Counsel or solicitor not to be excluded.

Conduct of case.

offences for the purpose of committal for trial and the depositions of the witnesses in that behalf shall not be deemed an open court, and the Justices may order that no person shall be in such room or place without their permission; but they shall not make such order unless it appears to them that the ends of justice require them so to do.

67. The power to exclude any person shall not be exercised for the purpose of excluding any counsel or solicitor engaged in the case.

Counsel and Solicitor.

68. Every complainant shall be at liberty to conduct his case and to have the witnesses examined and cross-examined by his counsel or solicitor; and every defendant shall be admitted to make his full answer and defence to the charge, and to have the witnesses examined and cross-examined by his counsel or solicitor.

Evidence, how taken.

Prosecutor and complainant a competent witness.

Evidence.

69. Every witness shall be examined upon oath, or in such other manner as is prescribed or allowed by the Acts in force for the time being relating to giving evidence in Courts of Justice.

70. Upon any complaint of an indictable offence, or simple offence or other matter, the prosecutor or complainant shall Amended by No. 19 be a competent witness to support such complaint.

of 1919, s. 4.

Defendant and wife

or husband, when competent.

Amended by No. 19 of 1919, s. 4.

71. (1.) Except as in the Criminal Code is otherwise provided, and subject to the provisions therein contained, upon any complaint of an indictable offence, the defendant, and the wife or husband of the defendant, shall be a competent but not a compellable witness.

(2.) Upon any complaint of an indictable offence against morality the husband or wife of a defendant shall be a competent and compellable witness when the husband or wife of an accused person would be a competent or compellable witness on the trial of such person.

(3.) Upon any complaint of a simple offence or other matter the husband or wife of the defendant shall be a competent and compellable witness.

etc.

72. If the complaint in any case of a simple offence or Proof of negative, other matter negatives any exemption, exception, proviso, or Amended by No. 19 condition contained in the Act on which the same is framed, of 1919, s. 4. it shall not be necessary for the complainant to prove such negative, but the defendant shall be called upon to prove the affirmative thereof in his defence.

73. When a person is charged with an indictable offence, Mode of taking the depositions of the witnesses shall be reduced to writing, evidence. and shall be read over to and signed respectively by the witnesses, and shall be signed also by the Justices.

Witnesses in General.

Power of Justice to summon witnesses

evidence.

74. (1.) Any justice or clerk of petty sessions may issue his summons to any person requiring him to be and appear to attend and give as a witness at a time and place mentioned in the summons before such Justices as shall then be there to testify what he knows concerning the matter of the complaint.

(2.) A summons to a witness must be served, and proof of service may be given in the same manner as hereinbefore prescribed in the case of a summons to a defendant.

warrant.

75. (1.) If a person summoned as a witness neglects or re- After Summons fuses to appear at the time and place appointed by the summons, and no just excuse is offered for such neglect or refusal, then (after proof that the summons was duly served upon such person, and, except in the case of indictable offences, that a reasonable sum was paid or tendered to him for his costs and expenses of attendance) the Justices before whom such person was summoned to appear may then and there impose upon him in his absence a penalty not exceeding Twenty pounds, which may be recovered in the same manner as penalties imposed upon a summary conviction as hereinafter provided.

(2.) The Justices may also issue their warrant to bring and have such person at a time and place to be therein mentioned before such Justices as shall then be there to testify as aforesaid.

(3.) No payment or tender of expenses shall be necessary in the case of indictable offences.

instance.

76. If the Justice is satisfied by evidence upon oath that Warrant in the first it is probable that a person whose evidence is desired will not

Witness not an-
Яwering.

Production of documents before Justices.

Remand of defendant.

Amended by No. 19 of 1919, s. 4.

attend to give evidence without being compelled so to do, then, instead of issuing a summons, he may issue his warrant in the first instance.

77. If on the appearance of a person before Justices, either voluntarily or in obedience to a summons, or upon being brought before them by virtue of a warrant, such person refuses to be examined upon oath concerning the matter, or refuses to take an oath, or having taken an oath refuses to answer such questions concerning the matter as are then put to him, without offering any just excuse for such refusal, any Justice then present and having there jurisdiction may by warrant commit the person so refusing to gaol, there to remain and be imprisoned for any time not exceeding seven days, unless in the meantime he consents to be examined and to answer concerning the matter.

