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PARLIAMENT OF VICTORIA
Crimes (Amendment) Act 1997
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 2
3. Principal Act 3
PART 2--SEXUAL OFFENCES 4
Division 1--Amendment of Crimes Act 1958 4
4. Jury directions on consent 4
5. Sexual relationship with child under the age of 16 4
6. Jury warnings in sexual cases 5
7. Orders for separate trial in sexual cases 5
8. New section 587 inserted 6
587. Transitional provisions (Crimes (Amendment) Act
1997--Part 2) 6
Division 2--Amendment of Evidence Act 1958 7
9. Evidence as to sexual activities on sexual offence charges 7
10. Alternative arrangements for giving evidence in certain
proceedings 9
11. New section 153 inserted 9
153. Transitional provisions (Crimes (Amendment) Act
1997) 10
Division 3--Amendment of Magistrates' Court Act 1989 10
12. Procedure at close of prosecution case in committal proceeding 10
13. Transitional provision 11
PART 3--PROPENSITY EVIDENCE 12
14. New section 398A inserted 12
398A. Admissibility of propensity evidence 12
15. New section 588 inserted 12
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Clause Page
588. Transitional provisions (Crimes (Amendment) Act
1997--Part 3) 12
PART 4--FORENSIC PROCEDURES 14
16. Definitions 14
17. Court ordered compulsory procedure 15
18. Forensic procedure on child 16
19. Registered nurses may conduct forensic procedure 16
20. Caution before forensic procedure 17
21. Procedure for taking samples 17
22. Execution of order 17
23. Analysis of samples 18
24. Admission of evidence relating to forensic procedures 19
25. New sections 464ZF and 464ZFA inserted 21
464ZF. Forensic procedure following the commission of
forensic sample offence 21
464ZFA. Warrants issued for forensic procedures under section
464ZF 24
26. New sections 464ZFB to 464ZFE inserted 26
464ZFB. Retention of information following finding of guilt 26
464ZFC. Destruction of information following finding of guilt 27
464ZFD. Computerised databases 28
464ZFE. Report to Attorney-General 29
27. Destruction of identifying information 29
28. New sections 464ZGA to 464ZGF inserted 31
464ZGA. Forensic information from juveniles 31
464ZGB. Samples given voluntarily 32
464ZGC. Withdrawal of consent prior to giving sample 34
464ZGD. Procedure to take sample 35
464ZGE. Safeguards after giving sample 35
464ZGF. Application to court where consent to retention of
sample withdrawn 39
29. Immunity of registered nurses 41
30. New section 589 inserted 42
589. Transitional provisions (Crimes (Amendment) Act
1997--Part 4) 42
31. New Schedule 8 inserted 44
SCHEDULE 8 44
NOTES 53
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531216B.I1-7/10/97
PARLIAMENT OF VICTORIA
A BILL
to amend the Crimes Act 1958, the Evidence Act 1958 and the
Magistrates' Court Act 1989 and for other purposes.
Crimes (Amendment) Act 1997
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The purpose of this Act is to--
(a) amend the Crimes Act 1958 and the
5 Evidence Act 1958 so as to--
(i) create a presumption that multiple
counts of sexual offences against the
one accused are to be tried together;
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Crimes (Amendment) Act 1997
s. 2
Act No.
(ii) broaden the scope of the sexual offence
created by section 47A of the Crimes
Act 1958;
(iii) provide for certain procedural changes
5 on trials of sexual offences;
(b) amend the Crimes Act 1958 with respect to
the admissibility of propensity evidence;
(c) amend the Crimes Act 1958 so as to--
(i) extend the range of offences for which
10 a person can be compelled to undergo a
forensic procedure;
(ii) permit registered nurses to conduct
forensic procedures;
(iii) enable a member of the police force to
15 apply to a court for a forensic sample
from persons found guilty of certain
offences;
(iv) extend the grounds on which a member
of the police force may apply for a
20 court order directing a person to
undergo a compulsory procedure;
(v) make provision for persons to volunteer
to give samples to provide information
for inclusion in a computerised
25 database.
2. Commencement
(1) Subject to this section, this Act comes into
operation on the day on which it receives the
Royal Assent.
30 (2) Parts 2 and 3 come into operation on 1 January
1998.
(3) Subject to sub-section (4), Part 4 comes into
operation on a day to be proclaimed.
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Crimes (Amendment) Act 1997
s. 3
Act No.
(4) If Part 4 does not come into operation before
1 July 1998, it comes into operation on that day.
3. Principal Act
No. 6231.
In this Act, the Crimes Act 1958 is called the
Reprint No. 13
5 Principal Act. as at 5 June
1997. Further
amended by
Nos 66/1996,
26/1997,
30/1997,
44/1997 and
48/1997.
_______________
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Crimes (Amendment) Act 1997
s. 4
Act No.
PART 2--SEXUAL OFFENCES
Division 1--Amendment of Crimes Act 1958
4. Jury directions on consent
(1) In section 37 of the Principal Act--
5 (a) for "In a relevant case" substitute "If
relevant to the facts in issue in a
proceeding";
(b) at the end of paragraph (c) insert--
"--
10 and relate any direction given to the facts in
issue in the proceeding so as to aid the jury's
comprehension of the direction.".
(2) At the end of section 37 of the Principal Act
insert--
15 "(2) A judge must not give to a jury a direction of
a kind referred to in sub-section (1) if the
direction is not relevant to the facts in issue
in the proceeding.".
5. Sexual relationship with child under the age of 16
20 (1) In section 47A of the Principal Act--
(a) in sub-section (1) omit "and who is under his
or her care, supervision or authority";
(b) in sub-section (2)(a) omit "and under his or
her care, supervision or authority".
25 (2) In section 47A(2)(a) of the Principal Act, omit
"particular" (where secondly occurring).
(3) In section 47A(2)(b) of the Principal Act, for
"such an act also" substitute "an act which would
constitute an offence under a provision of this
30 Subdivision or Subdivision (8A) or (8B)".
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(4) In section 47A of the Principal Act, after sub-
section (2) insert--
"(2A) It is not necessary that the alleged acts be of
a similar nature or constitute an offence
5 under the same provision.".
(5) In section 47A of the Principal Act, for sub-
section (3) substitute--
"(3) It is not necessary to prove an act referred to
in sub-section (2)(a) or (b) with the same
10 degree of specificity as to date, time, place,
circumstances or occasion as would be
required if the accused were charged with an
offence constituted by that act instead of an
offence against sub-section (1).".
15 6. Jury warnings in sexual cases
(1) In section 61(1)(b) of the Principal Act, for sub-
paragraphs (i) and (ii) substitute "inform the jury
that there may be good reasons why a victim of a
sexual assault may delay or hesitate in
20 complaining about it".
(2) In section 61 of the Principal Act, after sub-
section (2) insert--
"(3) Despite sub-section (2), a judge must not
make any comment on the reliability of
25 evidence given by the complainant in a
proceeding to which sub-section (1) applies
if there is no reason to do so in the particular
proceeding in order to ensure a fair trial.".
7. Orders for separate trial in sexual cases
30 (1) In section 372 of the Principal Act, after sub-
section (3) insert--
'(3AA) Despite sub-section (3) and any rule of law
to the contrary, if, in accordance with this
Act, 2 or more counts charging sexual
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s. 8
Act No.
offences are joined in the same presentment,
it is presumed that those counts are triable
together.
(3AB) The presumption created by sub-section
5 (3AA) is not rebutted merely because
evidence on one count is inadmissible on
another count.
