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Criminal Justice Legislation (Miscellaneous
Amendments) Bill
Circulation Print
EXPLANATORY MEMORANDUM
General
This Bill embodies the major legislative reforms of the Criminal Justice
Enhancement Program ("CJEP"). CJEP was formed in 1999 to implement
key recommendations arising from Project Pathfinder. The key changes to
the criminal justice system sought by CJEP are improved access to justice,
improved care for the accused, and improved efficiency and quality of
processes. This Bill amends a number of different Acts in order to provide
for these improvements: Crimes Act 1958, Corrections Act 1986, Police
Regulation Act 1958, and Magistrates' Court Act 1989.
The particular reforms introduced in this Bill concern--
· improving disclosure of the prosecution case through
progressive electronic disclosure to defence lawyers;
· improving care of accused persons through use of fingerscans
(electronic fingerprints) for faster and more reliable
identification of persons in custody and through sharing of key
information (e.g. that the person is a suicide risk) between
agencies responsible for the safety of persons in custody;
· improving court and police processes by enabling charges to be
filed with a court electronically and by expanding police
capacity to issue a summons;
· providing a legislative framework for diversion programs; and
· improving the efficiency of proceedings for a summary offence
where the defendant fails to appear at court, by allowing
magistrates to determine a matter in the defendant's absence on
the basis of an outline of evidence. Safeguards include penalty
caps and re-hearing rights.
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541246 BILL LA CIRCULATION 9/5/2002
Other amendments have been included in this Bill which are not part of the
CJEP agenda. These further provisions--
· re-define bail justice to include persons who are bail justices by
virtue of holding a prescribed office and validate certain acts
and decisions;
· make technical corrections relating to amendments made by the
Drugs, Poisons and Controlled Substances (Amendment)
Act 2001, so as to bring certain drug offences back within the
scope of such regimes as confiscation of proceeds of crime and
collection of forensic samples;
· allow magistrates in committal proceedings to order bodies
corporate committed for trial to attend trial;
· remove the requirement that a court be satisfied that a party has
incurred additional costs as a consequence of an adjournment,
before granting an indemnity certificate, and clarify that
deemed adjournment include appeals.
Clause Notes
Clause 1 sets out the purposes of this Bill.
Clause 2 provides that the Bill (apart from item 5.1 in the Schedule) will
commence on the day after it receives the Royal Assent. Item 5.1
is deemed to have commenced on the day which section 5 of the
Sentencing (Amendment) Act 2002 commenced.
Clause 3 inserts a new section 464NA in the Crimes Act 1958 which will
allow police to take a fingerscan of a person who is in police
custody and has been charged with an indictable offence or a
summary offence for which a person may be fingerprinted.
A fingerscan is a digital record of a fingerprint, and may be
recorded on a computerised database. Fingerscans are not
admissible as evidence. The new section only allows fingerscans
to be taken for the purposes of identifying defendants once they
have been charged, so as to assist in the identification and
management of persons in custody. Reasonable force may be
used in certain circumstances to take a fingerscan.
Clause 4 provides for the destruction of fingerscans, by permanently de-
identifying information from which the person's identity may be
ascertained. When police are required to destroy fingerscans (for
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example, when the defendant is acquitted), they will be able to do
so by electronic means which will make it impossible to identify
the person.
Clause 5 provides for the destruction of fingerscans taken from children
who do not re-offend.
Clause 6 repeals some sections of the Crimes (Fingerprinting) Act 1988
which are now redundant.
Clause 7 amends the Corrections Act 1986 to allow corrections staff to
take fingerscans of persons in custody and to modify
requirements to photograph prisoners and other offenders.
Clause 8 amends the Corrections Act 1986 to allow corrections staff to
record, access, disclose, communicate or make use of personal
information about persons in custody that is on a computerised
database. They will only be able to do so if the Minister of
Corrections gives written authorisation. That authorisation may
refer generally to classes of staff or classes of information.
The authorisation may allow corrections staff to disclose
information by placing it on a database to which police have
access. The authorisation may also allow corrections staff to
access information from a police database. This provision, in
combination with the provisions in Clause 11, will allow for the
exchange of personal information about persons in custody
between corrections staff and police. This will assist both police
and corrections staff to fulfil their duty of care toward persons in
custody by making relevant information more readily accessible.
