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CRIMINAL CODE AND JURY AND ANOTHER ACT AMENDMENT BILL 2008

          Queensland



Criminal Code and Jury and
Another Act Amendment Bill
2008

 


 

 

Queensland Criminal Code and Jury and Another Act Amendment Bill 2008 Contents Page Part 1 Preliminary 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Part 2 Amendment of Criminal Code 2 Act amended in pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3 Amendment of s 590AA (Pre-trial directions and rulings) . . . . . . 4 4 Amendment of s 604 (Trial by jury). . . . . . . . . . . . . . . . . . . . . . . . 4 5 Insertion of new ch 62, ch div 9A . . . . . . . . . . . . . . . . . . . . . . . . . 5 Chapter division 9ATrial by judge alone 614 Application for order . . . . . . . . . . . . . . . . . . . . . . . . . . 5 615 Making a no jury order . . . . . . . . . . . . . . . . . . . . . . . . 5 615A More than 1 charge or accused person . . . . . . . . . . . 6 615B Law and procedure to be applied . . . . . . . . . . . . . . . . 7 615C Judge's verdict and judgment . . . . . . . . . . . . . . . . . . . 7 615D Particular proceedings excluded from application . . . 8 615E References to trial by jury. . . . . . . . . . . . . . . . . . . . . . 8 6 Insertion of new ch 83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Chapter 83 Transitional provision for Criminal Code and Jury and Another Act Amendment Act 2008 720 Trial by judge alone . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Part 3 Amendment of Jury Act 1995 7 Act amended in pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 8 Replacement of s 59 (Unanimous verdict in criminal cases) . . . . 9 59 Verdict in criminal cases for particular offences must be unanimous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 59A Verdict in criminal cases for other offences . . . . . . . . 10 9 Insertion of new s 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

 


 

Criminal Code and Jury and Another Act Amendment Bill 2008 Contents 79 Transitional provision for Criminal Code and Jury and Another Act Amendment Act 2008--majority verdicts 11 Part 4 Amendment of Crime And Misconduct Act 2001 10 Act amended in pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 11 Amendment of 192 (Refusal to answer question) . . . . . . . . . . . . 12 12 Insertion of new ch 8, pt 6--. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Part 6 Criminal Code and Jury and Another Act Amendment Act 2008 385 Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Page 2

 


 

2008 A Bill for An Act to amend the Criminal Code, the Jury Act 1995 and the Crime and Misconduct Act 2001 for particular purposes

 


 

Criminal Code and Jury and Another Act Amendment Bill 2008 Part 1 Preliminary [s 1] The Parliament of Queensland enacts-- 1 Part 1 Preliminary 2 Clause 1 Short title 3 This Act may be cited as the Criminal Code and Jury and 4 Another Act Amendment Act 2008. 5 Part 2 Amendment of Criminal Code 6 Clause 2 Act amended in pt 2 7 This part amends the Criminal Code. 8 Clause 3 Amendment of s 590AA (Pre-trial directions and rulings) 9 Section 590AA(2)-- 10 insert-- 11 `(da) an application for trial by a judge sitting without a jury; 12 or'. 13 Clause 4 Amendment of s 604 (Trial by jury) 14 Section 604(1), after `Subject to'-- 15 insert-- 16 `chapter division 9A and'. 17 Page 4

 


 

Criminal Code and Jury and Another Act Amendment Bill 2008 Part 2 Amendment of Criminal Code [s 5] Clause 5 Insertion of new ch 62, ch div 9A 1 Chapter 62-- 2 insert-- 3 `Chapter division 9A Trial by judge alone 4 `614 Application for order 5 `(1) If an accused person is committed for trial on a charge of an 6 offence or charged on indictment of an offence, the prosecutor 7 or the accused person may apply to the court for an order (no 8 jury order) that the accused person be tried by a judge sitting 9 without a jury. 10 `(2) The application must be made under section 590AA before 11 the trial begins. 12 `(3) If the identity of the trial judge is known to the parties when 13 the application is decided, a no jury order may be made only if 14 the court is satisfied there are special reasons for making it. 15 `(4) Subsection (3) does not limit section 615 or any other 16 restriction on making a no jury order imposed by this chapter 17 division. 18 `(5) The court may inform itself in any way it considers 19 appropriate in relation to the application. 20 `(6) For subsection (2), the trial begins when the jury panel attends 21 before the court. 22 `615 Making a no jury order 23 `(1) The court may make a no jury order if it considers it is in the 24 interests of justice to do so. 25 `(2) However, if the prosecutor applies for the no jury order, the 26 court may only make the no jury order if the accused person 27 consents to it. 28 `(3) If the accused person is not represented by a lawyer, the court 29 must be satisfied that the accused person properly understands 30 the nature of the application. 31 Page 5

