Western Australian Numbered Acts Western Australian Numbered Acts[s. 23, 85]
In this Schedule,
unless the contrary intention appears —
“receiving” means the offence under
The Criminal Code section 414;
“stealing” means the offence under The
Criminal Code section 378.
Division 2 — Contents of prosecution notices and indictments
(1) A prosecution
notice or indictment must not allege both an indictable offence and a simple
offence.
(2) A prosecution
notice or indictment must relate to one accused only, unless clause 7 or
another written law permits otherwise.
(3) A prosecution
notice or indictment must contain one charge only, unless clause 7 or
another written law permits otherwise.
(4) A charge must
allege one offence only, unless clause 8 or another written law permits
otherwise.
(5) If a prosecution
notice or indictment contains more than one charge, each charge must be in a
separate and consecutively numbered paragraph.
(6) An indictment must
list the witnesses who the prosecutor intends to summons to give evidence in
any trial of the indictment.
3. Prosecutor to be identified
(1) A prosecution
notice must identify the prosecutor.
(2) For the purposes
of subclause (1) it is sufficient for a prosecution notice —
(a) if a
prosecution is being commenced by a police officer, to name the “WA
Police” as the prosecutor;
(b) if a
prosecution is being commenced by a person who is acting in the course of his
or her duties as a public authority or as an employee of a public authority,
or who is authorised by a public authority to commence the prosecution, to
name the public authority as the prosecutor,
if the prosecution
notice identifies the individual who issues the notice and is signed in
accordance with section 23(3).
(3) An indictment must
be commenced in the name of the State of Western Australia.
(1) A prosecution
notice or indictment must identify the accused —
(a) if
the accused is an individual, by means of the accused’s full name and,
if known, date of birth and usual place of residence;
(b) if
the accused is a corporation, by means of its name and, if it has one, the ACN
given to it under the Corporations Act 2001 of the Commonwealth.
(2) If the
circumstances so require, an accused who is an individual may be identified,
additionally or alternatively to the requirements of subclause (1)(a), by
one or more of the following —
(a) a
photograph of the accused, attached to the prosecution notice or indictment;
(b) a
print of the accused’s hands (including fingers), feet (including toes),
or ears, that will identify him or her, attached to the prosecution notice or
indictment;
(c) a
reference to the accused’s DNA profile in the prosecution notice or
indictment.
5. Alleged offence to be described
(1) A charge in a
prosecution notice or indictment must inform the accused of the alleged
offence in enough detail to enable the accused to understand and defend the
charge, and in particular must —
(a)
describe the offence with reasonable clarity;
(b)
identify the written law and the provision of it that creates the offence;
(c)
identify with reasonable clarity —
(i)
the date when the offence was committed or, if the date
is not known, the period in which the offence was committed; and
(ii)
where the offence was committed;
(d) if
the offence is one against a person, identify the person concerned in
accordance with clause 6(2); and
(e) if
the offence relates to property, comply with clause 6(4) and (5).
(2) For the purposes
of subclause (1) —
(a) it
is sufficient to describe an offence in the words of the written law that
creates it;
(b) if
that written law states that alternative acts, omissions, capacities, or
intentions, constitute the offence, the alternatives may be set out;
(c) a
charge is not defective only because an element of the offence is not stated;
and
(d) it
is not necessary to allege —
(i)
any matter, or any particulars as to a person or thing,
that need not be proved; or
(ii)
the means or thing used to do an act constituting an
offence unless the means or thing is an element of the offence.
6. Alleging particular matters and offences
(1) In a charge,
figures and abbreviations may be used to express anything if they are usually
used to do so.
(2) If in a charge it
is necessary to identify a person other than the accused, it is sufficient to
refer to —
(a) the
person by any means that adequately identifies the person;
(b)
“a person unknown” if the person’s identity has not been
able to be ascertained;
(c) the
Commonwealth of Australia by “the Commonwealth”;
(d) a
State of the Commonwealth by the name of the State;
(e) a
Territory by the name of the Territory; and
(f) the
holder of a statutory office by the name of the office and not the holder.
(3) In a charge that
relates or refers to a document, it is sufficient to describe the document by
any name by which it is usually known or by reference to its subject matter or
effect.
(4) If in a charge it
is necessary to mention money, it is sufficient to mention the currency and
the amount without specifying whether it is in the form of coins, bank notes,
a cheque, or some other form.
(5) In a charge that
alleges an offence relating to property —
(a) it
is not necessary to allege the value of the property unless the
value —
(i)
is an element of the offence;
(ii)
is relevant for the purposes of deciding whether the
offence must or may be dealt with on indictment or summarily;
(iii)
is relevant for the purposes of a written law; or
(iv)
is relevant to the offence’s statutory penalty;
(b) it
is not necessary to allege who owned the property unless the identity of the
owner is an element of the offence or relevant to the offence’s
statutory penalty;
(c) if
who owned the property is being alleged and the property was co-owned, it is
sufficient —
(i)
to name one of the co-owners and to add “and
another” or “and others” as the case requires;
(ii)
if the co-owners are a body with a collective name, to
use the collective name without naming any one of the co-owners;
(d) if
who owned the property is being alleged and it is uncertain which of 2 or more
persons owned the property, it is sufficient to allege that the property was
owned by one or other of them without specifying which one; and
(e) if
who owned the property is being alleged and the property was leased or hired
to the accused, it is sufficient to allege the name of the person who leased
or hired the property to the accused.
(6) In a charge that
alleges an offence involving entering or being in a place it is not necessary
to describe the nature of the place, or to say how entry was gained to the
place, unless —
(a) it
is an element of the offence;
(b) it
is relevant for the purposes of deciding whether the offence must or may be
dealt with on indictment or summarily;
(c) it
is relevant for the purposes of a written law; or
(d) it
is relevant to the offence’s statutory penalty.