Clause 9 provides that persons who are undertaking some form of work, or
are taking part in a program of activities, as part of a diversion
program will be deemed to be a worker employed by the Crown
for the purposes of the Accident Compensation Act 1985.
(Clause 17 provides for diversion programs.)
Clause 10 inserts new section 115 in the Corrections Act 1986 which
provides that the new provisions relating to fingerprints apply
only to fingerprints taken after the commencement of those
provisions, while the new provisions relating to the use of
personal information apply to information obtained both before
and after the commencement of those provisions.
Clause 11 amends the Police Regulation Act 1958 to allow members of the
police force to record, access, disclose, communicate or make use
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of information which comes to their knowledge by virtue of their
office and is on a computerised database. They will only be able
to do so if the Chief Commissioner of Police gives written
authorisation. The authorisation may allow police to disclose
information by placing it on a database to which corrections staff
have access. The authorisation may also allow police to access
information from a corrections database. This provision, in
combination with the provisions in Clause 8, will allow for the
exchange of personal information about persons in custody
between corrections staff and police. This will assist both police
and corrections staff to fulfil their duty of care toward persons in
custody by making relevant information more readily accessible.
Clause 12 inserts a note into section 26 of the Magistrates' Court Act 1989
to make clear that the Electronic Transactions (Victoria) Act
2000 applies to allow a criminal charge to be filed at the
Magistrates' Court electronically. The clause also provides that
the requirements of the Electronic Transactions (Victoria) Act
2000 regarding giving information in writing and requirements of
signatures will have been met by a charge that is filed in
accordance with a method prescribed by the regulations.
This will enable parties to criminal cases to be confident that
criminal cases have been properly commenced by charges that
were filed electronically in accordance with the regulations.
Clause 13 provides that members of the police force may issue a summons
to answer to a charge when signing a charge-sheet. Also, persons
who are prescribed by the regulations may issue a summons for
certain offences prescribed by the regulations.
Clause 14 provides that an informant may serve on a defendant charged
with a summary offence an outline of the evidence against the
defendant. An outline of evidence is a statement by the
informant describing the alleged offence, its background and
consequences, and includes the names of potential witnesses.
An outline of evidence must be signed by the informant and kept
for 12 months after the determination of the charge. Informants
who sign an outline of evidence which they know to be false will
be liable to the penalties of perjury. Copies of an outline of
evidence that are served on a defendant or used in court in the
procedure provided for in clause 21 need not bear the manual
signature of the informant. This will facilitate the use of
electronic prosecution briefs.
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An outline of evidence must be served on a defendant in the
same manner as a summons is served. An outline of evidence
when served on a defendant must be accompanied by a notice
explaining this provision and the procedure that can be followed
if the defendant does not appear at court. (See clause 21 for that
procedure.) Where the defendant has been charged with a traffic
or parking infringement, a copy of their prior convictions for
those sorts of offences may be served with the outline of
evidence.
Clause 15 provides that a magistrate has the power to adjourn proceedings
on any terms he or she thinks fit where a defendant who has been
charged with a summary offence and has been granted bail, fails
to attend court in answer to bail.
Clause 16 validates certain acts by people who were bail justices by virtue
of occupying a prescribed office (as provided for by section 121
of the Magistrates' Court Act 1989). Such prescribed office
holders include court staff such as Magistrates' Court registrars.
Clause 25 below amends the definition of "bail justice" in the
Bail Act 1977 and other Acts, so that prescribed office bail
justices may exercise bail justice powers under those Acts.
Clause 16 validates certain acts of prescribed office bail justices
in purported exercise of bail justice powers which they did not in
fact possess.
Clause 17 inserts new section 128A in the Magistrates' Court Act 1989.
Section 128A provides for a procedure whereby a magistrate can,
if he or she thinks it appropriate, adjourn a criminal proceeding to
enable the defendant to participate in a diversion program. If the
defendant completes a diversion program (which can include
apology to the victim, payment of compensation, attending
counselling, or doing community work, etc.) to the satisfaction of
the court, then the defendant will be discharged without
conviction or finding of guilt. If the defendant does not complete
the diversion program to the satisfaction of the Court, the matter
will be dealt with as a normal criminal proceeding.
