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Crimes (Sexual Offences) Bill
Introduction Print
EXPLANATORY MEMORANDUM
General
The object of this Bill is to amend the Crimes Act 1958, the Crimes
(Criminal Trials) Act 1999, the Evidence Act 1958 and the Magistrates
Court Act 1989--
· to improve the experiences of complainants who are children
or persons with a cognitive impairment in the prosecution of
sexual offences; and
· to further provide for the protection of children and persons
with a cognitive impairment from sexual assault; and
· to improve the rules of evidence applicable in the prosecution
of sexual offences to provide a better balance of fairness
between the defendant and the complainant.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purpose of the Bill.
Clause 2 provides for the Bill to commence by proclamation or on
1 December 2006 if it is not proclaimed before that date.
PART 2--AMENDMENT OF THE CRIMES ACT 1958
Clause 3 inserts a definition of "domestic partner" into section 35 of the
Crimes Act 1958.
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551344 BILL LA INTRODUCTION 16/11/2005
Clause 4 amends section 37(1)(a) of the Crimes Act 1958 to make clear
that if relevant, a judge must direct a jury that where a person
does not do or say anything to indicate consent to a sexual act,
this is enough to show that they did not consent to the sexual act.
The provision makes clear that consent to one act at one time is
not consent to other acts at other times.
Clause 5 sets out objectives and guiding principles to assist in the
interpretation of Subdivisions (8A) to (8G) of Part I of the
Crimes Act 1958.
Clause 6 includes within the offence of rape, the act of compelling another
person, irrespective of their gender, to sexually penetrate the
offender or a third person, whether or not the person who is being
sexually penetrated consents to the act or to not to stop sexually
penetrating the offender or a third person, whether or not the
person who is being sexually penetrated consents to the act.
Clause 7 creates a new offence of compelling another person to sexually
penetrate himself or herself with an object or a part of his or her
body, other than in the course of a procedure conducted for a
genuine medical or hygienic purpose or to take part in an act
of bestiality as defined in section 59 of the Crimes Act 1958.
As with section 38 of the Crimes Act 1958, the offence is made
out if it occurs without the victim's consent and while the accused
is aware that the victim is not or might not be consenting.
Clause 8 amends section 44 of the Crimes Act 1958 to make clear that a
person who is compelled to take part in an of sexual penetration
constituting incest is not guilty of that offence.
Clause 9 makes clear that in the offence of sexual penetration of a child
under the age of 16 (under section 45 of the Crimes Act 1958),
if the defence of consent in section 45(4) is relevant because at
the time of the alleged offence the child was aged 10 or over, the
accused must satisfy the court on the balance of probabilities that
the accused believed on reasonable grounds that the child was
aged 16 or over or that the accused believed on reasonable
grounds that he or she was married to the child. The clause
makes clear that if relevant, the prosecution bears the onus of
proving lack of consent.
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Clause 10 makes clear that in the offence of an indecent act with a child
under the age of 16 years (under section 47 of the Crimes Act
1958), if the defence of consent in section 47(2) is relevant, the
accused must satisfy the court on the balance of probabilities that
the accused believed on reasonable grounds that the child was
aged 16 or over or that the accused believed on reasonable
grounds that he or she was married to the child. The clause
makes clear that if relevant, the prosecution bears the onus of
proving lack of consent.
Clause 11 changes the name of the offence "sexual relationship with a child
under the age of 16" to "persistent sexual abuse of a child under
the age of 16".
Clause 12 identifies the sorts of relationships that are captured in the
offence of sexual penetration of a 16 or 17 year old child in
section 48 of the Crimes Act 1958. These relationships are
non-exhaustive and have been specifically included because of
the degree of authority and control that such roles entail in
relation to young people.
The provision makes clear that where consent is relevant, the
prosecution bears the burden of proving lack of consent.
However, if the defence of consent is relevant, the accused must
prove on the balance of probabilities that he or she reasonably
believed that the child was aged 18 or over.