(3AC) In sub-section (3AA) "sexual offence"
means--
10 (a) an offence under Subdivision (8A),
(8B), (8C), (8D) or (8E) of Division 1
of Part I or under any corresponding
previous enactment or an attempt to
commit any such offence or an assault
15 with intent to commit any such offence;
or
(b) an offence to which clause 1 of
Schedule 1 to the Sentencing Act 1991
applies.'.
20 8. New section 587 inserted
After proposed section 586 of the Principal Act
insert--
"587. Transitional provisions (Crimes
(Amendment) Act 1997--Part 2)
25 (1) The amendments of this Act made by
sections 4, 6 and 7 of the Crimes
(Amendment) Act 1997 apply to any trial
that commences on or after 1 January 1998,
irrespective of when the offence to which the
30 trial relates is alleged to have been
committed.
(2) For the purposes of sub-section (1), a trial
commences on arraignment of the accused in
accordance with Subdivision (12) of
35 Division 1 of Part III.
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Crimes (Amendment) Act 1997
s. 9
Act No.
(3) The amendments of section 47A of this Act
made by section 5(1) of the Crimes
(Amendment) Act 1997 apply only to
offences against section 47A(1) alleged to
5 have been committed on or after 1 January
1998.
(4) For the purposes of sub-section (3), if an
offence is alleged to have been committed
between two dates of which one is before
10 and one is on or after 1 January 1998, the
offence is alleged to have been committed
before 1 January 1998.
(5) The amendments of section 47A of this Act
made by section 5(2), (3), (4) and (5) of the
15 Crimes (Amendment) Act 1997 apply to
offences against section 47A(1) for which a
charge is filed on or after 1 January 1998,
irrespective of when the offence is alleged to
have been committed.".
20 Division 2--Amendment of Evidence Act 1958
9. Evidence as to sexual activities on sexual offence
charges
(1) In section 37A(1) of the Evidence Act 1958, in
Rule (5) before paragraph (a) insert--
25 "(aa) must, in the case of an application to cross-
examine the complainant as to his or her
sexual activities--
(i) be in writing and given to the Director
of Public Prosecutions--
30 (A) in the case of a committal
proceeding, on or before the
committal mention date; or
(B) in the case of a trial, at least 14
days before the date fixed by the
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Crimes (Amendment) Act 1997
s. 9
Act No.
Criminal Trial Listing Directorate
as the date on which the trial is to
be listed for hearing;
(ii) set out--
5 (A) the initial questions sought to be
asked of the complainant; and
(B) the scope of the questioning
sought to flow from the initial
questioning; and
10 (C) how the evidence sought to be
elicited from the questioning has
substantial relevance to facts in
issue or why it is proper matter for
cross-examination as to credit;".
15 (2) In section 37A(1) of the Evidence Act 1958, in
paragraph (a) of Rule (5) for "made" substitute
"heard".
(3) In section 37A(1) of the Evidence Act 1958, after
Rule (5) insert--
20 "(5A) The Director of Public Prosecutions must
forward an application referred to in Rule
(5)(aa) given to the Director of Public
Prosecutions under that Rule--
(a) in the case of a committal proceeding,
25 to the registrar at the venue of the
Magistrates' Court at which the
committal proceeding is to be held on
or before the committal mention date;
(b) in the case of a trial, to the Criminal
30 Trial Listing Directorate together with
the copy of the presentment required to
be forwarded to that Directorate.
(5B) Nothing in Rule (5) or (5A) prevents a court,
because of the existence of exceptional
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Crimes (Amendment) Act 1997
s. 10
11
Act No.
circumstances, hearing and determining an
application to cross-examine the complainant
as to his or her sexual activities that is made
after the expiry of the period referred to in
5 Rule (5)(aa)(i).
(5C) Despite anything to the contrary in Rule (5),
the court may, because of the existence of
exceptional circumstances, waive the
requirement that an application to cross-
10 examine the complainant as to his or her
sexual activities be made in writing.".
10. Alternative arrangements for giving evidence in
certain proceedings
In section 37C(2) of the Evidence Act 1958, for
15 paragraphs (a) and (b) substitute--
"(a) the proceeding relates (wholly or partly) to a
charge for--
(i) a sexual offence; or
(ii) an offence where the conduct
20 constituting the offence consists wholly
or partly of taking part, or attempting to
take part, in an act of sexual penetration
as defined in section 35 of the Crimes
Act 1958; or
25 (b) the proceeding relates (wholly or partly) to a
charge for an indictable offence which
involves an assault on, or injury or a threat of
injury to, a person and the court is satisfied
that the witness is a person with impaired
30 mental functioning or under the age of 18.".
11. New section 153 inserted
After section 152 of the Evidence Act 1958
insert--
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Crimes (Amendment) Act 1997
s. 12
Act No.
"153. Transitional provisions (Crimes
(Amendment) Act 1997)
(1) The amendments of this Act made by the
Crimes (Amendment) Act 1997 apply to--
5 (a) any trial that commences on or after 14
January 1998; and
(b) any committal proceeding or hearing of
a charge for an offence that commences
on or after 1 January 1998--
10 irrespective of when the offence to which the
trial, committal proceeding or hearing relates
is alleged to have been committed.
(2) For the purposes of sub-section (1)--
(a) a trial commences on arraignment of
15 the accused in accordance with
Subdivision (12) of Division 1 of Part
III of the Crimes Act 1958; and
(b) a committal proceeding commences on
the committal mention date; and
20 (c) a hearing of a charge for an offence
commences on the taking of a formal
plea from the accused.".
Division 3--Amendment of Magistrates' Court Act 1989
12. Procedure at close of prosecution case in committal
25 proceeding
In clause 11(1)(b) of Schedule 5 to the
Magistrates' Court Act 1989, after "that Act"
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Crimes (Amendment) Act 1997
Act No.
insert "and of Rules (5) to (5C) in section 37A(1)
of the Evidence Act 1958".
13. Transitional provision
In Schedule 8 to the Magistrates' Court Act
5 1989, after clause 17 insert--
"18. The amendment of clause 11(1)(b) of Schedule 5 made
by section 12 of the Crimes (Amendment) Act 1997
applies to any committal proceeding that commences
on or after 1 January 1998, irrespective of when the
10 offence to which the committal proceeding relates is
alleged to have been committed, and for this purpose a
committal proceeding commences on the committal
mention date.".
_______________
15
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Crimes (Amendment) Act 1997
s. 14
Act No.
PART 3--PROPENSITY EVIDENCE
14. New section 398A inserted
After section 398 of the Principal Act insert--
"398A. Admissibility of propensity evidence
5 (1) This section applies to proceedings for an
indictable or summary offence.
(2) Propensity evidence relevant to facts in issue
in a proceeding for an offence is admissible
if the court considers that in all the
10 circumstances it is just to admit it despite
any prejudicial effect it may have on the
person charged with the offence.
(3) The possibility of a reasonable explanation
consistent with the innocence of the person
15 charged with an offence is not relevant to the
admissibility of evidence referred to in sub-
section (2).
(4) Nothing in this section prevents a court
taking into account the possibility of a
20 reasonable explanation consistent with the
innocence of the person charged with an
offence when considering the weight of the
evidence or the credibility of a witness.
(5) This section has effect despite any rule of
25 law to the contrary.".
15. New section 588 inserted
After proposed section 587 of the Principal Act
insert--
"588. Transitional provisions (Crimes
30 (Amendment) Act 1997--Part 3)
(1) Section 398A applies to any trial, committal
proceeding or hearing of a charge for an
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s. 15
Act No.
offence that commences on or after 1
January 1998, irrespective of when the
offence to which the trial, committal
proceeding or hearing relates is alleged to
5 have been committed.
