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Crimes (Sexual Offences) (Further Amendment)
Bill
As Sent Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purpose of the proposed Act, which is to amend--
· the Crimes Act 1958 to further provide for the use of
jury warnings in sexual offence cases were there has
been a delay in reporting the alleged offence;
· the Evidence Act 1958 to further provide for alternative
arrangements for the giving of evidence in proceedings
that relate to a charge for a sexual offence;
· the Magistrates' Court Act 1989 to provide for a
Sexual Offences List in the Magistrates' Court; and
· the Crimes (Sexual Offences) Act 2006 to provide for
transitional arrangements relating to the Act.
Clause 2 provides that Part 1 comes into operation on the day after Royal
Assent. Part 3 comes into operation immediately after the
coming into operation of section 38 of the Crimes (Sexual
Offences) Act 2006. The remaining clauses come into operation
on a day or days to be proclaimed or on 1 December 2006 if any
of the remaining clauses are not proclaimed before that date.
PART 2--AMENDMENT OF CRIMES ACT 1958
Clause 3 substitutes (and expands) section 61(1)(b) of the Crimes Act
1958. Sections 61(1)(a) and (b) already provide that a judge
must not warn or suggest to a jury that the law regards
complainants in sexual offence cases as an unreliable class of
witness and that if evidence is given or a question is asked of a
witness or a statement is made in the course of an address on
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551436 BILL LA AS SENT 18/9/2006
evidence which tends to suggest that there was a delay in making
a complaint about the alleged offence by the person against
whom the offence is alleged to have been committed, the judge
must inform the jury that there may be good reasons why a
victim of a sexual assault may delay or hesitate in complaining
about it.
These provisions were intended to reflect the reality that many
sexual offence victims delay reporting the offence.
The High Court in Crofts v R (1996) 186 CLR 427 has said that
sections 61(1)(a) and (b) do not prevent a trial judge from
commenting that a delay in reporting a sexual assault could affect
the credibility of the complainant. The insertion of section
61(1)(b)(ii) will provide stricter parameters around the use of
such a warning by providing that a judge must not warn, or
suggest in any way to, the jury that the credibility of the
complainant is affected by a delay in reporting a sexual assault
unless, on the application of the accused, the judge is satisfied
that there exists sufficient evidence in the particular case to
justify such a warning.
Clause 3 also clarifies the circumstances in which a warning may
be given by the judge to the jury about the effect that delay in
reporting has on the ability of the accused to put forward a
defence. The new sub-sections provide that a warning relating to
forensic disadvantage caused by delay may not to be given
unless--
· an application is made by the accused; and
· the judge is satisfied that the accused has in fact
suffered significant forensic disadvantage due to the
consequences of the delay in reporting.
The mere passage of time will not necessarily establish a
significant forensic disadvantage and the judge may refuse to
give the warning if there are good reasons for doing so.
The clause specifies that no particular form of words need to be
used when giving the warning but that the judge must not suggest
that it would be "dangerous or unsafe to convict" the accused
because of any demonstrated forensic disadvantage.
New section 61(1E) provides that a judge must not give a
warning referred to in sub-section (1A) or a warning to the effect
of a warning referred to in sub-section (1A) except in accordance
with section 61 and that any rule of law to the contrary is
abrogated. Section 61(1E) is intended to abrogate use of the
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common law "Longman warning" (R v Longman (1989) 168
CLR 79).
Nothing in these new provisions affects the power of a judge to
give any other warning to, or to otherwise inform, the jury.
Clause 4 provides that the amendments made by clause 3 to the Crimes
Act 1958 apply to any proceeding that commences on or after the
commencement of this Bill, irrespective of when the offence is
alleged to have been committed.
PART 3--AMENDMENT OF EVIDENCE ACT 1958
Clause 5 substitutes section 37C(1) of the Evidence Act 1958 to provide
that section 37C no longer applies to a witness who is a
complainant in relation to a charge for a sexual offence.
Provisions for alternative arrangements for non-complainant
witnesses in a sexual offence trial will remain in section 37C of
the Evidence Act 1958.
Clause 6 inserts a new section 37CAA into the Evidence Act 1958 to
specifically provide for alternative arrangements for giving
evidence by a complainant in a legal proceeding that relates
(wholly or partly) to a charge for a sexual offence. This new
section does not apply to child complainants or complainants
with a cognitive impairment.