Clause 13 identifies the sorts of relationships that are captured in the
offence of an indecent act with or in the presence of a 16 or
17 year old child in section 49 of the Crimes Act 1958.
These relationships are non-exhaustive and have been
specifically included because of the degree of authority and
control that such roles entail in relation to young people.
The provision makes clear that where consent is relevant, the
prosecution bears the burden of proving lack of consent.
However, if the defence of consent is relevant, the accused must
prove on the balance of probabilities that he or she reasonably
believed that the child was aged 18 or over.
Clause 14 amends the heading to Subdivision (8D) of the Crimes Act 1958
to refer to "persons with a cognitive impairment".
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Clause 15 repeals the definitions of "impaired" and "resident' in section 50
of the Crimes Act 1958 and inserts definitions of--
· cognitive impairment--to include mental illness,
intellectual disability, dementia and brain injury;
· facility--to mean a service that provides programs
specially designed to meet the developmental or
educational needs of persons with a cognitive
impairment irrespective of whether it is a residential
facility;
· worker--to mean a person at a facility who delivers or
assists in delivering any program specially designed to
meet the developmental or educational needs of persons
with a cognitive impairment attending or residing at the
facility.
Clause 16 creates a broader offence under section 51 of the Crimes Act
1958 that captures sexual acts between a person who is a provider
of medical or therapeutic services and a person with a cognitive
impairment irrespective of whether those services are related to
the person's cognitive impairment.
The new provision creates a separate defence that may apply to a
situation where the service provided was not related to the
person's cognitive impairment and the accused proves on the
balance of probabilities that he or she was not aware that the
person had a cognitive impairment. This is less onerous than the
defence that may be available where the service is provided in
connection with the person's cognitive impairment, wherein the
accused must prove on the balance of probabilities that he or she
believed on reasonable grounds that the person did not have a
cognitive impairment.
The defence of reasonable belief that the accused and the person
with a cognitive impairment were married or were domestic
partners continues to be available. The provision makes clear
that where consent is relevant, the prosecution bears the burden
of proving lack of consent.
Clause 17 creates a broader offence under section 52 of the Crimes Act
1958 to encompass sexual conduct on the part of employees,
volunteers and others involved in the delivery of programs at
both residential and non-residential facilities that are designed to
meet the developmental and educational needs of people with a
cognitive impairment.
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The defence of reasonable belief that the accused and the person
with a cognitive impairment were married or were domestic
partners continues to be available. The provision makes clear
that where consent is relevant, the prosecution bears the burden
of proving lack of consent.
Clause 18 creates an expanded offence of soliciting or procuring a child
aged under 16 years to take part in an act of sexual penetration or
an indecent act, or where the accused is in a relationship of care,
supervision or authority with the victim, the sexual offence of
soliciting or procuring a child aged under 18 years to take part in
an act of sexual penetration or an indecent act.
The provision continues to make it an offence to procure another
person to take part in an act of sexual penetration or an indecent
with a child under 16 years or a child under 18 years as the case
may be. The provision makes it an offence to do any act outside
of Victoria that would be an offence under section 58 if done in
Victoria, where a significant part of the conduct relating to the
offence occurred in Victoria or where the intention of the accused
was for the act to occur in Victoria even though it occurred
wholly outside of Victoria.
The provision identifies the sorts of relationships that are
captured in the offence of soliciting or procuring a child
under 18. These relationships are non-exhaustive and have been
specifically included because of the degree of authority and
control that such roles entail in relation to young people.
Clause 19 repeals section 60 of the Crimes Act 1958.
PART 3--AMENDMENT OF THE CRIMES (CRIMINAL
TRIALS) ACT 1999
Clause 20 inserts a definition of "cognitive impairment" into section 3 of
the Crimes (Criminal Trials) Act 1999.