(2) For the purposes of sub-section (1)--
(a) a trial commences on arraignment of
the accused in accordance with
Subdivision (12) of Division 1 of Part
10 III; and
(b) a committal proceeding commences on
the committal mention date; and
(c) a hearing of a charge for an offence
commences on the taking of a formal
15 plea from the accused.".
_______________
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Crimes (Amendment) Act 1997
s. 16
Act No.
PART 4--FORENSIC PROCEDURES
16. Definitions
In section 464(2) of the Principal Act--
(a) before the definition of "authorised person"
5 insert--
' "approved mental health service" has the
same meaning as in the Mental Health
Act 1986;';
(b) for the definition of "medical practitioner"
10 substitute--
' "medical practitioner" means a registered
medical practitioner within the meaning
of the Medical Practice Act 1994;';
(c) after the definition of "non-intimate sample"
15 insert--
' "nurse" means a registered nurse within
the meaning of the Nurses Act 1993;';
(d) the definition of "registered medical
practitioner" is repealed;
20 (e) before the definition of "relevant suspect"
insert--
' "related material and information"--
(a) in relation to any sample taken in
a forensic procedure conducted in
25 accordance with sections 464R to
464ZA or section 464ZF, means
notes and video-recording made
of the forensic procedure and any
information which may identify
30 the person contained in any record
of or report relating to the forensic
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s. 17
Act No.
procedure and in any copy of a
record or report;
(b) in relation to any sample
voluntarily given by a person in
5 accordance with sections 464ZGB
to 464ZGD, means notes and
video-recording (if any) made of
the procedure to take the sample
and any information which may
10 identify the person contained in
any record of or report relating to
the taking of the sample and in
any copy of a record or report;';
(f) in paragraphs (a) and (b) of the definition of
15 "relevant suspect", for "75, 75A or 318"
substitute "75, 75A, 76, 77, 197 (in
circumstances where the offence is charged
as arson), 197A, 248 or 318 or under section
71, 72(1)(ab) or 72(1)(b) of the Drugs,
20 Poisons and Controlled Substances Act
1981";
(g) after the definition of "relevant suspect"
insert--
' "security patient" has the same meaning
25 as in the Mental Health Act 1986;'.
17. Court ordered compulsory procedure
(1) In section 464T(3)(c) of the Principal Act, for
"either" substitute "any of the following applies".
(2) In section 464T(3)(c)(ii)(B) of the Principal Act,
30 for "and" substitute "or".
(3) After section 464T(3)(c)(ii) of the Principal Act,
insert--
"(iii) the victim of the offence has not been found,
and there are reasonable grounds to believe
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Crimes (Amendment) Act 1997
s. 18
Act No.
that material reasonably believed to be from
the body of the victim is present on a person
suspected of having committed the offence;
or
5 (iv) the offence in respect of which the
application is made is an offence against a
provision of Subdivision (8A), (8B) or (8C)
of Division 1 of Part I and there are
reasonable grounds to believe that the
10 conduct of the procedure on the person may
be relevant in determining the paternity of a
child that has been conceived allegedly as a
result of the offence; and".
18. Forensic procedure on child
15 In section 464U(3) of the Principal Act, in
paragraphs (a) and (b) for "75, 75A or 318"
substitute "75, 75A, 76, 77, 197 (in
circumstances where the offence is charged as
arson), 197A, 248 or 318 or under section 71,
20 72(1)(ab) or 72(1)(b) of the Drugs, Poisons and
Controlled Substances Act 1981".
19. Registered nurses may conduct forensic procedure
(1) In section 464S(1)(c) of the Principal Act, after
"medical practitioner" insert "or nurse".
25 (2) In section 464Z(3)(a) and (3)(c) of the Principal
Act, after "medical practitioner" insert "or nurse".
(3) In section 464Z(4) of the Principal Act, after
"medical practitioner" insert "or nurse".
(4) In section 464Z(5) of the Principal Act, after
30 "medical practitioner" (wherever occurring) insert
", nurse".
(5) In section 464Z(8) of the Principal Act, after
"medical practitioner" insert ", nurse".
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s. 20
Act No.
(6) In section 464ZA(4)(b) of the Principal Act--
(a) after "independent medical practitioner"
insert "or independent nurse";
(b) after "the medical practitioner" insert
5 ", nurse".
20. Caution before forensic procedure
In section 464Y(1) of the Principal Act--
(a) for "this Subdivision" substitute "sections
464R to 464ZA or section 464ZF (as the
10 case may be)";
(b) for "registered medical practitioner"
substitute "medical practitioner, nurse".
21. Procedure for taking samples
In section 464Z(6) of the Principal Act--
15 (a) in paragraph (a), after "medical practitioner"
insert ", nurse";
(b) after paragraph (a) insert--
"(ab) in the presence of a member of the
police force who is present to witness
20 the taking of the sample or the conduct
of the physical examination and is of
the same sex, if practicable, as the
person from whom the sample is to be
taken or who is to be examined; and";
25 (c) in paragraph (c)(i), for "of the same sex, if
practicable, as the person from whom the
sample is to be taken or who is to be
examined" substitute "required by
paragraph (ab) to be present".
30 22. Execution of order
(1) In section 464ZA(1) of the Principal Act--
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s. 23
Act No.
(a) after "compulsory procedure," insert "or an
order under section 464ZF for the conduct of
a forensic procedure,";
(b) after "medical practitioner," insert "nurse,".
5 (2) In section 464ZA(5) of the Principal Act, after
"compulsory" insert "or forensic".
(3) In section 464ZA of the Principal Act, for sub-
section (6) substitute--
"(6) After an order under section 464T(3),
10 464U(7), 464V(5) or 464ZF is executed--
(a) if the procedure was video-recorded,
the person who video-recorded the
conduct of the procedure, or the
member of the police force who
15 witnessed the conduct of the procedure,
must endorse on the order his or her
own name and sign the endorsement; or
(b) if an independent medical practitioner,
nurse, dentist or other person witnessed
20 the conduct of the procedure, the
witness must endorse on the order his
or her own name and sign the
endorsement.
(6A) A member of the police force must give a
25 copy of the order so endorsed to the person
on whom the procedure was conducted.".
(4) In section 464ZA(7) of the Principal Act, after
"compulsory" insert "or forensic".
23. Analysis of samples
30 At the end of section 464ZC of the Principal Act
insert--
"(2) If material, reasonably believed to be from
the body of a victim of an indictable offence
which has not been found, has been found on
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s. 24
Act No.
a person reasonably believed to have been
associated with the commission of the
offence, and there is sufficient material to be
analysed both in the investigation of the
5 offence and on behalf of a person from
whom a sample has been taken in relation to
that offence, a part of the material sufficient
for analysis must, on request, be delivered to
that person.
10 (3) If--
(a) a sample has been taken from a child in
connection with an investigation into an
offence against a provision of
Subdivision (8A), (8B) or (8C) of
15 Division 1 of Part I; and
(b) that child was conceived allegedly as a
result of that offence--
a person suspected of having committed that
offence and from whom a sample has been
20 taken in relation to that offence may request
a part of the child's sample.
(4) A part of that child's sample requested by a
person under sub-section (3) must be
delivered to that person provided that there is
25 sufficient material to be analysed both in the
investigation of the offence and on behalf of
the person suspected of having committed
the offence.".
24. Admission of evidence relating to forensic procedures
30 (1) In section 464ZE(1) of the Principal Act--
(a) after "person" (where first occurring) insert
", or from a sample voluntarily given by a
person in accordance with sections 464ZGB
to 464ZGD,";
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(b) in paragraph (a), for "or section 464ZF"
substitute ", sections 464ZF to 464ZFB,
sections 464ZGB to 464ZGD or section
464ZGF";
5 (c) in paragraph (d), for "section 464ZG"
substitute "section 464ZFC, 464ZG,
464ZGA or 464ZGE".