New section 37CAA(1) provides that in a legal proceeding that
relates (wholly or partly) to a charge for a sexual offence the
court must direct that any of the following arrangements be made
for the giving of evidence by the complainant--
· permitting the evidence to be given from a place other
than the courtroom by means of closed-circuit television
or other facilities that enable communication between
that place and the courtroom;
· using screens to remove the defendant from the witness'
direct line of vision;
· permitting a person chosen by the witness and approved
by the court for this purpose, to be beside the witness
while he or she is giving evidence for the purpose of
providing emotional support to him or her.
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The clause provides that the court must routinely make a
direction for permitting evidence to be given by CCTV or other
facilities that enable communication between a place other than
the courtroom and the courtroom unless it is satisfied that the
complainant is aware of his or her right to give evidence in this
manner and is able and wishes to give evidence in the courtroom.
This clause also provides that the court cannot determine to direct
that the evidence be given in court unless the prosecution has
made an application for this to happen.
The clause provides that the court must direct that any evidence
given by a complainant by way of closed-circuit television or any
other facilities under sub-clause (1)(a) is recorded and if such an
alternative arrangement for the giving of evidence is made, the
court may make any order it considers appropriate to enable the
complainant to view any place or thing or identify any person or
thing.
If the complainant is giving evidence in the courtroom, the court
must direct that a screen be used to remove the defendant from
the complainant's direct line of vision unless it is satisfied that the
complainant is aware of his or her right to use a screen and does
not wish a screen to be used.
Whether a complainant gives evidence from outside the
courtroom or from within the courtroom, the court must permit a
person to be beside the complainant while the complainant is
giving evidence unless it is satisfied that the complainant is
aware of this right and does not want a person to be beside him or
her while he or she is giving evidence.
If a court directs that alternative arrangements be made for the
giving of evidence by a witness, the judge must warn the jury not
to draw any inference adverse to the defendant or give the
evidence any greater or lesser weight because of the making of
those arrangements.
Any place outside the courtroom where a witness is permitted to
give evidence under this clause is to be taken to be part of the
courtroom while the witness is there for the purpose of giving
evidence.
The court may at any time in the course of the proceeding vary or
revoke a direction made under this clause either of its own
motion or on the application of a party to the proceeding.
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Clause 7 substitutes the heading to section 41E of the Evidence Act 1958
with "Alternative arrangements for giving evidence in certain
proceedings by child complainants or complainants with a
cognitive impairment". The clause also omits the word
"alternative" from sections 41E(1) and (2) of the Evidence Act
1958 in order to make that section consistent with new section
37CAA of the Evidence Act 1958.
Clause 8 inserts a new section 159 into the Evidence Act 1958 to provide
that the amendments made to the Evidence Act 1958 by this Bill
apply to any proceeding that commences on or after the
commencement of clauses 5, 6 and 7, irrespective of when the
offence to which the proceeding relates is alleged to have been
committed.
PART 4--AMENDMENT TO THE MAGISTRATES' COURT
ACT 1989
Clause 9 inserts new section 4R into the Magistrates' Court Act 1989 to
provide statutory recognition of the establishment of a Sexual
Offences List in the Magistrates' Court. The Sexual Offences
List consists of any proceeding that relates (wholly or partly) to a
charge for a sexual offence and the operation and the
administration of the Sexual Offences List is at the discretion
of the Chief Magistrate. The Chief Magistrate may, under
section 16A, issue practice directions, statements, or notes for the
Court in relation to the Sexual Offences List. New section 4R
does not take away from, or limit, a discretion or power already
conferred on the Chief Magistrate by or under the Magistrates'
Court Act 1989.
PART 5--AMENDMENTS TO THE CRIMES (SEXUAL
OFFENCES) ACT 2006
Clause 10 inserts new sections 19A and 19B into the Crimes (Sexual
Offences) Act 2006.
Section 19A inserts section 606A, a transitional provision, into
the Crimes Act 1958 to provide that:
· Sections 4 and 5 of the Crimes (Sexual Offence) Act
2006 will only apply to trials that commence on after
the commencement of the Act, irrespective of when the
offence to which the trial relates is alleged to have been
committed. Therefore, even if the offence being tried
was committed prior to the commencement of the Act,
the changes made by sections 4 and 5 will still apply so
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long as the proceeding does not commence before the
commencement of the Act.
