Western Australian Numbered Acts Western Australian Numbered Acts[s. 164]
In this Schedule,
unless the contrary intention appears —
“relevant court” , in relation to a
charge, means —
(a) if
the accused is committed to a superior court in relation to the charge, or if
an indictment containing the charge is lodged in a superior court, the
superior court;
(b)
otherwise, the court of summary jurisdiction in which the accused is charged;
“witness undertaking” means a written
undertaking entered into by a witness in accordance with an order made under
clause 2(4).
2. Witness may be imprisoned until trial
(1) When a witness in
relation to a charge attends a court (whether or not having been arrested) the
court may order that the witness be imprisoned until released at the trial of
the charge by the relevant court.
(2) A court must not
make an order under subclause (1) unless satisfied that —
(a) the
witness is likely to be able to give oral evidence, or to produce a record or
thing, that is relevant to the case; and
(b)
there are reasonable grounds to suspect that the witness would not obey a
witness summons if served with it.
(3) If a court makes
an order under subclause (1) the court must issue a warrant for the
witness’s imprisonment.
(4) If an order is
made under subclause (1), the relevant court may order that the witness
be released before the trial of the case concerned if —
(a) he
or she enters into a written undertaking to attend at the trial of the case or
at some other date set by the court —
(i)
to give oral evidence; or
(ii)
to produce to the court a record or thing specified in
the order;
and
(b) any
order made under subclause (5) is complied with.
(5) For the purposes
of ensuring a witness attends in accordance with his or her undertaking or in
the meantime does not obstruct, prevent, pervert or defeat the course of
justice, a court that makes an order under subclause (4) may make an
order that requires any or all of the following —
(a) the
witness to agree in his or her witness undertaking —
(i)
to forfeit a sum of money specified in the order if the
witness does not attend in accordance with his or her undertaking;
(ii)
to do or not to do anything specified by the court;
(b) the
witness to deposit with the court as a security —
(i)
the sum of money specified under paragraph (a)(i);
(ii)
a record or thing and the means by which it can be
realised if the witness does not attend in accordance with his or her
undertaking;
(c) one
or more sureties to each enter into a surety undertaking under which he or she
agrees to forfeit a sum of money specified in the order if the witness does
not attend in accordance with the witness’s undertaking;
(d) one
or more sureties to deposit with the court as a security —
(i)
the sum of money specified under paragraph (c);
(ii)
a record or thing and the means by which it can be
realised if the witness does not attend in accordance with the witness’s
undertaking.
(6) On the application
of the witness or on its own initiative, the relevant court may at any time
cancel a warrant to imprison a witness or amend or cancel an order made under
subclause (4) or (5).
(7) If a witness is no
longer required to give oral evidence or to produce a record or thing, the
relevant court must cancel the warrant to imprison the witness and make any
consequential orders needed in relation to any thing done under an order made
under subclause (5).
3. Witness undertakings, provisions about
(1) A witness
undertaking may be entered into before the judicial officer who made the order
requiring the undertaking or any person referred to in the Bail Act 1982
section 29.
(2) The person before
whom a witness undertaking is entered into must comply with the
Bail Act 1982 section 30 which applies, with any necessary changes,
as if the witness were a defendant and the witness undertaking were a bail
undertaking.
(3) The
Bail Act 1982 sections 31 and 32 apply, with any necessary changes,
in relation to a witness undertaking as if the witness were a defendant and
the witness undertaking were a bail undertaking.
(4) If the party that
applied for a witness summons or an arrest warrant for a witness, or a police
officer, has reasonable grounds to believe that the witness —
(a) will
not attend in accordance with a witness undertaking that the witness has made;
or
(b) has
contravened such a witness undertaking,
the party or police
officer may apply to the relevant court for an arrest warrant for the witness.
(5) If the relevant
court is satisfied there are reasonable grounds for the belief of the party or
police officer, the court may issue an arrest warrant for the witness.
(6) When the witness
is brought before the relevant court under the arrest warrant, the court may
make an order under this Schedule or order the witness to be released from
custody.
4. Witness undertaking, contravention of
(1) A witness who,
without a reasonable excuse, contravenes his or her witness undertaking
commits an offence.
Penalty: a fine of $12 000 or imprisonment
for 12 months.
(2)
Section 181(3), (4) and (5), with any necessary changes, apply in
relation to an offence under subclause (1).