(2) In section 464ZE(2) of the Principal Act--
(a) after "forensic procedure" insert ", or from a
10 sample voluntarily given by a person in
accordance with sections 464ZGB to
464ZGD,";
(b) in paragraph (a), omit "are exceptional and".
(3) In section 464ZE of the Principal Act, for sub-
15 section (3) substitute--
"(2A) In determining whether the circumstances
justify the reception of evidence otherwise
inadmissible by reason of sub-section (1)(a),
the court may have regard to the following--
20 (a) the probative value of the evidence,
including whether equivalent evidence
or evidence of equivalent probative
value could have been obtained by
other means;
25 (b) the reasons given for the failure to
comply with a provision referred to in
sub-section (1)(a);
(c) the gravity of that failure and whether it
deprived the person of a significant
30 protection under this Subdivision;
(d) whether that failure was intentional or
reckless;
(e) the nature of the requirement that was
not complied with;
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s. 25
Act No.
(f) the nature of the offence alleged against
the person and the subject-matter of the
proceedings;
(g) whether the reception of the evidence
5 would seriously undermine the
protection given to persons under this
Subdivision;
(h) any other matters the court considers
relevant.
10 (3) The probative value of the evidence does not
by itself justify the reception of the
evidence.".
25. New sections 464ZF and 464ZFA inserted
For section 464ZF of the Principal Act
15 substitute--
'464ZF. Forensic procedure following the
commission of forensic sample offence
(1) In this section--
"child" means a child aged 10 years or more
20 but under 17 years;
"forensic sample offence" means any
offence specified in Schedule 8.
(2) If at any time on or after the commencement
of section 25 of the Crimes (Amendment)
25 Act 1997 a court finds a person guilty of--
(a) a forensic sample offence; or
(b) an offence of conspiracy to commit,
incitement to commit or attempting to
commit a forensic sample offence--
30 a member of the police force, at any time
following that finding but not later than 6
months after the expiration of any appeal
period or the final determination of an appeal
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(whichever is the later), may apply to the
court for an order directing the person to
undergo a forensic procedure for the taking
of a sample from any part of the body and
5 the court may make an order accordingly.
(3) If--
(a) at any time before the commencement
of section 25 of the Crimes
(Amendment) Act 1997, a person has
10 been found guilty by a court of a
forensic sample offence; and
(b) at any time on or after that
commencement, that person is serving a
term of imprisonment or a period of
15 detention in a prison, police gaol or
youth training centre or as a security
patient in an approved mental health
service for any offence, whether or not
a forensic sample offence--
20 a member of the police force may apply to
the Magistrates' Court or the Children's
Court (as the case may be) for an order
directing the person to undergo a forensic
procedure for the taking of a sample from
25 any part of the body and the court may make
an order accordingly.
(4) In any application to a court under sub-
section (2) or (3), the member of the police
force must specify the type of sample
30 (whether intimate or non-intimate) sought to
be taken in the forensic procedure.
(5) If an application made under sub-section (3)
is in respect of a forensic procedure to be
conducted on a person who is a child, notice
35 of the application must be served on the
child and a parent or guardian of the child.
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(6) An order made by a court under sub-section
(2) or (3) before the appeal period in relation
to the forensic sample offence has expired or
an appeal (if any) has been finally
5 determined (whichever is the later), must not
be executed unless--
(a) that appeal period expires; or
(b) an appeal (if any) is finally determined
and the conviction for the forensic
10 sample offence is upheld--
whichever is the later.
(7) If on appeal a conviction for the forensic
sample offence is quashed, an order made by
a court under sub-section (2) or (3) ceases to
15 have effect.
(8) A court hearing an application under sub-
section (2) or (3)--
(a) must take into account the seriousness
of the circumstances of the forensic
20 sample offence in determining whether
to make the order under sub-section (2)
or (3); and
(b) must be satisfied that, in all the
circumstances, the making of the order
25 is justified; and
(c) may make such inquiries on oath or
otherwise as it considers desirable.
(9) If a court makes an order under sub-section
(2) or (3), it must--
30 (a) give reasons for its decision and cause a
copy of the order and reasons to be
served--
(i) if the order directs a person (other
than a child) to undergo the
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forensic procedure, on the person;
or
(ii) if the order directs a child to
undergo the forensic procedure,
5 on the child and a parent or
guardian of the child; and
(b) inform the person ordered to undergo
the forensic procedure that a member of
the police force may use reasonable
10 force to enable the procedure to be
conducted.
(10) A failure of a court to comply with sub-
section (9) does not invalidate any order
made by it but constitutes non-compliance
15 for the purposes of section 464ZE(1)(a).
(11) If a forensic procedure has been conducted
on a person in accordance with this section, a
copy of every forensic report must be given
or sent by registered post as soon as
20 practicable but not more than 7 days after the
procedure was conducted--
(a) if the person is not a child, to that
person; or
(b) if the person is a child, to that child and
25 a parent or guardian of that child.
464ZFA. Warrants issued for forensic procedures
under section 464ZF
(1) If before a court makes an order under
section 464ZF(3) directing a person to
30 undergo a forensic procedure, that person
has been released from the prison, police
gaol, youth training centre or approved
mental health service where he or she was
serving a term of imprisonment or a period
35 of detention at the time the application for
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the order was made, the court may issue a
warrant authorising the person to whom it is
directed, if necessary--
(a) to break, enter and search by day or by
5 night any place where the person
named in the warrant is suspected to be;
and
(b) to arrest the person; and
(c) to bring the person before the court for
10 the hearing of the application; and
(d) if that application is granted, to detain
the person for as long as reasonably
permits the conduct of the forensic
procedure.
15 (2) A warrant issued under sub-section (1) may
be directed to--
(a) a named member of the police force; or
(b) generally all members of the police
force.
20 (3) A warrant issued under sub-section (1)
directed to a named member of the police
force may be executed by any member of the
police force.
(4) If a court issues a warrant under sub-section
25 (1) it must--
(a) give reasons for its decision; and
(b) cause a note of the reasons to be
entered in the records of the court.
(5) A failure of a court to comply with sub-
30 section (4) does not invalidate any order
made by it but constitutes non-compliance
for the purposes of section 464ZE(1)(a).
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(6) If a person is arrested under a warrant issued
under sub-section (1), the warrant ceases to
have effect immediately after the procedure
is completed or on the expiration of a
5 reasonable time (whichever is the earlier).'.
26. New sections 464ZFB to 464ZFE inserted
Before section 464ZG of the Principal Act
insert--
"464ZFB. Retention of information following finding
10 of guilt
(1) If at any time on or after the commencement
of section 26 of the Crimes (Amendment)
Act 1997--
(a) a forensic procedure is conducted on a
15 person in accordance with section
464R, 464T(3), 464U(7) or 464V(5);
and
(b) a court finds the person guilty of--
(i) the offence in respect of which the
20 forensic procedure was conducted;
or
(ii) any other offence arising out of
the same circumstances; or
(iii) any other offence in respect of
25 which evidence obtained as a
result of the forensic procedure
had probative value--
a member of the police force, within 6
months after the expiry of the appeal period
30 in respect of the offence or the final
determination of an appeal (whichever is the
later), may apply to the Magistrates' Court or
Children's Court (as the case may be) for an
order permitting the retention of any sample
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taken and any related material and
information and the court may make an order
accordingly.