· Sections 6, 8, 9, 10, 11, 12, 17(4) and 17(5) of the
Crimes (Sexual Offence) Act 2006 will only apply to
offences alleged to have been committed on or after the
commencement of the Act and will not have
retrospective application.
· For the purposes of sub-section (1), a trial commences
on arraignment of the accused.
· For the purposes of sub-section (2), if an offence is
alleged to have been committed between two dates, one
before and one after the commencement of the Act, the
offence will be alleged to have been committed before
the commencement of the Act.
Section 19B inserts a new clause into Schedule 8 to the Crimes
Act 1958 which lists offences that constitute forensic sample
offences for the purposes of that Act. The new clause ensures
that if an offence was a forensic sample offence at the time it was
committed it will continue to be a forensic sample offence after
the commencement of the Act even if the offence is changed or is
no longer specifically listed in the Schedule.
Clause 11 inserts section 23A into the Crimes (Sexual Offences) Act 2006
which inserts section 33A, a transitional provision, into the
Crimes (Criminal Trials) Act 1999 to provide that:
· Sections 21(1) and 21(2) of the Crimes (Sexual
Offences) Act 2006 only apply to offences alleged to
have been committed on or after the commencement of
that Act.
· Sections 21(3) and 22 of the Crimes (Sexual Offences)
Act 2006 apply to any trial that commences on or after
the commencement of that Act, irrespective of when the
offence to which the trial relates is alleged to have been
committed. Therefore, even if the offence being tried
was alleged to have been committed prior to the
commencement of the Act, the changes made by
sections 21(3) and 22 will still apply so long as the
proceeding does not commence before the
commencement of the Act.
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· For the purposes of sub-section (1), if an offence is
alleged to have been committed between two dates, one
before and one after the commencement of the Act, the
offence is alleged to have been committed before the
commencement of the Act.
· For the purposes of sub-section (2), a trial commences
on arraignment of the accused.
Clause 12 inserts section 38A into the Crimes (Sexual Offences) Act 2006
which inserts section 158A, a transitional provision, into the
Evidence Act 1958 to provide that:
· Any amendments made to the Evidence Act by sections
25, 29, 30, 33 or 37 of the Crimes (Sexual Offences)
Act 2006 apply to--
· any legal proceeding commenced before the
commencement of that provision if at the
commencement of that provision the hearing of
the proceeding had not commenced, or if the
hearing had commenced but no evidence had
been given; and
· any legal proceeding that commences on or after
the commencement of that provision.
· An amendment made to the Evidence Act 1958 by
sections 27, 34, or 38 of the Crimes (Sexual Offences)
Act 2006 applies to any legal proceeding that
commences on or after the commencement of that
provision.
Clause 13 inserts section 41A into the Crimes (Sexual Offences) Act 2006.
This will insert clause 35A into Schedule 8 to the Magistrates'
Court Act 1989 to provide that an amendment to this Act by
sections 40 or 41 of the Crimes (Sexual Offences) Act 2006 will
only apply to a criminal proceeding that commences on or after
the commencement of that provision.
Clause 14 substitutes section 43(1) of the Crimes (Sexual Offences) Act
2006 to amend section 3(1) of the Sentencing Act 1991 to update
the definition of "serious offence" so that it includes the offence
under section 47A of the Crimes Act 1958 (currently "sexual
relationship" with a child under the age of 16) as amended by the
Crimes (Sexual Offences) Act 2006 (to "persistent sexual
abuse" of a child under the age of 16).
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This clause also inserts a new paragraph (da) to the definition of
"serious offence" so that "serious offence" includes offences that
were listed under this definition at the time that they were
committed, even if the offence has changed or is no longer
specifically listed under section 3(1). For example, if an offence
of "sexual relationship with a child under 16" is committed prior
to the commencement of the Crimes (Sexual Offences) Act
2006, the offence will still be included in the definition of
"serious offence" pursuant to paragraph (da).
This clause will also amend paragraph (f) to ensure that the
substance of paragraph (f) also applies to each of the paragraphs
in the definition.
Clause 15 amends section 44 of the Crimes (Sexual Offences) Act 2006 to
insert item 39A into the Schedule to the Serious Sex Offenders
Monitoring Act 2005 to provide that the Schedule to that Act
includes an offence that, at the time it was committed, was an
offence listed in the Schedule. This will ensure that offences that
are committed prior to the commencement of the Crimes (Sexual
Offences) Act 2006 will still be included in the Schedule if they
were included in the Schedule prior to the commencement of that
Act.
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