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1
Criminal Law Amendment Bill 2002
CRIMINAL LAW AMENDMENT BILL 2002
EXPLANATORY NOTES
GENERAL OUTLINE
OBJECTIVES OF THE LEGISLATION
The Criminal Law Amendment Bill 2002 amends the Criminal Code, the
Penalties and Sentences Act 1992, the Evidence Act 1977, the Justices Act
1886, the Bail Act 1980, the Jury Act 1995 and the Drug Rehabilitation
(Court Diversion) Act 2000 to improve the responsiveness of the criminal
justice system to the needs of persons, including jurors, witnesses and
victims of crime.
The Bill also increases penalties for stock theft, provides a mechanism to
ensure persons detained pursuant to section 18 of the Criminal Law
Amendment Act 1945 cannot be released without supervision and includes
a number of amendments to correct drafting anomalies.
REASONS FOR THE OBJECTIVES AND HOW THEY WILL BE
ACHIEVED
The criminal justice system should be responsive to the needs of those
persons who must engage with the criminal courts. Following consultation
with stakeholders involved in the criminal justice system legislative
changes have been identified that will improve the efficiency of the
criminal courts.
The Bill also addresses the need to ensure any safety concerns of
persons, particularly witnesses and jurors, who must participate in the
criminal justice system are adequately addressed.
Increased penalties for stock stealing and related offences will ensure the
seriousness of this type of offence is recognised. These offences involve
not just loss of valuable property to the individual but also undermine
disease prevention strategies.
Section 18 of the Criminal Law Amendment Bill 1945 provides that,
when a person is found guilty upon indictment of an offence of a sexual
nature committed upon a child under the age of 16 years, the sentencing
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Criminal Law Amendment Bill 2002
judge may request a report on whether the offender is incapable of
exercising proper control over his sexual instincts. Upon examination, the
medical practitioners must report to the judge who is empowered to declare
the offender so incapable and that he is to be detained at an institution
during `Her Majesty's pleasure'. Such detainees may only be released by
the Governor in Council when it is considered expedient to do so.
However, the Governor in Council does not have the power to attach
enforceable conditions to any order for release.
The proposed amendment will address the need to ensure persons
detained under section 18 can be supervised in the community if and when
released.The Board may only grant detainees post-prison community based
release f satisfied the detainee does not represent an unacceptable risk to
others.
Modern technology also has the potential to compromise the right of an
accused person to be tried upon admissible evidence heard in the
courtroom. With the advent of websites on the Internet which disclose the
antecedents of convicted persons, there is a concern that jurors would be
able to readily access the criminal history of persons on trial. These may
not be accurate. This issue has serious implications for the integrity of
criminal trials. On 24 May 2000 in R v McLachlan, a Victorian Supreme
Court Judge aborted a murder retrial because he feared it would be
prejudiced by information on such a site. A new offence will be inserted
into the Jury Act 1995 to ensure that it is clear such inquiries are prohibited
during the time a juror is sworn in a trial.
ADMINISTRATIVE COST TO GOVERNMENT OF
IMPLEMENTATION
There will be no additional administrative costs to the Government as a
result of the amendments in this Bill. Conferring a power on magistrates to
make pre-trial and pre-committal directions and the proposal for the DNA
evidentiary certificate have the potential to produce cost savings.
FUNDAMENTAL LEGISLATIVE PRINCIPLES
Does the legislation have sufficient regard for the rights and liberties of
individuals?
The proposed amendments to the Criminal Law Amendment Act 1945
deem individuals, detained under that Act, to be sentenced to life
imprisonment for the purpose of post-prison based community release in
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Criminal Law Amendment Bill 2002
the Corrective Services Act 2000. As such this might be regarded as a
significant encroachment on the rights of these individuals.
However, the deeming is to allow the detainees to be subject to the
appropriate processes of release through the Corrective Services Act 2000.
Their present situation is that the detainees have no access to conditional
release. All persons currently detained under a declaration made under
section 18 of the Criminal Law Amendment Act 1945 have served over 13
years imprisonment.
Given the situation of these prisoners, the time they have spent in
custody and the need to integrate the prisoners into a conditional release
program it is submitted that the proposed legislation does have sufficient
regard to the rights and liberties of individuals.