(3) The
Bail Act 1982 sections 52 and 53 apply, with any necessary changes,
in relation to an offence under subclause (1), a witness, and a witness
undertaking, in the same way as they apply respectively in relation to an
offence under section 51(1) of that Act, a defendant, and a bail
undertaking.
(4) If a witness is
convicted of an offence under subclause (1), the Bail Act 1982
section 57 applies, with any necessary changes, in relation to the
witness, and the witness undertaking, in the same way as it applies
respectively in relation to a defendant, and a bail undertaking.
5. Surety undertakings, application of Bail Act
provisions to
The Bail Act 1982
Part VI (other than section 35(1)) applies, with any necessary changes,
in relation to any surety undertaking required by an order made under
clause 2(5)(c) in the same way as it applies in relation to a surety
undertaking required by a grant of bail under that Act.
6. Application of other Bail Act provisions
The Bail Act 1982
sections 60, 62, 64 and 65 apply, with any necessary changes, in relation
to a witness, a surety required under an order made under clause 2(5),
and a witness undertaking, in the same way as they apply respectively in
relation to a defendant, a surety required by a grant of bail under that Act,
and a bail undertaking.
Defined Terms
[This is a list of terms defined and the provisions where they
are defined. The list is not part of the law.]
Defined Term Provision(s)
accused
3(1)
acquit 3(1)
adjourn
18
alibi evidence 62(1),
96(1)
alleged offender 4
approved notice
3(1)
approved officer 4
arrest warrant 3(1)
attendance date
156
audio link 3(1)
authorised
investigator 18
authorised officer
4, 80(1)
authorised person 20(1)
bail documents 36
case
3(1)
charge 3(1)
charge A
83(4)
child 169(1)
committed
80(1)
community order 121(1)
confessional material 35(1), 42(1), 45(1), 61(1),
95(1)
convict 3(1)
convicted person
121(1)
corporation 3(1)
corresponding law 11(1)
court
3(1), 18, Sch. 1, cl. 11(1)
court date 18
court document 176(1), 178(1)
court hearing notice
3(1)
court of summary jurisdiction
3(1)
courtroom 3(1)
current licence
holder 11(1)
deal with
3(1)
decision 70
detainee
177(7)
determine 3(1)
disclosure
requirement 63(1), 97(1), 138(1)
disclosure/committal hearing 36
document
3(1)
DPP 3(1)
either way
charge 3(1)
electronic recording
3(1)
evidentiary material 42(1),
45(1), 61(1), 95(1)
exception 78(1)
expert
evidence material 62(1), 96(1)
first court date
18
indictable charge
3(1)
indictable offence 3(1)
indictment
3(1)
lawyer 3(1)
licensed
11(1)
listed simple offence
60(1)
lodge 95(1), 96(1)
lower court
99(1)
magistrate 3(1)
maker
Sch. 3, cl. 4(3), 3, cl. 4(4)
named person
Sch. 2, cl. 2(2), 2, cl. 3(2), 2, cl. 4(2)
new court date
75(4)
new time 75(4)
offence 3(1), 180(1)
officer
180(1)
party 3(1)
payment order
185(1)
police prosecutor
35(1)
post 3(1)
prescribed
18, 80(1)
prescribed Act 4
prescribed court
officer 3(1)
prescribed offence
4
prescribed public authority 18
prescribed simple offence 35(1)
proceedings
88(1), 171(1)
prosecution
3(1)
prosecution notice 3(1)
prosecutor
3(1)
public authority 3(1)
receiving Sch. 1, cl. 1
record
3(1)
relevant authorised officer 36,
80(1)
relevant court Sch. 3, cl. 1, 4, cl. 1
remand warrant 3(1)
responsible person
11(1)
serve 35(1), 42(1),
61(1), 62(1), 95(1), 96(1)
service information
Sch. 2, cl. 1
simple offence 3(1)
statutory penalty
3(1)
stay order 121(1)
stealing Sch. 1, cl. 1
summons
3(1)
superior court 3(1)
trial date
3(1)
vehicle 3(1)
vehicle licensing law 11(1)
vehicle offence
11(1)
video link 3(1)
witness
159(1), 159(2), 159(3), Sch. 3, cl. 5(1)
witness
documents 36
witness summons
3(1)
witness undertaking 3(1), Sch. 4, cl.
1
working day 3(1)
written plea
18