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CRIMES (SEXUAL OFFENCES) (FURTHER AMENDMENT) BILL 2006

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

                                       1
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 2

 


 

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. 3

 


 

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. 4

 


 

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 5

 


 

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. 6

 


 

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). 7

 


 

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. 8

 


 

 


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