The new section 95B of the Evidence Act 1977 (DNA evidentiary
certificate) might be seen as removing an existing right - the unrestricted
cross-examination of relevant prosecution witnesses who participate in the
testing of forensic samples. However, the use of evidentiary certificates to
present complex evidence assembled by a number of persons and recorded
in a methodical fashion is already permitted in the Evidence Act 1977, for
example, section 95 (admissibility of statements produced by computers).
It is submitted that the provision, as drafted, balances the competing
considerations. While production of the certificate by the prosecution
obviates the need for the prosecution to call all the persons involved in the
continuity and testing processes that produce a DNA profile it still requires
the prosecution to call the DNA forensic analyst to give the important
evidence of comparison of DNA profiles. It is this evidence that may link
an offender with a crime scene.
The other safeguards of the rights of the accused are -
· A requirement that if the party is seeking to rely upon the
certificate then the chief executive officer must, upon the written
request from a party to a proceeding, provide a copy of the
laboratory records relating to the receipt, storage and testing of
the thing within two days.
· The court may give leave for any person to require the party
seeking to rely on the certificate to call any person involved in the
receipt, storage or testing of the thing.
· Section 98 of the Evidence Act 1977 includes an overriding
discretion for the court to reject any statement or representation
notwithstanding that the requirements of Part 6 have been
complied with.
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Criminal Law Amendment Bill 2002
CONSULTATION
A Consultation Draft of the Bill was sent to:
· The Chief Justice of the Supreme Court
· The President of the Court of Appeal
· The Chief Judge of the District Court
· The Chief Magistrate
· The Queensland Law Society
· The Bar Association of Queensland
· The Queensland Council for Civil Liberties
· The Criminal Lawyers Association
· Legal Aid Queensland
· The Director of Public Prosecutions
· The Commissioner of the Queensland Police Service
· The Departments of:
-- Corrective Services
-- Families
-- Aboriginal and Torres Strait Islander Policy
-- The Premier and Cabinet
-- Innovation and Information Economy
-- Health
· The Chairman of the Crime and Misconduct Commission
· The Women's Legal Service
· The supervising scientist of the John Tonge Centre
· The Public Defender.
A Consultation Draft containing provisions relating to amendments of
the Jury Act 1995 was sent to the Chief Justice, the Chief Judge of the
District Court, the Chief Magistrate, the Queensland Law Society, the
Queensland Bar Association, the Queensland Council of Civil Liberties,
the Criminal Law Association, the Public Defender, the Commissioner of
the Queensland Police Service, the Department of Families, the Director of
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Criminal Law Amendment Bill 2002
Public Prosecutions and the Sheriff and Marshal of the Supreme and
District Court.
The comments of those consulted have informed the drafting of the Bill.
NOTES ON PROVISIONS
PART ONE--PRELIMINARY
Clause 1 sets out the short title of the Act.
Clause 2 provides for commencement of the Act upon proclamation.
Minor amendments in the schedule commence on assent. Amendment 2 to
the Criminal Code is taken to have commenced on 28 February 2002.
Clause 3 provides that the schedule amends the Acts it mentions
PART TWO--BAIL ACT 1980
Clause 4 provides that the Bail Act 1980 is amended by this Part.
Clause 5 amends section 7 (Power of police officer to grant bail). This
amendment will enable a police officer, as an alternative to the grant of
bail, to serve a notice to appear upon a person or a notice of attendance
upon a child. The power to serve a notice to appear is in section 214 of the
Police Powers and Responsibilities Act 2000. An attendance notice may be
served on a child under section 23 of the Juvenile Justice Act 1992.
Clause 6 amends section 20 (Undertaking as to bail). The effect of this
amendment, in relation to indictable offences, is to enable a legally
represented person to be excused from appearance in the Magistrates
Court.
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Criminal Law Amendment Bill 2002
PART THREE--AMENDMENT OF CRIMINAL CODE
Clause 7 provides that this part amends the Criminal Code.
Clause 8 amends section 1 (Definitions) of the Criminal Code.
A new definition of `family' has been inserted into the Code. The
definitions found in section 119A of the Code and are for the purposes of
the new section 119B (Retaliation against judicial officers, juror, witness or
family).