Clause 21 creates a shorter time-limit of 7 days from the date the defendant
is committed to stand trial for the filing of a presentment with the
court where a sexual offence is to be tried. The provision allows
the amendment of the presentment if the special video recording
procedure provided for in new section 41G of the Evidence Act
1958 is utilised and the video recording is admitted as evidence
and if the amendment is made in accordance with an order made
by the court pursuant to section 372 of the Crimes Act 1958.
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Clause 22 amends section 5(4) of the Crimes (Criminal Trials) Act 1999
to provide that in the case of a trial for a sexual offence in which
the complainant is a child or a person with a cognitive
impairment, the court may, at a directions hearing, require the
prosecution to advise as to the availability of the complainant,
and the accused to advise as to his or her availability, for the
special hearing to be held under section 41G of the Evidence
Act 1958. This amendment supports the insertion of new
Division 3AA into Part II of the Evidence Act 1958.
Clause 23 makes a consequential amendment to section 20 of the Crimes
(Criminal Trials) Act 1999.
PART 4--AMENDMENT OF EVIDENCE ACT 1958
Clause 24 inserts definitions of "child" and "cognitive impairment" into
section 3(1) of the Evidence Act 1958 and repeals the definition
of "impaired".
Clause 25 amends section 23 of the Evidence Act 1958 to create a more
structured approach to assessing the competency of a witness
who is a child or a person with a cognitive impairment. Sub-
clause (1) creates a presumption that children and persons with
a cognitive impairment are competent to give evidence and sub-
clause (1B) allows children to give unsworn evidence even if
they are not competent to give sworn evidence, if they can
understand and give understandable responses to questions put
to them. Sub-clause (1C) allows children and persons with a
cognitive impairment who are not competent to give unsworn
evidence, to be considered competent to give evidence about
another fact to which a question relates which the witness can
understand and to which his or her answer can be understood.
The provision will require the court to explain to a child or
person with a cognitive impairment considered competent to give
evidence under section 23, the importance of telling the truth,
that he or she may not be able to answer a question asked of him
or her and that he or she should say so if this occurs and that he
or she should feel free to disagree with statements they consider
untrue and should agree with statements that are true.
Clause 26 repeals section 23A of the Evidence Act 1958.
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Clause 27 inserts guiding principles to assist courts in interpreting and
applying Divisions 3 and 3AA of Part II of the Evidence Act
1958. These guiding principles state the social problem that
sexual offence laws and procedures, including those in this Bill,
aim to address, and provide further guidance where ambiguity
may exist in the interpretation.
Clause 28 amends the definition of "protected evidence" in section 32B of
the Evidence Act 1958 to include evidence that is protected from
being produced.
Clause 29 clarifies that the prohibition on the admission of evidence that
would disclose a confidential communication made between a
victim and his or her counsellor also applies where a person is
compelled, whether through subpoena or otherwise, to produce a
document containing a confidential communication.
Clause 30 amends section 32D(1) of the Evidence Act 1958 to clarify and
expand upon the public interest factors that the court must have
regard to in determining whether to grant leave to compel
production, to produce or to adduce evidence that would disclose
a confidential communication.
Clause 31 makes consequential amendments to section 32E of the Evidence
Act 1958.
Clause 32 inserts a Note to the heading to Division 3 of Part II of the
Evidence Act 1958.
Clause 33 makes clear that the rule of evidence that prohibits cross-
examination of a complainant and admission of evidence about
the complainant's sexual activities applies to both consensual and
non-consensual sexual activities.
The new section further restricts the test for granting leave under
section 37A(3)(a) of the Evidence Act 1958 to receive evidence
about a complainant's prior sexual activities by requiring the
court to be satisfied that the evidence has substantial relevance to
a fact in issue and that the admission of it is in the interests of
justice.
Relevant factors in assessing the interests of justice include the
probative value of the evidence measured against the distress that
may be caused to the complainant as a result of the cross-
examination, the risk of the evidence encouraging bias or
prejudice in the jury, respect for the complainant's dignity and
privacy and the right of the accused to fully answer and defend
the charge.