78. When Justices have authority to summon any person as a witness, they shall have the like authority to require and compel him to bring and produce, for the purposes of evidence, all documents and writings in his possession or power, and to proceed against him in case of neglect or refusal so to do in the same manner as in case of neglect or refusal to attend or refusal to be examined:

Provided that no person shall be bound to produce any document or writing not specified or otherwise sufficiently described in the summons, or which he would not be bound to produce upon a subpoena duces tecum in the Supreme Court.

Remand and Adjournment.

79. In any case of a charge of an indictable offence, if from the absence of witnesses, or from any other reasonable cause, it becomes necessary or advisable to defer the hearing of the case, the Justices before whom the defendant appears or is brought may adjourn such hearing to the same or some other place, and may, by their warrant, from time to time remand the defendant to some gaol, or other place of security, for such period as they may in their discretion deem reasonable (but not exceeding eight clear days at one time) to be there kept, and to be brought before the same or such other Justices as shall be acting at the time or place appointed for continuing the hearing. The powers given by this and the next succeeding section may be exercised by one Justice if only one is present.

80. If the remand is for a time not exceeding three clear Verbal remand. days, the Justices may verbally order the person in whose custody the defendant then is, or any other person named by the Justices in that behalf, to keep the defendant in his custody, and to bring him before the same or such other Justices as shall be acting at the time and place appointed for continuing the hearing.

remand.

81. Any Justices may order the defendant to be brought Bringing up during before them at any time before the expiration of the time for which he was so remanded, and the officer in whose custody he then is shall duly obey such order.

during examination.

82. Instead of detaining the defendant in custody during Ball of defendant the period for which he is remanded, any one Justice before whom he appears or is brought may, subject to the provisions hereinafter contained, order his discharge upon recognisance.

place.

83. In any case of a charge of an indictable offence, the Remand to another Justices before whom the defendant appears may, if they think fit, bind over such witnesses as they have examined by recognisance to give evidence, and may, by warrant, order the defendant to be taken before Justices having jurisdiction in or near the place where the offence is alleged to have been committed, or in any other place in Western Australia where any of the witnesses to be examined are, and shall at the same time deliver the complaint, and also the depositions and recognisances so taken by them, to the officer who has the execution of the last-mentioned warrant, to be by him delivered to the Justices before whom he shall take the defendant in obedience to such warrant.

tions, etc.

84. Such depositions and recognisances shall be deemed to Effect be taken in the case, and shall be treated as if they had been taken by or before the last-mentioned Justices, and shall, together with such depositions and recognisances as such lastmentioned Justices shall take in the matter of the charge against the defendant, be transmitted to the proper officer in the manner and at the time hereinafter mentioned, if the defendant is committed for trial upon the charge or discharged upon recognisances:

Provided that, if the last-mentioned Justices do not think the evidence against the defendant sufficient to put him upon his trial, and discharge him without recognisances, every re

of

deposi.

Defendant may have to pay expense.

Adjournment of the hearing.

s.

cognisance so taken by the first-mentioned Justices shall be null and void.

85. If it appears to the Justices by whom any defendant is committed for trial or for sentence that he has money sufficient to pay the whole or some part of the expenses of conveying him from the place where he was first brought before Justices to the place where he was committed, such Justices may order that, in the event of his conviction, such money or a sufficient part thereof shall be applied to such purpose.

86. In any case of a charge of a simple offence or other matter, the Justices present, or, if only one Justice is present, Amended by No. 19 such one Justice, may adjourn the hearing to a certain time and place to be then appointed and stated, in the presence and hearing of the party or parties, or their respective counsel or solicitors then present, and in the meantime may suffer the defendant to go at large, or may commit him, or may order his discharge upon his entering into a recognisance conditioned for his appearance at the time and place appointed for continuing the hearing.

Place of committal or detention.

Place to which com

mittal to be made.

Witness may be discharged on recognisance.

Recognisances.

Committal and Recognisance.

87. When Justices commit a defendant by way of remand or upon an adjournment, or at any time before the decision, they may commit to the gaol, or any other place of security in the place for which they are then acting, or to such other safe custody as they think fit.

88. When Justices commit a witness or person sought to be made a witness, and when they commit a defendant after the decision, they must commit to a gaol.

89. A witness or person sought to be made a witness may be discharged upon recognisance.

90. When Justices are authorised to discharge a defendant, witness, or other person upon recognisance, they may order his discharge upon his entering into a recognisance, with or without a surety or sureties at their discretion, conditioned for his appearance at the time and place to which the hearing is adjourned, or which is named in the recogni

sance.