A new definition of `stock' has been inserted into the Code to replace the
former lengthy recitation of `horse, mare, gelding, ass, mule, camel, bull,
cow, ox, ram, ewe, wether, boar, sow, barrow, deer, buffalo or goat or the
young of any such animal'.
A new definition of `judicial officer' is now included. As well as judges
or magistrates the definition of `judicial officer' includes members of
tribunals, persons conducting hearings of the Crime and Misconduct
Commission, arbitrators and umpires.
Clause 9 amends section 119 (Definition of judicial proceeding) and
inserts two new provisions, section 119A (Meaning of family) and section
119B (Retaliation against judicial officer, juror, witness or family).
A new section 119A is inserted that defines the meaning of `family'.
The new section 119B creates a new offence, Retaliation against judicial
officer, juror, witness or family.
The new offence provides that a person who, without reasonable cause,
causes or threatens to cause injury or detriment to a judicial officer, juror,
witness or a member of the family of a judicial officer, juror or witness in
retaliation because of anything the judicial officer had lawfully done as a
judicial officer or the juror or witness has lawfully done in any judicial
proceeding is guilty of a crime.
The drafting of the offence has been informed by similar provisions in
other jurisdictions, most particularly section 326 of the Crimes Act 1900
(NSW).
The expression "without reasonable cause" is adopted from the element
"without reasonable or probable cause" used in section 415 of the Criminal
Code, the offence of extortion. This imposes an additional element on the
prosecution to prove that the accused's conduct was "without reasonable
cause", that is, that it was objectively reasonable. It is intended to strike a
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Criminal Law Amendment Bill 2002
balance between the right of a person to make a complaint about the
administration of justice, and the need to prevent people from taking the
law into their own hands, even if they honestly believe that another person
has acted unlawfully.
A threat to inflict violence on a person would be "without reasonable
cause", even if the accused believed that the person had acted unlawfully.
Similarly, an act that is otherwise lawful may be a reprisal if it is done with
intent to punish a person for what he or she has done in court.
Nothing in the provision is meant to stifle comment or criticism, even the
most robust criticism, about the functioning of the criminal justice system
and any decision a court might reach. It is a fundamental principle that
justice be administered in open court. A court is open when members of
the public, including the press, have a right of admission. By exposing
court proceedings to public and professional scrutiny, and criticism, there
exists a reassurance to the public that justice is administered fairly,
impartially and in accordance with the law.
"Judicial proceeding" is defined in section 119 of the Code to include
any proceeding had or taken in or before any court, tribunal or person, in
which evidence may be taken on oath.
Clause 10 amends section 120 (Judicial corruption). The term `the
holder of judicial office' has been omitted and replaced with the term
`judicial officer'.
Section 120(3) is now omitted as the definition of judicial officer already
includes arbitrator or umpire. However, a new section 120(2) continues the
distinction in sentence between other judicial officers and an arbitrator or
umpire.
Sub-section (4) has been renumbered sub-section (3). The language of
the sub-section has been amended to clarify the meaning that a prosecution
for an offence in section 120 cannot be commenced without the consent of
a Crown Law officer.
Clause 11 amends section 122 (Corrupting or threatening jurors) by
omitting sub-section (b). The new section 119B now covers this conduct.
The penalty for this offence, renamed "Corrupting jurors" has been
increased to 7 years imprisonment.
Clause 12 amends section 398(2) to replace all the animals mentioned
with the phrase `stock'. Stock is now defined in section 1 of the Code.
Sub-clause (2) amends section 398, punishment in special cases, to make
it clear that the aggravating circumstance in clause 9 (Stealing property
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Criminal Law Amendment Bill 2002
valued at more that $5000) includes stock when its value is more than
$5000.
Clause 13 replaces the chapter division 1 heading for Chapter 44.
Clause 14 amends section 444A (Killing animals with intent to steal) by
increasing the maximum fine able to be imposed to $50,000.
Clause 15 amends section 444B (Using registered brands with criminal
intention) by increasing the penalty in section 444B(1) to 5 years
imprisonment and increasing the maximum fine able to be imposed to
$50,000
Clause 16 replaces the chapter division heading for Chapter division 2.
Clause 17 amends the offence named in section 445 (Unlawfully using
cattle) to unlawfully using stock. This offence name better reflects the
actual content of the section. The language of the section has also been
modernised to incorporate the new definition of stock.