 


 

Criminal Code and Jury and Another Act Amendment Bill 2008 Part 2 Amendment of Criminal Code [s 5] `(4) Without limiting subsection (1), (2) or (3), the court may 1 make a no jury order if it considers that any of the following 2 apply-- 3 (a) the trial, because of its complexity or length or both, is 4 likely to be unreasonably burdensome to a jury; 5 (b) there is a real possibility that acts that may constitute an 6 offence under section 119B would be committed in 7 relation to a member of a jury; 8 (c) there has been significant pre-trial publicity that may 9 affect jury deliberations. 10 `(5) Without limiting subsection (1), the court may refuse to make 11 a no jury order if it considers the trial will involve a factual 12 issue that requires the application of objective community 13 standards including, for example, an issue of reasonableness, 14 negligence, indecency, obscenity or dangerousness. 15 `615A More than 1 charge or accused person 16 `(1) If an accused person is charged with 2 or more charges that 17 are to be tried together, the court must not make a no jury 18 order in relation to 1 of the charges unless the court also 19 makes a no jury order in relation to each other charge. 20 `(2) If 2 or more accused persons are to be tried together, the court 21 must not make a no jury order in relation to 1 of the accused 22 persons unless the court also makes a no jury order in relation 23 to each other accused person. 24 `(3) To remove any doubt, it is declared that-- 25 (a) each of the accused persons must consent to the making 26 of the no jury order; and 27 (b) the making of an order for a separate trial under section 28 597A or a the giving of a direction about the separate 29 trial of an accused person under section 597B does not 30 prevent the making of a no jury order. 31 Page 6

 


 

Criminal Code and Jury and Another Act Amendment Bill 2008 Part 2 Amendment of Criminal Code [s 5] `615B Law and procedure to be applied 1 `(1) In a trial by a judge sitting without a jury, the judge must 2 apply, so far as is practicable, the same principles of law and 3 procedure as would be applied in a trial before a jury. 4 `(2) In a trial by a judge sitting without a jury, the judge may view 5 a place or thing. 6 `(3) If an Act or the common law-- 7 (a) requires information or a warning or instruction to be 8 given to the jury in particular circumstances; or 9 (b) prohibits a warning from being given to a jury in 10 particular circumstances; 11 the judge in a trial by a judge sitting without a jury must take 12 the requirement or prohibition into account if the 13 circumstances arise in the course of the trial. 14 `615C Judge's verdict and judgment 15 `(1) In a trial by a judge sitting without a jury-- 16 (a) the judge may make any findings and give any verdict 17 that a jury could have made or given if the trial had been 18 before a jury; and 19 (b) any finding or verdict of the judge has, for all purposes, 20 the same effect as a finding or verdict of a jury. 21 `(2) Without limiting subsection (1), chapter 67 applies with all 22 necessary changes in relation to a person to be tried, being 23 tried, or tried by a judge sitting without a jury in the same way 24 as it applies to persons tried by a judge sitting with a jury. 25 `(3) The judgment of the judge in a trial by a judge sitting without 26 a jury must include the principles of law that he or she has 27 applied and the findings of fact on which he or she has relied. 28 `(4) The validity of the proceeding is not affected by a trial judge's 29 failure to comply with subsection (3). 30 Page 7

 


 