(2) A court hearing an application under sub-
5 section (1)--
(a) must take into account the seriousness
of the circumstances of the offence in
determining whether to make the order
under sub-section (1); and
10 (b) must be satisfied that, in all the
circumstances, the making of the order
is justified; and
(c) may make such inquiries on oath or
otherwise as it considers desirable.
15 (3) If a court makes an order under sub-section
(1), it must give reasons for its decision and
cause a copy of the order and reasons to be
served on the person on whom the forensic
procedure was conducted.
20 (4) A failure of a court to comply with sub-
section (3) does not invalidate any order
made by it but constitutes non-compliance
for the purposes of section 464ZE(1)(a).
464ZFC. Destruction of information following
25 finding of guilt
(1) Subject to section 464ZFD(2), if--
(a) a member of the police force does not
make an application under section
464ZFB within the period specified by
30 sub-section (1) of that section; or
(b) a court refuses to make an order under
section 464ZFB--
the Chief Commissioner of Police must
without delay destroy, or cause to be
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destroyed, any sample taken and any related
material and information.
(2) If a sample or related material and
information is required to be destroyed in
5 accordance with this section, the Chief
Commissioner of Police must, if the person
on whom the procedure was conducted so
requests, within 14 days after receiving the
request, notify in writing that person of
10 whether the destruction has occurred.
(3) A person who knowingly--
(a) fails to destroy; or
(b) uses, or causes or permits to be used--
a sample or related material and information
15 required by this section to be destroyed is
guilty of a summary offence punishable on
conviction by level 8 imprisonment (1 year
maximum) or a level 8 fine (120 penalty
units maximum).
20 (4) A person who at any time uses, or causes or
permits to be used, or otherwise disseminates
information derived from, any sample or
related material and information required by
this section to be destroyed except in good
25 faith for the purposes of section 464ZFD(2)
is guilty of a summary offence punishable on
conviction by level 8 imprisonment (1 year
maximum) or a level 8 fine (120 penalty
units maximum).
30 464ZFD. Computerised databases
(1) Information (including information which
may identify the person on whom a forensic
procedure was conducted) obtained from the
analysis of samples taken or procedures
35 conducted in accordance with sections 464R
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to 464ZA, section 464ZF or sections
464ZGB to 464ZGD (as the case may be),
and which in accordance with this
Subdivision may be retained, may be
5 included in a computerised database.
(2) Information (other than information which
may identify the person on whom a forensic
procedure was conducted) obtained from the
analysis of samples taken or procedures
10 conducted in accordance with this
Subdivision may be retained and included in
a computerised database for statistical
purposes.
464ZFE. Report to Attorney-General
15 The Chief Commissioner of Police, on or as
soon as practicable after 1 January, 1 April, 1
July and 1 October of each year, must submit
to the Attorney-General a report that
contains--
20 (a) a list that identifies by a unique
identifying number every sample taken
in accordance with this Subdivision
within the period to which the report
relates; and
25 (b) the date on which every sample listed
in the report was taken; and
(c) information on whether any of the
samples listed in the report or in any
previous report submitted under this
30 section have been destroyed within the
period to which the report relates; and
(d) if a sample has been destroyed, the date
of destruction and the name of the
person who has destroyed it.".
35 27. Destruction of identifying information
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(1) In section 464ZG of the Principal Act, sub-section
(2) is repealed.
(2) In section 464ZG(3) of the Principal Act--
(a) for "sub-section (2)" substitute "section
5 464ZFD(2)";
(b) in paragraph (a), for "6" substitute "12";
(c) for "notes and video-recording made of the
forensic procedure and any information
which may identify the person contained in
10 any record of or report relating to the
forensic procedure and in any copy of a
record or report" substitute "any related
material and information".
(3) In section 464ZG(4) of the Principal Act--
15 (a) for ", notes, video-recording" substitute
"and any related material";
(b) in paragraph (a), for "6" substitute "12".
(4) For section 464ZG(7) of the Principal Act
substitute--
20 "(7) If a sample or related material and
information is required to be destroyed in
accordance with this section, the Chief
Commissioner of Police must, if the person
on whom the procedure was conducted so
25 requests, within 14 days after receiving the
request, notify in writing that person of
whether the destruction has occurred.".
(5) In section 464ZG(8) of the Principal Act--
(a) after "who" insert "knowingly";
30 (b) in paragraph (b) for "or makes, or causes or
permits to be used or made" substitute ", or
causes or permits to be used";
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(c) for "notes made of a forensic procedure or
any record of or report relating to a forensic
procedure or any copy of a record or report"
substitute "related material and
5 information".
(6) In section 464ZG(9) of the Principal Act--
(a) for "or makes, or causes or permits to be
used or made" substitute ", or causes or
permits to be used";
10 (b) for "notes made of a forensic procedure, any
record of or report relating to a forensic
procedure or any copy of a record or report"
substitute "related material and information
required by this section to be destroyed ";
15 (c) for "sub-section (2)" substitute "section
464ZFD(2)".
28. New sections 464ZGA to 464ZGF inserted
After section 464ZG of the Principal Act insert--
"464ZGA. Forensic information from juveniles
20 (1) Subject to section 464ZFD(2), if--
(a) a person undergoes a forensic
procedure as a child in accordance with
this Subdivision, whether before or
after the commencement of section 28
25 of the Crimes (Amendment) Act
1997; and
(b) any sample taken is not required to be
destroyed under this Subdivision, other
than under this sub-section; and
30 (c) the person is not found guilty of any
further offence before attaining the age
of 26 years--
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the Chief Commissioner of Police must
without delay destroy, or cause to be
destroyed, any sample taken and any related
material and information.
5 (2) Sub-section (1) does not apply if the offence
in relation to which the forensic procedure
was conducted was any of the following--
(a) murder, attempted murder or
manslaughter;
10 (b) an offence or attempt to commit an
offence against section 16, 17, 18, 25,
26, 29 or 31;
(c) an offence or attempt to commit an
offence under Subdivision (8A), (8B),
15 (8C), (8D) or (8E) of Division 1 of
Part I;
(d) an offence or attempt to commit an
offence against section 75 or 75A;
(e) an offence or attempt to commit an
20 offence against section 197 (in
circumstances where the offence is
charged as arson);
(f) an offence or attempt to commit an
offence against section 197A--
25 and the person has been found guilty of that
offence.
464ZGB. Samples given voluntarily
(1) A person of or above the age of 17 years
may volunteer to give a sample (whether an
30 intimate or non-intimate sample) to a
member of the police force.
(2) A sample may only be given under this
section if the person volunteering to give it
consents in accordance with this section and
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that consent is not withdrawn prior to the
giving of the sample.
(3) A person consents in accordance with this
section only if, in the presence of an
5 independent person, he or she consents after
a member of the police force has informed
the person in language likely to be
understood by the person--
(a) that any sample that is given will be
10 analysed;
(b) that information obtained from the
analysis--
(i) will be included in a computerised
database; and
15 (ii) could produce evidence to be used
in a court;
(c) that the person is under no obligation to
give a sample;
(d) that if the person consents to give a
20 sample, he or she may at any time
before the sample is taken, withdraw
that consent;
(e) that the person may consult a legal
practitioner before deciding whether or
25 not to consent to give a sample;
(f) that the person may at any time
(including after he or she has been
charged with an offence) withdraw his
or her consent to the retention of the
30 sample;
(g) that where the person withdraws his or
her consent to the retention of the
sample, a member of the police force
may nevertheless apply to a court for an
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order to retain the sample and any
related material and information;
(h) that the person may request that the
sample be taken by or in the presence
5 of a medical practitioner, nurse or
dentist of his or her choice.