The offence has been redefined a misdemeanour and the penalty
increased to 5 years imprisonment with a maximum fine of $50,000.
Clause 18 amends section 446 (Suspicion of stealing cattle). Again, the
offence name has been changed to better reflect the actual offence defined
in the section. The language of the section has been modernised to
incorporate the term `stock' rather than the present a long list of animals.
The offence has been redefined as a misdemeanour and the penalty
increased to 5 years imprisonment with a maximum fine of $50,000.
Clause 19 amends section 447 (Illegal branding). The language of the
section has been made consistent with the other provisions. The offence
has been redefined as a misdemeanour and the penalty increased to 5 years
imprisonment with a maximum penalty of $50,000.
Clause 20 amends section 448 (Defacing brands). The term `stock' is
now inserted in this offence. The offence has been redefined as a
misdemeanour and the penalty increased to 5 years imprisonment with a
maximum penalty of $50,000.
Clause 21 amends section 448A (Having in possession an animal with
defaced brand). The term `stock' is now inserted in this offence. The
offence has been redefined as a misdemeanour and the penalty increased to
5 years imprisonment with a maximum penalty of $50,000.
Clause 22 omits section 450 (Committal for trial). These offences have
been re-defined as misdemeanours. However, the effect of section 552B of
the Criminal Code is that the offences may still be dealt with summarily
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Criminal Law Amendment Bill 2002
providing that the Magistrate is of the view that he or she can adequately
punish the offender in the summary jurisdiction.
Clause 23 omits section 450C (Effect of civil proceedings) that
previously provided protection from prosecution where civil proceedings
were taken. Such protection is not provided for any other offence of
stealing or fraud-related offences.
Clause 24 amends the heading for Chapter 44A.
Clause 25 omits the definition of animal in section 450D and includes a
new definition defining the term "animal", as used in the section, as stock.
Clause 26 amends section 450H (Licence disqualification where
commission of offence facilitated by licence or use of vehicle) by
substituting the term `magistrate' for `Stipendiary Magistrate'.
Clause 27 amends section 450I (Forfeiture in cases of conviction for
offences under specified sections) by again substituting the term
`magistrate' for `Stipendiary Magistrate".
Clause 28 amends section 468 by omitting the long list of animals in
section 468(2) and substituting the term `stock'.
Clause 29 amends section 568 (Cases in which several charges may be
joined) to reflect amendments made in 1997 to sections 419 (Burglary),
421 (Entering or being in premises and committing indictable offences)
and 433 (Receiving).
It also addresses a difficulty identified by the Court of Appeal in R v
Williams [2000] QCA 409, where the penalties for the alternative offences
are the same and the judge is required to enter a conviction for the offence
with the lesser penalty. Subsection (10) states that where the same penalty
is provided, the trial judge is to decide on the offence for which the
conviction is to be entered.
Clause 30 amends section 588 (Charges of stealing cattle). These
amendments are consequential upon the amendments in Chapter 44 and
incorporate the new term `stock' rather than the longer list of animal
names.
Clause 31 amends section 588A (Charges of stealing certain animals and
of killing certain animals with intent to steal) to reflect the new definition
of stock.
Clause 32 amends section 671G to clarify that a person's time in
custody, pending a determination of an appeal, is part of any term of
imprisonment imposed under the appellant's sentence.
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Criminal Law Amendment Bill 2002
Clause 33 inserts a new Chapter 75 and section 712 (Transitional
provision for Criminal Code Amendment Act 2002) to provide that sections
568 (6) - (8), in force immediately before the amendments continue in
force for indictments presented before the commencement of the Criminal
Law Amendment Act 2002.
PART 4--AMENDMENT OF CRIMINAL LAW
AMENDMENT ACT 1945
Clause 34 provides that this part amends the Criminal Law Amendment
Act 1945.
Clause 35 amends section 18 (Detention of persons incapable of
controlling sexual instincts). The language used in the section has been
modified to accommodate the changes made to terms in the Corrective
Services Act 2000.
Clause 36 inserts a new Part 3A that establishes a regime for the
conditional release of offenders detained under part 3A. The part contains
new provisions section 18A to section 18H.
Section 18A defines the terms used in the part.