Criminal Code and Jury and Another Act Amendment Bill 2008 Part 2 Amendment of Criminal Code [s 6] `615D Particular proceedings excluded from application 1 `This chapter division does not apply to-- 2 (a) a trial on indictment before a Childrens Court judge; or 3 Note-- 4 See also Juvenile Justice Act 1992, part 6. 5 (b) a trial on indictment of any offence against a law of the 6 Commonwealth. 7 `615E References to trial by jury 8 `(1) In an Act, a reference to the trial of a person by jury, however 9 expressed, includes, unless the contrary intention appears, a 10 reference to the trial of the person by a judge sitting without a 11 jury under this chapter division. 12 `(2) In an Act, a reference to a jury in the trial of a person, however 13 expressed, includes, unless the contrary intention appears, a 14 reference to a judge sitting without a jury under this chapter 15 division.'. 16 Clause 6 Insertion of new ch 83 17 Part 9-- 18 insert-- 19 `Chapter 83 Transitional provision for 20 Criminal Code and Jury and 21 Another Act Amendment Act 22 2008 23 `720 Trial by judge alone 24 `(1) Chapter 62, chapter division 9A applies in relation to a trial 25 begun after the commencement whether the offence was 26 committed before or after the commencement. 27 Page 8

 


 

Criminal Code and Jury and Another Act Amendment Bill 2008 Part 3 Amendment of Jury Act 1995 [s 7] `(2) For subsection (1), the trial has begun when the jury panel 1 attends before the court. 2 `(3) In this section-- 3 commencement means the commencement of the Criminal 4 Code and Jury and Another Act Amendment Act 2008, part 2. 5 Part 3 Amendment of Jury Act 1995 6 Clause 7 Act amended in pt 3 7 This part amends the Jury Act 1995. 8 Clause 8 Replacement of s 59 (Unanimous verdict in criminal 9 cases) 10 Section 59-- 11 omit, insert-- 12 `59 Verdict in criminal cases for particular offences must 13 be unanimous 14 `(1) This section applies to the following criminal trials on 15 indictment-- 16 (a) a trial for any of the following offences-- 17 (i) murder; 18 (ii) an offence against the Criminal Code, section 19 54A(1) if, because of the circumstances of the 20 offence, the offender is liable to imprisonment for 21 life, which can not be mitigated or varied under the 22 Criminal Code or any other law; 23 (iii) an offence against a law of the Commonwealth; or 24 (b) a trial before a jury consisting of only 10 jurors when it 25 gives its verdict. 26 Page 9

 


 

Criminal Code and Jury and Another Act Amendment Bill 2008 Part 3 Amendment of Jury Act 1995 [s 8] `(2) For subsection (1)(b), it does not matter that at any time 1 before its verdict was given the jury consisted of more than 10 2 jurors. 3 `(3) The verdict of the jury must be unanimous. 4 `(4) However, if on the trial of an offence mentioned in subsection 5 (1)(a)(i) or (ii)-- 6 (a) the jury is unable to reach a unanimous verdict; and 7 (b) the defendant is liable to be convicted of another offence 8 not mentioned in subsection (1)(a)(i) or (ii); 9 in relation to the conviction for the other offence, section 59A 10 applies as if the defendant were originally charged with the 11 other offence. 12 `59A Verdict in criminal cases for other offences 13 `(1) This section applies to a criminal trial on indictment other 14 than the following trials-- 15 (a) a trial for an offence mentioned in section 59(1)(a); or 16 (b) a trial before a jury as mentioned in section 59(1)(b). 17 `(2) If, after the prescribed period, the judge is satisfied that the 18 jury is unlikely to reach a unanimous verdict after further 19 deliberation, the judge may ask the jury to reach a majority 20 verdict. 21 `(3) If the jury can reach a majority verdict, the verdict of the jury 22 is the majority verdict. 23 `(4) For the definition in subsection (6), prescribed period, 24 paragraph (a), the periods mentioned in subparagraphs (i), (ii) 25 and (iii) are the periods reasonably calculated by the judge. 26 `(5) A decision of the judge under subsection (4) is not subject to 27 appeal. 28 Page 10

 


 