(4) A member of the police force who informs a
person of the matters in sub-section (3)
must--
10 (a) record the giving of the information and
the person's responses, if any--
(i) in writing signed by both the
person and the independent person
witnessing the giving of the
15 consent; and
(ii) by video tape-recording if
practicable, or otherwise by audio
tape-recording; and
(b) give or send by registered post to the
20 person or his or her legal practitioner,
without charge--
(i) a copy of the video or audio tape-
recording as soon as practicable,
but not more than 7 days after the
25 information is given; and
(ii) a copy of the written record,
signed by both the person and the
independent person, forthwith.
464ZGC. Withdrawal of consent prior to giving
30 sample
(1) A person, at any time prior to giving a
sample, may withdraw the consent that was
given by him or her in accordance with
section 464ZGB either--
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(a) orally; or
(b) in writing--
to a member of the police force or to the
person authorised to take the sample.
5 (2) If, prior to giving a sample, a person
withdraws his or her consent orally, a
member of the police force or the person
authorised to take the sample must, as soon
as practicable, record in writing the
10 withdrawal of consent.
464ZGD. Procedure to take sample
(1) The procedure to be conducted to take a
sample from a person following the giving of
consent in accordance with section 464ZGB
15 must--
(a) be in accordance with the procedure set
out in section 464Z; and
(b) be video-recorded, if practicable, and if
the person consents.
20 (2) If the taking of a sample voluntarily given by
a person is video-recorded, a member of the
police force must--
(a) without charge; and
(b) as soon as practicable but not more than
25 7 days after the sample was taken--
give or send by registered post a copy of the
video-recording to the person who
voluntarily gave the sample.
464ZGE. Safeguards after giving sample
30 (1) If a person has given his or her consent in
accordance with section 464ZGB, and a
sample has been taken, that person may at
any time after the sample has been taken, by
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notice in writing to the Chief Commissioner
of Police, withdraw his or her consent to the
retention of that sample.
(2) Subject to sub-section (5) and section
5 464ZFD(2), if a person has voluntarily given
a sample in accordance with sections
464ZGB to 464ZGD and either--
(a) that person in accordance with sub-
section (1) has withdrawn his or her
10 consent to the retention of that sample;
or
(b) a court has made an order under section
464ZGF for the retention of that sample
and any related material and
15 information, and--
(i) the person has not been charged
with an indictable offence at the
end of the period of 12 months
after the order of the court; or
20 (ii) the person has been so charged
but the charge is not proceeded
with, or the person is not found
guilty of the indictable offence or
any other indictable offence for
25 which the sample and any related
material and information had
probative value, whether on
appeal or otherwise, before the
end of that period--
30 the Chief Commissioner of Police, at the
time specified in sub-section (3), must
destroy, or cause to be destroyed, any sample
given and any related material and
information.
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(3) A sample and any related material and
information referred to in sub-section (2)
must be destroyed--
(a) within 28 days after the receipt of the
5 person's notice of withdrawal of
consent under sub-section (1); or
(b) in a case to which sub-section (2)(b)(i)
applies, immediately after that period of
12 months; or
10 (c) in a case to which sub-section (2)(b)(ii)
applies--
(i) within 1 month after the
conclusion of the proceedings and
the end of any appeal period; or
15 (ii) if the proceedings have been
adjourned under section 75 of the
Sentencing Act 1991, within 1
month after dismissal under that
section.
20 (4) The Chief Commissioner of Police is not
required to comply with the requirements in
sub-sections (2) and (3) to destroy or cause
to be destroyed a sample and any related
material and information by reason of the
25 person's withdrawal of consent if the
Magistrates' Court makes an order under
section 464ZGF for the retention of that
sample and any related material and
information.
30 (5) If the Magistrates' Court refuses to make an
order under section 464ZGF for the retention
of a sample and any related material and
information, and a person in accordance with
sub-section (1) has withdrawn his or her
35 consent to the retention of that sample, the
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Chief Commissioner of Police must
immediately destroy, or cause to be
immediately destroyed, the sample given and
any related material and information.
5 (6) A member of the police force may, before
the end of a period referred to in sub-section
(3)(b) or (3)(c), apply, without notice to any
other person, to the Magistrates' Court for an
order extending that period and, if the court
10 makes such an order, the reference to the
period in sub-section (3)(b) or (3)(c) is a
reference to that period as so extended.
(7) If the Magistrates' Court makes an order
under sub-section (6), it must give reasons
15 for its decision and cause a copy of the order
to be served on the person who voluntarily
gave the sample.
(8) If a sample or related material and
information is destroyed in accordance with
20 this section, the Chief Commissioner of
Police must, within 14 days, give notice of
the destruction to the person who voluntarily
gave the sample.
(9) A person who knowingly--
25 (a) fails to destroy; or
(b) uses, or causes or permits to be used--
a sample or related material and information
required by this section to be destroyed is
guilty of a summary offence punishable on
30 conviction by level 8 imprisonment (1 year
maximum) or a level 8 fine (120 penalty
units maximum).
(10) A person who at any time uses, or causes or
permits to be used, or otherwise disseminates
35 information derived from any sample or
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related material and information required by
this section to be destroyed except in good
faith for the purposes of section 464ZFD(2)
is guilty of a summary offence punishable on
5 conviction by level 8 imprisonment (1 year
maximum) or a level 8 fine (120 penalty
units maximum).
(11) This section does not prevent a member of
the police force, in respect of a person who
10 has voluntarily given a sample under
sections 464ZGB to 464ZGD--
(a) requesting, under section 464R, the
person to undergo a forensic procedure;
or
15 (b) making an application under section
464T or 464V for a court order
directing the person to undergo a
compulsory procedure.
(12) A report containing an analysis of the sample
20 taken from a person in accordance with
section 464ZGD must be given or sent by
registered post to that person as soon as
practicable but not more than 7 days after the
sample was taken.
25 464ZGF. Application to court where consent to
retention of sample withdrawn
(1) A member of the police force may apply to
the Magistrates' Court for an order to retain a
sample that has been voluntarily given by a
30 person in accordance with sections 464ZGB
to 464ZGD, and any related material and
information, and the court may make an
order accordingly, if during an investigation
into the commission of an indictable
35 offence--
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(a) either--
(i) material reasonably believed to be
from the body of a person who
committed the indictable offence
5 has been found--
(A) at the scene of the offence;
or
(B) on the victim of the offence
or on anything reasonably
10 believed to have been worn
or carried by the victim when
the offence was committed;
or
(C) on an object or person
15 reasonably believed to have
been associated with the
commission of the offence;
or
(ii) if the offence is an offence against
20 a provision of Subdivision (8A),
(8B) or (8C) of Division 1 of Part
I, and a member of the police
force reasonably believes that a
child has been conceived as a
25 result of the commission of the
offence and a sample has been
taken from that child; and
(b) a member of the police force
reasonably believes that information
30 obtained from the analysis of the
sample voluntarily given by the person,
and from any related material and
information, has probative value in
relation to the indictable offence being
35 investigated; and
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(c) the person who voluntarily gave that
sample has withdrawn his or her
consent to the retention of that sample;
and
5 (d) the information obtained from the
analysis of the voluntary sample, and
from any related material and
information, has not been destroyed in
accordance with section 464ZGE(2)(a)
10 and (3)(a).
(2) A court hearing an application under sub-
section (1) must--
(a) be satisfied on the balance of
probabilities that there are reasonable
15 grounds to believe that the person has
committed the offence in respect of
which the application is made; and
(b) be satisfied that, in all the
circumstances, the making of the order
20 is justified.
(3) If the court makes an order under sub-section
(1), it must give reasons for its decision and
cause a copy of the order and reasons to be
served on the person who voluntarily gave
25 the sample.