Section 18B (Post-prison community based release orders under
Corrective Services Act 2000)provides that chapter 5 of the Corrective
Services Act 2000 (Post-prison community based release) applies to a
person detained in accordance with a declaration made under section 18 as
if the detainee were a person serving a life term of imprisonment.
The effect of the section is to allow a detainee, who has served a term of
imprisonment equivalent to that nominated in section 135(2)(b) (the term
required to be served by prisoners sentenced to life imprisonment before
eligibility to apply for post-prison community based release) to also be
eligible to apply for post-prison community based release.
The term of imprisonment required to be served for the purposes of
section 135(2)(b) before eligibility to apply is 13 years when the
declaration was made before 1 July 1997. This is the same as the period for
prisoners serving life terms imposed before 1 July 1997.
Section 18C provides that the board cannot grant exceptional
circumstances parole to these detainees.
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Criminal Law Amendment Bill 2002
Section 18D provides that the Queensland Board must notify the
Attorney-General when a detainee makes application for post-prison
community based release. The Attorney-General is given a specific power
to make submissions to the Board about the release of a detainee. The
Board must consider these submissions.
Section 18E provides an additional test for release for these prisoners.
The Queensland board must not grant a detainee a post-prison community
based release order unless, in addition to any other matter of which the
Queensland board must be satisfied under the Corrective Services Act
2000, the board is satisfied the detainee does not represent an unacceptable
risk to the safety of others.
Section 18F also provides a power for the Queensland Board to attach
conditions to a post-prison community based order that require a detainee
to submit to medical, psychiatric or psychological treatment or report for
drug testing to a corrective services officer. This power supplements the
power of the Board contained in section 144 of the Corrective Services Act
2000.
Section 18G deems a detainee a prisoner for the purposes of the
Corrective Services Act 2000, section 94(j). This is the offence of being
unlawfully at large.
Section 18H makes it clear that nothing in this section removes the
power of the Governor in council to unconditionally release an offender
under section 18(5)(b) or (6A)(b).
PART 5--AMENDMENT OF DRUG REHABILITATION
(COURT DIVERSION) ACT 2000
Clause 37 provides that this part amends the Drug Rehabilitation (Court
Diversion) Act 2000.
Clause 38 amends section 15 (Deciding whether to refer for assessment)
by inserting a further requirement that before the pilot program magistrate
refers an eligible person for assessment he or she must be satisfied that the
maximum number of active intensive drug rehabilitation orders prescribed
under regulation has not been exceeded.
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Criminal Law Amendment Bill 2002
The regulation-making powers (in section 43) will be amended by this
Act to permit the making of a regulation to prescribe the maximum number
of intensive drug rehabilitation orders that can be made for offenders
residing in a particular locality.
Clause 39 amends section 19 (Making of order) to provide that before a
pilot program magistrate makes an intensive drug rehabilitation order he or
she must be satisfied that the maximum number of active intensive drug
rehabilitation orders prescribed under a regulation has not been exceeded.
Clause 40 amends section 34 (Termination of rehabilitation programs) to
clarify that termination of a rehabilitation program is a prerequisite to the
procedure in section 34(3) of termination of an intensive drug rehabilitation
order.
Clause 41 inserts a new provision, section 35A (Inclusion of a new
rehabilitation program) that provides that where a pilot program magistrate
has terminated a rehabilitation program in the absence of an offender the
pilot program magistrate may, when the offender is apprehended, reinstate
a rehabilitation program.
To reinstate the rehabilitation program the pilot program magistrate
must be satisfied that the criteria in section 19 are met and the offender has
reasonable prospects of completing a rehabilitation program.
Clause 42 amends section 36 (Final sentence to be decided on
completion or termination of a rehabilitation program) to take into account
circumstances where termination does not take place because of the new
procedure set out in section 35A.
Clause 43 amends section 39 (Disclosing compliance or failure to
comply with rehabilitation program) by inserting a new sub-section (1)(b)
that allows a prescribed person to enter compliance or related information
into a pilot program database.
A new definition of "compliance information" and "related information"
is included in the amendment.
Clause 44 amends section 43 (Regulation-making power) by inserting
specific heads of power to allow the making of regulations prescribing
guidelines for particular pilot program courts.