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The clause also removes from the ambit of admissibility set out
in section 37A(1), Rule (4), evidence tending to establish that the
complainant freely agreed to engage in sexual activity with the
accused or another person other than the activity to which the
charge relates. Further, that such evidence is not admissible to
infer that the complainant is the type of person who is more
likely to have consented to the sexual activity to which the charge
relates.
Clause 34 makes clear that the alternative arrangements for the giving of
evidence by children and people with a cognitive impairment in
the prosecution of sexual offences are those set out in new
section 41E of the Evidence Act 1958. The clause
consequentially repeals section 37C(2)(b).
Clause 35 inserts new section 37CA into the Evidence Act 1958.
The section provides for a special procedure for the cross-
examination of complainants and their family members (referred
to as protected witnesses) in the prosecution of sexual offences in
which the accused is not legally represented.
The section prohibits cross-examination of protected witnesses in
person by the accused. It sets out a special procedure whereby an
accused who has not obtained legal representation, after being
given a reasonable opportunity to do so must have a legal
practitioner appointed to him or her by Victoria Legal Aid for the
purpose of cross-examining the protected witness.
A legal practitioner appointed for this purpose is obliged to act in
the best interests of the accused should the accused not give him
or her any instructions. If the accused person refuses the legal
representation provided under the proposed section, the court
must then warn the accused that he or she will not be allowed to
adduce evidence from a witness in relation to a fact in issue with
the intention of contradicting the evidence of a protected witness
in relation to that fact, if the fact upon which he or she intends to
rely to contradict the evidence of the protected witness has not
been put to that protected witness during cross-examination.
The section requires the court to warn the jury where the accused
is only represented for the purposes of cross-examining a
protected witness, that this procedure is routine, that no adverse
inference may be drawn from this procedure, and that evidence
given under cross-examination conducted through the new
procedure should not be treated differently as a result.
Clause 36 makes a consequential amendment to section 37D(8) of the
Evidence Act 1958.
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Clause 37 inserts new section 37E into the Evidence Act 1958. The section
provides that in sexual offence cases, a court may receive expert
evidence regarding the nature of sexual assault and the factors
that may affect the behaviour of persons who have experienced it.
Expert evidence is aimed at providing juries with evidence-based
information that can guide them in their decision making.
The court retains its discretion to exclude evidence that is not
sufficiently related to the facts in issue. The section abolishes the
common knowledge rule in sexual offence cases.
Clause 38 inserts a new Division 3AA into Part II of the Evidence Act
1958. This new Division relates to witnesses who are children or
persons with a cognitive impairment.
New section 41C provides for the admission of expert evidence
in sexual offence cases for the purpose of assessing the
competence of a child or a person with a cognitive impairment to
give evidence under section 23 of the Evidence Act 1958.
New section 41D introduces a statutory exception to the hearsay
rule in sexual offence cases where the complainant is a child
under the age of 17. The section provides that if such a witness
has made a previous representation and is available to give
evidence about the existence of a fact of which he or she intended
to assert by the representation, or if the child complainant's
credibility is relevant, to support his or her credibility, the
hearsay rule does not apply to evidence of the representation
that is given by the child complainant or by a person who saw,
heard or otherwise perceived the representation being made.
This statutory exception is subject to the court being satisfied
that the evidence is relevant to a fact in issue and is sufficiently
probative, having regard to the nature and content of the
representation and the circumstances in which it was made.
The section also provides that a witness has personal knowledge
of an asserted fact if his or her knowledge of that fact was, or
might reasonably be supposed to have been, based on something
that the person saw, heard or otherwise perceived, other than a
previous representation made by another person about the fact.
Where evidence that is the subject of the exception is admitted,
the court must warn the jury that it may not be as reliable as
direct evidence. The court's discretion to exclude evidence is
retained.
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New section 41E provides for a complainant who is a child or a
person with a cognitive impairment to give evidence through
alternative arrangements that include the giving of evidence from
outside the court room via CCTV, the giving evidence in the
court room through the use of screens and the giving evidence in
the presence of a support person of the complainant's choice.