(4) A failure of a court to comply with sub-
section (3) does not invalidate any order
made by it but constitutes non-compliance
for the purposes of section 464ZE(1)(a).".
30 29. Immunity of registered nurses
(1) In section 464ZH of the Principal Act--
(a) omit "legally qualified";
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(b) after "medical practitioner" (where first
occurring) insert "or nurse";
(c) after "medical practitioner," (wherever
occurring) insert "nurse,";
5 (d) for the expression beginning with "was
requested to be conducted" and ending at the
end of the section, substitute--
"--
(a) was requested to be conducted on
10 another person under this Subdivision
in accordance with a request of a
member of the police force given under
section 464R or in accordance with an
order made by a court under this
15 Subdivision; or
(b) was consented to by a person in
accordance with sections 464ZGB to
464ZGD.".
(2) At the end of section 585 of the Principal Act
20 insert--
"(2) It is the intention of section 464ZH, as
amended by section 29(1) of the Crimes
(Amendment) Act 1997, to alter or vary
section 85 of the Constitution Act 1975.".
25 30. New section 589 inserted
After proposed section 588 of the Principal Act
insert--
"589. Transitional provisions (Crimes
(Amendment) Act 1997--Part 4)
30 (1) The amendment of this Act made by section
16(f), 17 or 18 of the Crimes (Amendment)
Act 1997 applies to applications made under
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section 464T(1), 464U(3) or 464V (as the
case requires) irrespective of when the
offence in respect of which the application is
made is alleged to have been committed.
5 (2) The amendment of this Act made by section
22 of the Crimes (Amendment) Act 1997
only applies with respect to orders made by a
court on or after the commencement of that
section.
10 (3) The amendments of this Act made by section
24 of the Crimes (Amendment) Act 1997
apply to any proceedings that commence on
or after the commencement of that section of
that Act, irrespective of when the offence to
15 which the proceedings relate is alleged to
have been committed.
(4) For the purposes of sub-section (3)--
(a) a trial commences on arraignment of
the accused in accordance with
20 Subdivision (12) of Division 1 of Part
III; and
(b) a committal proceeding commences on
the committal mention date; and
(c) a hearing of a charge for an offence
25 commences on the taking of a formal
plea from the accused.
(5) The first report submitted to the Attorney-
General in accordance with section 464ZFE
must relate to the period beginning with the
30 day on which section 26 of the Crimes
(Amendment) Act 1997 comes into
operation.
(6) The amendments of section 464ZG(3)(a) and
(4)(a) made by section 27(2)(b) and (3)(b) of
35 the Crimes (Amendment) Act 1997 apply
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only to samples taken in forensic procedures
conducted on or after the commencement of
section 27 of that Act and any related
material and information within the meaning
5 of Subdivision (30A) of Division 1 of Part
III in relation to such samples.
(7) The amendments of section 464ZG(8) and
(9) made by section 27(5) and (6) of the
Crimes (Amendment) Act 1997 apply only
10 to offences alleged to have been committed
after the commencement of section 27 of that
Act.
(8) For the purposes of sub-section (7), if an
offence is alleged to have been committed
15 between two dates and section 27 of the
Crimes (Amendment) Act 1997
commences on a date between those two
dates, the offence is alleged to have been
committed before the commencement of that
20 section.".
31. New Schedule 8 inserted
After Schedule 7 to the Principal Act insert--
"SCHEDULE 8
Section 464ZF
25 FORENSIC SAMPLE OFFENCES
A forensic sample offence is:
Offences against the person--Non-Sexual Offences
1. Murder.
2. An offence against, or for which the penalty or the
30 maximum or minimum penalty is fixed by, section 4
(conspiracy to murder) (as amended) of the Crimes Act
1958 repealed on 1 June 1984 by section 8(b) of the Crimes
(Conspiracy and Incitement) Act 1984.
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3. Manslaughter.
4. An offence against, or for which the penalty or the
maximum or minimum penalty is fixed by, any of the
following sections of the Crimes Act 1958:
5 (a) section 16 (causing serious injury intentionally);
(b) section 17 (causing serious injury recklessly);
(c) section 19A (intentionally causing a very serious
disease);
(d) section 63 (child stealing);
10 (e) section 63A (kidnapping).
5. An offence against, or for which the penalty or the
maximum or minimum penalty is fixed by, any of the
following provisions (as amended) of the Crimes Act 1958
repealed on 24 March 1986 by section 8(2) of the Crimes
15 (Amendment) Act 1985:
(a) section 17 (intentionally causing grievous bodily
harm or shooting, etc. with intention to do grievous
bodily harm or to resist or prevent arrest);
(b) section 19 (inflicting bodily injury);
20 (c) section 19A (inflicting grievous bodily harm);
(d) section 20 (attempting to choke, etc. in order to
commit an indictable offence).
6. The common law offence of kidnapping.
Offences against the person--Sexual Offences
25 7. An offence against, or for which the penalty or the
maximum or minimum penalty is fixed by, any of the
following sections of the Crimes Act 1958:
(a) section 38 (rape);
(b) section 39 (indecent assault) if--
30 (i) immediately before or during or immediately
after the commission of the offence and at, or in
the vicinity of, the place where the offence was
committed, the offender inflicted serious
personal violence on the victim or did an act
35 which was likely seriously and substantially to
degrade or humiliate the victim, whether or not
the serious personal violence or that act
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constituted or formed part of the indecent
assault; or
(ii) the offender was aided or abetted by another
person who was present; or
5 (iii) the victim was under 16 years of age at the time
of the commission of the offence;
(c) section 40 (assault with intent to rape);
(d) section 44(1), (2) or (4) (incest) but not section 44(4)
if both people are aged 18 or older and each
10 consented (as defined in section 36 of the Crimes Act
1958) to engage in the sexual act;
(e) section 45(1) (sexual penetration of child under the
age of 10);
(f) section 46(1) (sexual penetration of child aged
15 between 10 and 16);
(g) section 47(1) (indecent act with child under the age of
16);
(h) section 47A(1) (sexual relationship with child under
the age of 16);
20 (i) section 49A(1) (facilitating sexual offences against
children);
(j) section 51 (sexual offences against people with
impaired mental functioning);
(k) section 52 (sexual offences against residents of
25 residential facilities);
(l) section 53 (administration of drugs, etc.);
(m) section 55 (abduction or detention);
(n) section 56 (abduction of child under the age of 16);
(o) section 57 (procuring sexual penetration by threats or
30 fraud);
(p) section 58 (procuring sexual penetration of child
under the age of 16);
(q) section 76 (burglary) in circumstances where the
offender entered the building or part of the building
35 as a trespasser with intent to commit a sexual or
indecent assault;
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(r) section 77 (aggravated burglary) in circumstances
where the offender entered the building or part of the
building as a trespasser with intent to commit a sexual
or indecent assault.
5 8. An offence against, or for which the penalty or the
maximum or minimum penalty is fixed by, any of the
following provisions (as amended) inserted in the Crimes
Act 1958 on 5 August 1991 by section 3 of the Crimes
(Sexual Offences) Act 1991 and repealed on 1 January
10 1992 by section 3 of the Crimes (Rape) Act 1991:
(a) section 40 (rape);
(b) section 41 (rape with aggravating circumstances);
(c) section 43 (indecent assault with aggravating
circumstances).