Clause 45 amends section 47 (Expiry of Act) to provide that the Act now
expires 42 months after its commencement. The expiry date may be
deferred for 12 months by regulation
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Criminal Law Amendment Bill 2002
Clause 46 amends the Dictionary by inserting a definition for an "active
intensive drug rehabilitation order".
PART 6--AMENDMENT OF EVIDENCE ACT 1977
Clause 47 provides that this part amends the Evidence Act 1977
Clause 48 inserts a new provision, section 95A (DNA evidentiary
certificate)
Section 95A provides for the making of a DNA evidentiary certificate.
A DNA evidentiary certificate must be made by a DNA Analyst
(appointed in section 133A of the Evidence Act 1977) in an approved form.
It may include information that a stated thing was received at a stated
laboratory on a stated day, that the thing was tested at a stated laboratory on
a stated day or between stated days and that a stated DNA profile was
obtained from the thing. The certificate can also state that the DNA analyst
examined all the relevant records of the storage and testing of the thing and
confirms that the records indicate quality assurance procedures were
complied with.
A DNA evidentiary certificate in the prescribed form and signed is
evidence of a matter.
A party seeking to rely upon a DNA certificate must give a copy to
another party at least 10 business days before a hearing and also call the
DNA analyst. Any party to the proceeding may request, in writing, a copy
of the laboratory records relating to the receipt, storage and testing of the
thing. The chief executive must provide this copy to the requesting party
within 7 business days.
A party challenging a certificate is also required to give notice if
challenging a certificate. The court must give leave before a witness can be
called in relation to the storage, receipt or testing of a thing. The criteria
for granting leave is if the court is satisfied that an irregularity may exist in
relation to the receipt, storage or testing of a thing or it is in the interests of
justice that a person be called.
The provision also includes a presumption of accuracy of equipment
used in testing and a definition section.
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Criminal Law Amendment Bill 2002
Clause 49 inserts a new section 133A (DNA analysts) and permits the
chief executive officer for Health to appoint a person a DNA analyst if
satisfied that the officer has the necessary qualifications and experience to
be a DNA analyst.
PART 7--AMENDMENT OF JURY ACT 1995
Clause 50 provides that this part amends the Jury Act 1995.
Clause 51 amends section 12 (Arrangements with commissioner of the
police service) by correcting the reference to the wrong paragraph in sub-
section (3).
Clause 52 amends section 20 by omitting the term `in court or
chambers'. Section 128 of the Supreme Court Act 1991 (inserted by the
Civil Justice Reform Act 1998) abolished the distinction between court and
chambers.
Clause 53 amends section 37 (Materials to be given by sheriff) to require
the list of jurors given to the judge's associate to include the "locality
address" of the member of the panel rather than the address (interpreted as
street address).
Locality address is defined in the new section 37(3) to mean the city,
town, suburb or other locality that a person resides.
Clause 54 inserts a new offence, section 69A (Inquiries by juror about
accused prohibited) that will prevent a person sworn as a juror in a criminal
trial inquiring about a defendant in the trial until the juror is discharged.
Inquire is defined to include searching an electronic database for
information (by using the Internet) or causing someone else to inquire.
Clause 55 amends section 70 (Confidentiality of jury deliberations) by
omitting the term `in court or chambers'. Section 128 of the Supreme
Court Act 1991 (inserted by the Civil Justice Reform Act 1998) abolished
the distinction between court and chambers.
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Criminal Law Amendment Bill 2002
PART 8--AMENDMENT OF JUSTICES ACT 1886
Clause 56 provides that this part amends the Justices Act 1886
Clause 57 inserts a new provision, section 83A (Direction hearing) to
provide a magistrate with a similar power to that given to the District and
Supreme Courts in section 592A (Pre-trial directions and rulings) of the
Criminal Code. Under this new provision the magistrate may give binding
directions to a party to the proceedings about any aspect of the conduct of
the proceeding. For example, directions can settle at a very early stage in
the matter how an alleged victim of an offence may give their evidence.
Where the proceeding relates to an indictable offence no costs in relation
to a directions hearing are available.
Clause 58 amends section 84 that excuses a defendant represented by
counsel or solicitor from having to appear on every mention of a matter in
the Magistrates Court unless the matter is one where a charge is being
determined, an examination of witnesses is being held or a penalty is
imposed.