(7) A charge that
alleges an offence involving the administration or taking of an affirmation,
oath or engagement, or the making of a statutory declaration, need not allege
the words of the affirmation, oath, engagement or statutory declaration.
(8) In a charge that
alleges an offence involving the making of a demand or a threat it is
sufficient to state the purport of the words used to make the demand or threat
without stating the actual words used.
(9) A charge that
alleges an offence involving an intention to commit an offence need not
specify the actual offence intended.
(10) A charge that
alleges an offence involving deceit, fraud or dishonesty (whether those words
or others are used) need not allege the details of the deceit, fraud or
dishonesty.
(11) A charge that
alleges an offence involving the giving of false evidence, false information
or a false statement (whether those words or others are used) to a person or
body need not allege the jurisdiction of the person or body.
(12) In a charge that
alleges an offence involving the giving of false evidence, false information
or a false statement (whether those words or others are used) —
(a) it
is sufficient to allege the effect of the evidence, information or statement,
or as much of the effect as is material, without alleging the actual evidence,
information or statement given; and
(b) the
charge may allege that in the evidence, information or statement the accused
said 2 or more things that conflict irreconcilably, without specifying which
of them is false.
7. Multiple charges and multiple accused
(1) A prosecution
notice or indictment may charge 2 or more offences as alternatives to one
another.
(2) Unless 2 or more
charges are expressly said by a prosecution notice or indictment to be
alternatives to one another, they are not.
(3) A prosecution
notice or indictment may charge one or more persons with 2 or more offences if
the offences —
(a) form
or are a part of a series of offences of the same or a similar character;
(b) are
alleged to arise substantially out of the same or closely related acts or
omissions; or
(c) are
alleged to arise from a series of acts or omissions done or omitted to be done
in the prosecution of a single purpose,
and may do so without
alleging a connection between the offences.
(4) A prosecution
notice or indictment may charge 2 or more persons with —
(a)
committing the one offence;
(b)
aiding another person in committing the one offence, although at different
times;
(c)
counselling or procuring the commission of the one offence, although at
different times; or
(d)
being accessories after the fact to the one offence, although at different
times,
and may do so whether
or not the principal offender is one of the persons so charged or is charged
in the same prosecution notice or indictment.
(5) A prosecution
notice or indictment may charge one or more persons with any 2 or more of
these offences, as alternatives to one another —
(a) an
offence under The Criminal Code section 401(2) where the offence alleged
to have been committed is stealing;
(b)
stealing;
(c)
receiving,
if the property
concerned in each offence charged is the same or partly the same.
(6) A prosecution
notice or indictment may charge 2 or more persons with receiving the same
property, although at different times, and notwithstanding that the person who
obtained the property is not charged in the same prosecution notice or
indictment.
8. Multiple offences may be charged as one in some
cases
(1) If it is alleged
that a person committed more than one assault on one other person during one
incident, the person may be charged with one offence of assault, or of which
assault is an element, in respect of the other person.
(2) If in the case of
an offence of being illegally in possession of a thing (whether material or
non-material) it is alleged that a person was illegally in possession of more
than one of the things at one time, the person may be charged with one offence
of possessing all of the things.
(3) If it is alleged
that on more than one occasion over a period a person stole property, the
person may be charged with one offence of stealing all of the property as a
general deficiency comprised of various quantities of various property stolen
over the period.
(4) If —
(a) it
is alleged that on more than one occasion over a period a person stole
identifiable property; and
(b) it
is not reasonably practicable to identify —
(i)
which of the property or what quantity of the property
was stolen on each occasion; or
(ii)
from whom the property was stolen on each occasion,
the person may be
charged with one offence of stealing all of the property.
(5) If —
(a) it
is alleged that on more than one occasion over a period a person committed
receiving in relation to identifiable property; and
(b) it
is not reasonably practicable to identify which of the property or what
quantity of the property was received on each occasion,
the person may be
charged with one offence of receiving all of the property.
Division 3 — Effect of certain charges
9. Joined charges and accused to be tried together
(1) If one prosecution
notice or indictment contains 2 or more charges the charges must be tried
together unless a court orders otherwise under this Act.
(2) If one charge
charges 2 or more accused, they must be tried together unless a court orders
otherwise under this Act.
10. Charge of offence relating to property
If it is necessary to
prove the ownership of property and a charge complies with
clause 6(5)(d), it is sufficient to prove that the property was owned by
one or other of the persons at the relevant time without proving which was the
owner.
11. Charge of burglary, stealing or receiving
(1) In this clause,
unless the contrary intention appears —
“court” means —
(a) if a
charge is being tried by a court of summary jurisdiction or by a superior
court constituted by a judge without a jury, the court;
(b) if a
charge is being tried by a superior court constituted by a judge and a jury,
the jury instructed by a judge.
(2) On a
charge against one accused that complies with clause 7(5) —
(a) the
accused may be found guilty of any one of the offences;
(b) if
the court is satisfied that the accused committed one of the offences but is
unable to say which one, the court may find the accused guilty of the offence
that, in the court’s opinion based on the facts of the case, is the
least serious offence.
(3) On a
charge against 2 or more accused that complies with
clause 7(5) —
(a) each
accused may be found guilty of any one of the offences charged;
(b) any
accused who is found guilty need not be found guilty of the same offence as
any other accused who is found guilty;
(c) if
the court is satisfied that an accused committed one of the offences but is
unable to say which one, the court may find the accused guilty of the offence
that, in the court’s opinion based on the facts of the case, is the
least serious offence.