15 9. An offence against, or for which the penalty or the
maximum or minimum penalty is fixed by, any of the
following provisions (as amended) inserted in the Crimes
Act 1958 on 1 March 1981 by section 5 of the Crimes
(Sexual Offences) Act 1980 and repealed on 5 August 1991
20 by section 3 of the Crimes (Sexual Offences) Act 1991:
(a) section 44(1) (indecent assault);
(b) section 44(2) (indecent assault with aggravating
circumstances);
(c) section 45(1) (rape);
25 (d) section 45(2) (attempted rape);
(e) section 45(2) (assault with intent to commit rape);
(f) section 45(3) (rape with aggravating circumstances);
(g) section 45(4) (attempted rape with aggravating
circumstances);
30 (h) section 45(4) (assault with intent to commit rape with
aggravating circumstances);
(i) section 47(1) (sexual penetration of child under the
age of 10);
(j) section 47(2) (attempted sexual penetration of child
35 under the age of 10);
(k) section 47(2) (assault with intent to take part in act of
sexual penetration with child under the age of 10);
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(l) section 48(1) (sexual penetration of child aged
between 10 and 16);
(m) section 48(2) (attempted sexual penetration of child
aged between 10 and 16);
5 (n) section 48(2) (assault with intent to take part in act of
sexual penetration with child aged between 10 and
16);
(o) section 50(1) (gross indecency with child under the
age of 16);
10 (p) section 51 (sexual penetration of mentally ill or
intellectually defective person);
(q) section 51 (attempted sexual penetration of mentally
ill or intellectually defective person);
(r) section 51 (assault with intent to take part in act of
15 sexual penetration with mentally ill or intellectually
defective person);
(s) section 52 (incest) but not section 52(4) or (5) if both
people are aged 18 or older and each consented to
taking part in the act of sexual penetration;
20 (t) section 54 (procuring persons by threats or fraud);
(u) section 55 (administration of drugs, etc.);
(v) section 56 (abduction and detention);
(w) section 61 (unlawful detention for purposes of sexual
penetration).
25 10. An offence against, or for which the penalty or the
maximum or minimum penalty is fixed by, any of the
following provisions (as amended) of the Crimes Act 1958
repealed on 1 March 1981 by section 5 of the Crimes
(Sexual Offences) Act 1980:
30 (a) section 44(1) (rape);
(b) section 44(2) (rape with mitigating circumstances);
(c) section 45 (attempted rape);
(d) section 45 (assault with intent to rape);
(e) section 46 (unlawfully and carnally knowing and
35 abusing a girl under the age of 10);
(f) section 47 (attempting to unlawfully and carnally
know and abuse girl under the age of 10);
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(g) section 47 (assault with intent to unlawfully and
carnally know and abuse girl under the age of 10);
(h) section 48(1) (unlawfully and carnally knowing and
abusing girl aged between 10 and 16);
5 (i) section 48(2) (attempting to unlawfully and carnally
know and abuse girl aged between 10 and 16);
(j) section 48(2) (assault with intent to unlawfully and
carnally know and abuse girl aged between 10 and
16);
10 (k) section 52 (incest) but not section 52(3) or (4) if the
woman or girl is the sister of the offender and both
are aged 18 or older and the carnal knowledge or
attempt or assault with intent to have unlawful carnal
knowledge was or was made with the consent of the
15 sister;
(l) section 54 (carnal knowledge of female mentally ill or
intellectually defective person);
(m) section 54 (attempted carnal knowledge of female
mentally ill or intellectually defective person);
20 (n) section 54 (assault with intent to carnally know
female mentally ill or intellectually defective person);
(o) section 55(1) (indecent assault);
(p) section 55(3) (felonious indecent assault);
(q) section 57(1) or (2) (procuring defilement of woman
25 by threats or fraud or administering drugs);
(r) section 59 (abduction of girl under eighteen with
intent to have carnal knowledge);
(s) section 60 (unlawful detention with intent to have
carnal knowledge);
30 (t) section 62 (forcible abduction of woman);
(u) section 68(1) (buggery);
(v) section 68(3A) or (3B) (indecent assault on male
person);
(w) section 69(1) (act of gross indecency with girl under
35 the age of 16).
11. An offence against, or for which the penalty or the
maximum or minimum penalty is fixed by, section 61
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(abduction of woman from motives of lucre) of the Crimes
Act 1958 repealed on 1 March 1980 by section 5 of the
Crimes (Sexual Offences) Act 1980.
12. Any of the following common law offences:
5 (a) rape;
(b) attempted rape;
(c) assault with intent to rape.
Property Offences
13. An offence against, or for which the penalty or the
10 maximum or minimum penalty is fixed by, any of the
following sections of the Crimes Act 1958:
(a) section 75 (robbery);
(b) section 75A (armed robbery);
(c) section 76 (burglary);
15 (d) section 77 (aggravated burglary).
14. An offence against, or for which the penalty or the
maximum or minimum penalty is fixed by, any of the
following provisions of the Crimes Act 1958 repealed on
1 October 1974 by section 2(1)(b) of the Crimes (Theft)
20 Act 1973:
(a) section 117 (robbery; larceny from the person);
(b) section 118 (assault with intent to rob);
(c) section 119 (robbery with wounding);
(d) section 120 (robbery under arms or company);
25 (e) section 128 (burglary by breaking out);
(f) section 130 (burglary with wounding);
(g) section 132 (entering house at night with intent to
commit a felony);
(h) section 133 (breaking into etc., building within
30 curtilage);
(i) section 134 (house-breaking);
(j) section 135 (house-breaking etc., with intent etc.);
(k) section 138 (larceny in the house);
(l) section 139 (larceny with menaces).
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15. The common law offence of robbery abolished on 1 October
1974 by section 3(1) of the Crimes (Theft) Act 1973.
16. The common law offence of burglary abolished on
1 October 1974 by section 3(1) of the Crimes (Theft) Act
5 1973.
17. An offence against, or for which the penalty or the
maximum or minimum penalty is fixed by, any of the
following sections of the Crimes Act 1958:
(a) section 197 (destroying or damaging property) in
10 circumstances where the offence is charged as arson;
(b) section 197A (arson causing death).
18. An offence against, or for which the penalty or the
maximum or minimum penalty is fixed by, any of the
following provisions of the Crimes Act 1958 repealed on
15 1 July 1979 by section 2(1)(c) of the Crimes (Criminal
Damage) Act 1978:
(a) section 196 (setting fire to church etc.);
(b) section 197 (setting fire to house anyone being in it);
(c) section 199 (setting fire to railway buildings etc.);
20 (d) section 200 (setting fire to public buildings);
(e) section 201 (setting fire to other buildings);
(f) section 202 (setting fire to goods in buildings);
(g) section 203 (attempting to set fire to buildings).
19. An offence against section 203A (placing inflammable
25 substance with intent to destroy, damage, etc.) (as amended)
of the Crimes Act 1958 repealed on 1 July 1979 by section
2(1)(c) of the Crimes (Criminal Damage) Act 1978.
20. The common law offence of arson.
21. An offence against section 248 (contamination of goods) of
30 the Crimes Act 1958.
Drug Offences
22. An offence against section 71 (trafficking in a drug of
dependence) of the Drugs, Poisons and Controlled
Substances Act 1981.
35 23. An offence against section 72(1)(ab) (cultivation of a
narcotic plant in circumstances where the offence is
committed in relation to a quantity of a drug of dependence,
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being a narcotic plant, that is not less than the commercial
quantity applicable to that narcotic plant) of the Drugs,
Poisons and Controlled Substances Act 1981.
24. An offence against section 72(1)(b) (cultivation of a
5 narcotic plant for a purpose related to trafficking in that
narcotic plant) of the Drugs, Poisons and Controlled
Substances Act 1981.".
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Notes
Act No.
NOTES
By Authority. Government Printer for the State of Victoria.
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