Clause 59 amends section 158A (Exercise of discretion in relation to an
award of costs) and provides that an unreasonable failure to comply with a
direction under section 83A may be taken into account when exercising a
discretion whether or not to make an award for costs under section 158.
PART 9--AMENDMENT OF PENALTIES AND
SENTENCES ACT 1992
Clause 60 provides that this part amends the Penalties and Sentences Act
1992.
Clause 61 amends section 92 (Effect of order) and allows an order of
probation to be combined with up to 12 months imprisonment.
Clause 62 amends section 146(2) in response to some judicial criticism
[R v Holcroft [1997] 2 Qld R 392] because of the confusing use of "may"
and "must". The use of the word "must" will now make it mandatory for a
court of like on higher jurisdiction to deal with an offender for the
suspended imprisonment when the matter is before a court of like or higher
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Criminal Law Amendment Bill 2002
jurisdiction unless a court or higher jurisdiction considers that it would be
in the interests of justice for the offender to be dealt with under section 147
by the court that made the order.
Clause 63 amends section 147 (Power of court mentioned in section
146) and allows the extension of an operational period for one year at any
time in the term of a suspended sentence. The amendment also clarifies
that an operational period can be re-instated when an offender is being
dealt with a suspended sentence after the operational period has ended and
extended for a further year.
Clause 64 amends section 171 (Review - periodic) to provide that the
first review for an indefinite sentence, when the nominal sentence is life
imprisonment, is 15 years. The first review period for offenders where the
nominal sentence is life imprisonment and section 305(2) of the Criminal
Code applies will be 20 years.
Section 305(2) of the Criminal Code applies when a person is convicted
of more than one murder.
These periods equivalent to the period of time that must be served before
a prisoner sentenced to serve life imprisonment is eligible for parole (see
section 135(2)(b) and (c) of the Corrective Services Act 2000).
A transitional provision in section 171 (3) provides that the previous
provision continues to apply for those indefinite sentences imposed in
relation to an offence committed before the commencement of the
Criminal Law Amendment Act 2002.
Clause 65 inserts a new transitional provision providing for the
application of the changes to section 92(1)(b)(i), section 147(1)(a).
PART 10--AMENDMENT OF POLICE POWERS AND
RESPONSIBILITIES ACT 2000
Clause 66 provides that this part amends the Police Powers and
Responsibilities Act 2000.
Clause 67 amends section 219 (Notice to appear equivalent to a
complaint and summons) by providing that, when a notice to appear or an
attendance notice is issued under section 225(2)(b) , the police officer that
arrested the person remains the person who initiated proceedings.
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Criminal Law Amendment Bill 2002
This provision ensures that the amendments to section 7 of the Bail Act
1980 are acknowledged in the Police Powers and Responsibilities Act
2000.
Clause 68 amends section 225 (Duty of police officer receiving custody
of person arrested for offence) to include the new power to give a notice to
appear or an attendance notice in accordance with section 7 of the Bail Act
1980. The provision has been renumbered.
SCHEDULE
MINOR AMENDMENTS
This schedule makes discrete technical amendments to a number of Acts.
The amendment to the Bail Act 1980 corrects a grammatical error.
The amendment to the Crimes (Confiscation) Act 1989 corrects
typographical errors.
The amendment to the Criminal Code corrects the heading in Part 5
because of the relocation of the defamation defences and corrects a
reference to section 540 in the Mental Health Act 2000.
The amendment to the Criminal Law Amendment Act 1945 corrects the
heading to reflect the words of the section.
The amendment to the Criminal Offence Victims Act 1995 updates the
reference to the relevant rule in the Criminal Practice Rules 1999.
The amendment to the District Court Act 1967 amends section 61(2)(b)
to remove an unnecessary reference to section 317A and update the
reference to the relevant offences following the passage of the Criminal
Law Amendment Act 2000.
The amendment to the Evidence Act 1977 updates the reference to the
relevant offences in Schedule 2 to accord with the changes made in the
Criminal Law Amendment Act 2000. Schedule 2 lists those offences where
the spouse of an accused person is compellable to give evidence for the
prosecution.
18
Criminal Law Amendment Bill 2002
The amendments to the Mental Health Act 2000 correct a reference to
the wrong sub-section in a number of different provisions.
© State of Queensland 2002