentence imposed is notfor the payment of a fine or isfor the payment of a srnallerfne; or

"(c) The sentence is varied by a reduc-tion in the amount of the fine

imposed,-that party shall be entitled, subject to theorder of the District Court that heard the

appeal, to a return of the sum paid orpart thereof, as the case may be. For thepurposes of this subsection the termfine' includes any costs or other moneyordered by the Court to be paid on theconviction of that party."


"(1) Where the decision of a DistrictCourt presided over by a District CourtJudge on any aBpeal has been given, orwhere an appeat has been dismissed fornon-prosecution or a certificate has beenFiven under section 107 that an appealnas not been prosecuted, any person whois liable under that decision or, as the

case may be, under the decision appealedfrom to be detained in custody and whois not in custody may be arrested withoutwarrant by any constable or any officerof a penal institution."

By omitting subsections (2) and (3).By omitting subsection (4), and substituting

the following subsection:"(4) Where under section 107 a Com-

munity Magistrate or Community Mais-trates have certified that an appeal hasnot been prosecuted, the Registrar of the

61



NEW SCHEDULE 2A OF SUMMARY PROCEEDINGS ACT 195 7-continued


MODIFICATIONS OF PART Iv WHERE APPEAL IS FROM DISTRICT COURT PRE



Section Modified


Section 137 (as substitutedby section 23 (1) of theSummary ProceedingsAmendment Act 1993)

Section 138

Section 144

Modification

District Court from which the appeal wasmade must send that certificate to the

Superintendent of the penal institution atwhich any party to the appeal isdetained. Where an appeal has been dis-missed for non-prosecution, the Registrarof the District Court to which the appealwas made must send a certificate to that

effect to the Superintendent."By inserting in subsection (1), after the

words "a District Court", the words "pre-sided over by a Commun* Magistrateor Community Magistrates' .

By ornitting from subsection (1) the words"High Court", and substituting the words"Court that determines the appeal".

By omitting from subsection (2) the words"the District Court has", and substitutingthe words "a District Court presided overby a Community Magistrate or Commu-nity Magistrates has".

By insertin in subsection (2), after the word'Justices ; the words "or CommunityMagistrate or Community Magistrates".

By omitting from subsection (3) the words"a District Court has", and substitutingthe words "a District Court presided overby a Community Magistrate or Commu-nity Magistrates has".

By omitting from subsection (3) the words"the H{gh Court", and substituting thewords a District Court".

By omitting from subsection (2) the words"The High Court", and substituting thewords "A District Court presided over bya District Court Judge".

By omitting this section.

WELLINGTON, NEW ZEALAND: Published under the author*y of theNew Zealand Government-1997 30210 -97*IS

P.CO. 40»

(i) The maximum term of imprisonment (if any) that can be ... · Penal Institutions Act 1954 or to...

Documents

Transcript of (i) The maximum term of imprisonment (if any) that can be ... · Penal Institutions Act 1954 or to...