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Criminal Law Blog WA

Summons of accused and witness in criminal cases under Criminal Procedure Act 2004 in Western Australia

Summons is a document which requires a person to attend at court (Legal Aid Queensland's Dictionary) to give testimony or bring with him documents in order to observe the basic principle of due process.

In Western Australia, summons is not only issued to an accused in a criminal case informing him of the charge filed against him in court, but it may also be issued to a witness for him or her to appear in court and in certain cases, to an officer of a corporation. The Criminal Procedure Act 2004 (WA) declares the failure of the accused or witness to obey the summons issued against them an offence. If an accused, without justifiable reasons, does not obey a summons that has been served on him, he or she commits an offence. In the same manner, if a witness against whom a summons has been served and refuses to obey it, he or she likewise commits an offence

The law
Summons are governed by Criminal Procedure Act 2004 (WA)

Summons to the accused WA

Summons is necessary in a criminal case. It is a right of an accused in a criminal case not only to inform him that there is a charge filed against him in court but also to enable him to prepare for his defence. This is but a part of the due process that one should not be held liable for an offence without giving him the opportunity to defend himself in a proper proceeding. The court is mandated under Criminal Procedure Act 2004 to inform the accused that a criminal case is filed against him before.

A summons is issued only in a prescribed form provided by the law.
In Section 32, a summons must –
a) be in a prescribed form; and
b) if issued in the first instance, must form part of or be attached securely to a copy of the prosecution notice to which it relates; and
c) if issued after the accused has been served with the prosecution notice, must identify the prosecution notice or the charge or charges in it or be attached securely to a copy of it; and
d) state when and where the court will deal with the prosecution notice; and
e) require the accused to appear at that time and place; and
f) contain any information prescribed; and
g) be signed —
i. if it is being issued by an authorised investigator, by the investigator; or
ii. if it is being issued by a JP or a prescribed court officer, by the JP or officer.

Summons must be served personally to the accused. In case of refusal to accept it, the server may leave it near the accused and orally directs his or her attention to it. The server may affect a substituted service on summons if the circumstances warrant it or mails it to the named person. (Criminal Procedure Act 2004 – Schedule 2). The law provides that failure to observe the prescribe form does not have the effect of invalidating the summons but it may only delays the prosecution of the accused.

The law punishes those who refuse to obey its orders. Thus, under Section 81 of the law, an accused who, without reasonable grounds, refuses to obey the summons will suffer the penalty of fine in the amount of $12 000 or imprisonment for 12 months.

Summons to a witness WA

A witness may be compelled to appear in court on application of a party to a case in court. There are two kinds of summons issued to a witness compelling him or her to appear in court. The first is a witness summons that requires a witness to attend the court to give oral evidence in the case and the second is a witness summons that requires the witness to attend the court and produce to the court a record or thing that is relevant to the case. (Section 150 of Criminal Procedure Act 2004).

In both cases, the summons must be in a form prescribed by the regulations, state where and when the witness is required to obey the summons, and contain any information prescribed by the regulations. An additional requirement in case the summons is issued to a witness to attend and produce a document to describe in reasonable detail the record or thing that the witness is required to produce to the court. (Section 161 of Criminal Procedure Act 2004).

Summons issued to a witness is required by the law to be served personally to the witness. Other modes of service of summons are also available like in service of summons to the accused. However, certain circumstances must be present before other modes of service of summons can be taken by the server of summons. The law requires that a summons must be issued at a period giving a witness sufficient time to prepare before the court appearance.

If a witness refuses to obey the summons, he or she will pay a fine of $12 000 or imprisonment for 12 months. In case of a corporation, a fine of $60 000 will be imposed.

The defence
An accused or a witness who commits an offence for failing to obey the summons issued against them may set up a defence that there was an improper service of summons that makes him or her unaware of the summons. If this reason is duly proven, the court may excuse the accused or witness from the penalty imposed by the law.
 

 This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers. Criminal lawyers Melbourne, Criminal Lawyers Ballarat, Criminal Lawyers Bendigo

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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