These alternative arrangements must be utilised unless the
complainant is aware of his or her right to give evidence in this
way but wishes and is able to give evidence in the court room and
the prosecution makes an application for the alternative
arrangements not to be utilised. The section deems any place
outside the court room where a complainant gives evidence via
an alternative arrangement to be part of the court room.
New section 41F provides for greater protection from improper
questioning of witnesses who are children or persons with a
cognitive impairment.
An improper question is a question that is confusing or
misleading, is phrased in inappropriate language, is annoying,
harassing, intimidating, offensive, oppressive or unduly
repetitive, whether because of its content, or the manner in which
it is structured or sequenced or the tone in which it is put, having
regard to matters such as any relevant condition of the witness
(including his or her age, cultural background, personality,
education and level of understanding) and any cognitive
impairment that the witness is, or appears to be subject.
Such questions must be disallowed by the court or the
complainant must be told that he or she does not have to answer
the question.
New section 41G creates a presumption in favour of pre-
recording the evidence of a child or a person with a cognitive
impairment who is a complainant in a sexual offence case.
The section requires that such evidence be recorded at a special
hearing within 21 days of the accused being committed to stand
trial. This time-limit may be extended by the court in limited
circumstances. The accused and his or her legal representative
must be present in the court room at the special hearing.
Evidence recorded at the special hearing must be video recorded
and presented to the court and the jury in the form of that
recording. The court may direct that the complainant give direct
testimony before the jury where the prosecution makes an
application for this to occur and where the court is satisfied that
the complainant is aware of his or her right to utilise the special
procedure and wishes and is able to give direct testimony.
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New section 41H governs the use of the pre-recorded evidence
referred to in section 41G. It provides that this evidence is to be
treated as if it were given through direct testimony and that it
may be admitted in subsequent proceedings such as a retrial,
appeal or in proceedings for other charges arising out of the same
circumstances.
The section provides that all or any part of the recorded evidence
may be ruled inadmissible and that in such instance the court
may order that the recorded evidence be edited accordingly.
The complainant will not have to attend the trial unless required
to do so by the court for the purposes of giving further evidence.
Any such requirement is limited to circumstances where the
accused is seeking leave on the basis of a matter of which he or
she could not reasonably have been aware at the time the
evidence was recorded or where the giving of further evidence
by the complainant is in the interests of justice.
PART 5--AMENDMENT OF MAGISTRATES' COURT
ACT 1989
Clause 39 inserts a definition of "cognitive impairment" into clause 1 of
Schedule 5 to the Magistrates' Court Act 1989.
Clause 40 inserts a new Part 3A in Schedule 5 to the Magistrates' Court
Act 1989 which provides time limits for certain committal
proceedings. New clause 10A provides that in a committal
proceeding for a sexual offence where the complainant is a child
or a person with a cognitive impairment and in which a witness
other than the complainant is to be cross-examined, the court
must determine the committal within 60 days of the committal
mention date.
The court may extend the time in exceptional circumstances.
The clause provides that the time limits do not apply where the
accused has failed to appear.
Clause 41 inserts new clause 11A into Part 5 of the Schedule to the
Magistrates' Court Act 1989 which prohibits cross-examination
of a complainant who is a child or a person with a cognitive
impairment in committal proceedings for sexual offences.
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PART 6--CONSEQUENTIAL AMENDMENT OF OTHER
ACTS
Clause 42 makes consequential amendments to Schedule 8 to the Crimes
Act 1958.
Clause 43 makes consequential amendments to the Sentencing Act 1991.
Clause 44 makes consequential amendments to the Serious Sex Offenders
Monitoring Act 2005.
Clause 45 makes consequential amendments to the Sex Offenders
Registration Act 2004.
Clause 46 makes consequential amendments to the Victims of Crimes
Assistance Act 1996.
Clause 47 makes consequential amendments to the Working with
Children Act 2005.
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