Clause 17 provides that the defendant must first acknowledge
responsibility for the offence and that both the defendant and the
prosecution must consent to an adjournment for diversion
purposes. The defendant's acknowledgment is not a formal plea
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and cannot be used in evidence against the defendant in a
proceeding for that offence (e.g. where the defendant does not
complete the diversion and the matter reverts to a usual criminal
proceeding). Successful completion of a diversion program and
subsequent discharge is a defence to a later charge for the same
offence arising out of the same facts. Existing provisions
relating to the confiscation of proceeds of crime, forfeiture of
weapons, and the making of compensation and restitution orders
are preserved.
Clause 18 amends section 139A of the Magistrates' Court Act 1989 to
provide that section 121A (the validation of acts by prescribed
office bail justices provided for by clause 16) is intended to alter
or vary section 85 of the Constitution Act 1975.
Clause 19 amends the regulation-making power in the Magistrates' Court
Act 1989 to enable regulations to be made prescribing a method
of electronic filing of charges. This facilitates the provisions of
clause 12 above.
Clause 20 amends Schedule 2 to the Magistrates' Court Act 1989 to
provide for a process of progressive electronic disclosure of the
prosecution brief to defence lawyers in summary proceedings.
The defence lawyer needs to be authorised by the Secretary of the
Department of Justice to access the information electronically.
If the information in the prosecution brief can be put in electronic
form, the informant must then place that information on a
database to be prescribed by regulations. The defence lawyer
will then, pursuant to his or her authorisation by the Secretary, be
able to access that information electronically. This disclosure
process is progressive in that the informant must place the
information on the database as it becomes available to him or her.
The exemptions, and the process for application to the Court in
cases of dispute, that already exist for non-electronic disclosure
are repeated for electronic progressive disclosure.
Clause 21 provides for an alternative procedure where a defendant to a
charge for a summary offence does not appear at court. If the
informant has, not less than 14 days before the first court date,
served an outline of evidence on the defendant (see Clause 14
above), then the Court has the discretion to proceed to hear and
determine the case on the basis of the outline of evidence.
The Court may require further evidence to be provided.
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The Court is limited in the range of sentences it may impose in
the defendant's absence in this sort of proceeding. It may not
make a custodial or community-based order, or order a fine of
more than $2000, or total fines of more than $5000, or make
compensation or restitution orders of more than $2000. If the
Court is of the view that an order beyond those limits is
appropriate, it must adjourn the proceeding to enable the
defendant to appear at court. Only prior convictions of the
defendant for offences under the Road Safety Act 1986 may be
given to the Court. The Court will notify the defendant of the
outcome if they are found guilty and sentenced. Existing rights
to re-hearing and appeal are preserved and defendants sentenced
under this proceeding will have an automatic right to re-hearing
within 28 days of service of the notice by the Court.
Clause 22 enables the Magistrates' Court, when it has decided to commit for
trial a defendant which is a body corporate, to order the body
corporate to appear at its arraignment.
Clause 23 makes it an offence for a body corporate that has been ordered to
appear at its arraignment to fail to appear.
Clause 24 inserts transitional provisions which provide that the amendments
made by this Bill relating to the Magistrates' Court Act 1989,
except those relating to diversion proceedings, will apply to
criminal proceedings commenced on or after the commencement
of this Bill. The amendments relating to diversion proceedings
will apply to criminal proceedings regardless of when they
commenced.
Clause 25 amends the definition of "bail justice" in the Bail Act 1977, the
Children and Young Persons Act 1989 and the Interpretation
of Legislation Act 1984. This will allow persons who are bail
justices by virtue of holding a prescribed office (see clause 16
above) to exercise all the powers of bail justices.
Clause 26 amends the Appeal Costs Act 1998 to ensure that the function of
deciding whether costs in appeals have been incurred belongs to
the Appeal Costs Board and not the Court. It also clarifies that
deemed adjournments extend to appeals.
Clause 27 inserts a transitional provision which provide that the
amendments made by clause 26 apply to applications made on or
after the commencement of those amendments, regardless of
when the criminal proceeding in question commenced.
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Clause 28 provides that an item in the Schedule amends the Act it refers to
when the item comes into operation.
Schedule provides for technical corrections to various Acts that were
amended by the Drugs, Poisons and Controlled Substances
(Amendment) Act 2001. That Act replaced certain drug
offences with new ones in the Drugs, Poisons and Controlled
Substances Act 1981. It also erroneously substituted references
to the old drug offences in various other Acts with references to
the new drug offences, when it was intended that the new
offences be in addition to the old offences. The Schedule re-
inserts references to the relevant offences in the necessary Acts.
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