Criminal Code and Jury and Another Act Amendment Bill 2008 Part 3 Amendment of Jury Act 1995 [s 9] `(6) In this section-- 1 majority verdict means-- 2 (a) if the jury consists of 12 jurors--a verdict on which at 3 least 11 jurors agree; or 4 (b) if the jury consists of 11 jurors--a verdict on which at 5 least 10 jurors agree. 6 prescribed period means-- 7 (a) a period of at least 8 hours after the jury retires to 8 consider its verdict, not including any of the following 9 periods-- 10 (i) a period allowed for meals or refreshments; 11 (ii) a period during which the judge allows the jury to 12 separate, or an individual juror to separate from the 13 jury; 14 (iii) a period provided for the purpose of the jury being 15 accommodated overnight; or 16 (b) the further period the judge considers reasonable having 17 regard to the complexity of the trial.'. 18 Clause 9 Insertion of new s 79 19 Part 9-- 20 insert-- 21 `79 Transitional provision for Criminal Code and Jury and 22 Another Act Amendment Act 2008--majority verdicts 23 `(1) Section 59 as in force before the commencement continues to 24 apply to a criminal trial begun but not completed before the 25 commencement as if the amending Act had not been enacted. 26 `(2) For subsection (1), a trial has begun when all the members of 27 the jury have been sworn. 28 `(3) Sections 59 and 59A as in force after the commencement 29 apply to a criminal trial that begins after the commencement 30 Page 11

 


 

Criminal Code and Jury and Another Act Amendment Bill 2008 Part 4 Amendment of Crime And Misconduct Act 2001 [s 10] whether the offence was committed before or after the 1 commencement. 2 `(4) In this section-- 3 amending Act means the Criminal Code and Jury and 4 Another Act Amendment Act 2008, part 3. 5 commencement means the commencement of the amending 6 Act.'. 7 Part 4 Amendment of Crime And 8 Misconduct Act 2001 9 Clause 10 Act amended in pt 4 10 This part amends the Crime and Misconduct Act 2001. 11 Clause 11 Amendment of 192 (Refusal to answer question) 12 Section 192(2)-- 13 omit, insert-- 14 `(2) The person is not entitled-- 15 (a) to remain silent; or 16 (b) to refuse to answer the question on the ground of the self 17 incrimination privilege or the ground of confidentiality. 18 `(2A) The person is entitled to refuse to answer the question on the 19 following grounds of privilege-- 20 (a) legal professional privilege; 21 (b) public interest immunity; 22 (c) parliamentary privilege.'. 23 Page 12

 


 

Criminal Code and Jury and Another Act Amendment Bill 2008 Part 4 Amendment of Crime And Misconduct Act 2001 [s 12] Clause 12 Insertion of new ch 8, pt 6-- 1 Chapter 8-- 2 insert-- 3 `Part 6 Criminal Code and Jury and 4 Another Act Amendment Act 2008 5 `385 Declaration 6 `(1) It is declared that, from the commencement, a witness at a 7 misconduct hearing was not entitled to refuse to answer a 8 question on the ground of the self incrimination privilege or 9 on the ground of confidentiality. 10 `(2) Without limiting subsection (1), it is declared that from the 11 commencement-- 12 (a) it has always been and continues to be lawful for the 13 presiding officer at a misconduct hearing to require an 14 individual to answer a question after that individual has 15 made a claim on the ground of the self incrimination 16 privilege in relation to an answer; and 17 (b) it has always been and continues to be lawful for the 18 presiding officer at a misconduct hearing, in response to 19 a claim on the ground of the self incrimination privilege 20 made by an individual in relation to an answer, to make 21 an order that all answers or a class of answer given by 22 the individual are to be regarded as having been given or 23 produced on objection on the ground of the self 24 incrimination privilege; and 25 (c) it has always been and continues to be lawful for the 26 presiding officer at a misconduct hearing to require an 27 individual to answer all questions or a class of question 28 after the presiding officer has made an order that all 29 answers or a class of answer given by the individual are 30 to be regarded as having been given or produced on 31 objection on the ground of the self incrimination 32 privilege; and 33 Page 13

 


 

Criminal Code and Jury and Another Act Amendment Bill 2008 Part 4 Amendment of Crime And Misconduct Act 2001 [s 12] (d) any answer given by an individual giving evidence at a 1 misconduct hearing who has been directed to answer a 2 question after a claim been made on the ground of the 3 self incrimination privilege in relation to that answer, 4 has always been and continues to be admissible in any 5 proceeding about-- 6 (i) the falsity or misleading nature of an answer, 7 document, thing or statement given or produced by 8 the individual; or 9 (ii) an offence against this Act; or 10 (iii) a contempt of a person conducting the hearing. 11 `(3) In this section-- 12 commencement means the commencement of section 192 on 13 1 January 2002. 14 misconduct hearing means a commission hearing in the 15 context of a misconduct investigation.'. 16 © State of Queensland 2008 Page 14

 


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