Crimes (Sexual Offences) (Further Amendment) Act 2006 (Vic)
Crimes (Sexual Offences) (Further Amendment) Act 2006
Act No. 76/2006
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY
1.Purpose
2.Commencement
PART 2—AMENDMENT OF CRIMES ACT 1958
3.Jury warnings
4.New section 607 inserted
607.Transitional provision—Crimes (Sexual Offences) (Further Amendment) Act 2006
PART 3—AMENDMENT OF EVIDENCE ACT 1958
5.Section 37C amended
6.New section 37CAA inserted
37CAA.Alternative arrangements for giving evidence by
certain complainants in certain proceedings
7.Alternative arrangements for giving evidence in certain proceedings by child complainants or complainants with a cognitive impairment
8.New section 159 inserted
159.Transitional provision—Crimes (Sexual Offences) (Further Amendment) Act 2006
PART 4—AMENDMENT OF MAGISTRATES' COURT
ACT 1989
9.New section 4R inserted
4R.Sexual Offences List
PART 5—AMENDMENT OF CRIMES (SEXUAL OFFENCES) ACT 2006
10.New sections 19A and 19B inserted
19A.New section 606A inserted
11.New section 23A inserted
23A.New section 33A inserted
12.New section 38A inserted
38A.New section 158A inserted
13.New section 41A inserted
41A.New clause 35A inserted in Schedule 8
14.Amendment of Sentencing Act 1991
15.Amendment of Serious Sex Offenders Monitoring Act 2005
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ENDNOTES
Crimes (Sexual Offences) (Further Amendment) Act 2006
[Assented to 10 October 2006]
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1.Purpose
The main purposes of this Act are to amend—
(a)the Crimes Act 1958 to further provide for the use of jury warnings in sexual offence cases where there has been a delay in reporting the alleged offence; and
(b)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; and
(c)the Magistrates' Court Act 1989 to provide for a Sexual Offences List; and
(d)the Crimes (Sexual Offences) Act 2006 to provide for transitional arrangements relating to that Act.
2.Commencement
(1)This Part comes into operation on the day after the day on which this Act receives the Royal Assent.
(2)Part 3 comes into operation immediately after the coming into operation of section 38 of the Crimes (Sexual Offences) Act 2006.
(3)The remaining provisions of this Act come into operation on a day or days to be proclaimed.
(4)If a provision referred to in sub-section (3) does not come into operation before 1 December 2006, it comes into operation on that day.
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PART 2—AMENDMENT OF CRIMES ACT 1958
3.Jury warnings
(1)For section 61(1)(b) of the Crimes Act 1958 substitute—
"(b)if evidence is given or a question is asked of a witness or a statement is made in the course of an address on evidence which tends to suggest that there was delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge—
(i)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; and
(ii)must not warn, or suggest in any way to, the jury that the credibility of the complainant is affected by the delay unless, on the application of the accused, the judge is satisfied that there is sufficient evidence tending to suggest that the credibility of the complainant is so affected to justify the giving of such a warning; and
(iii)must not warn, or suggest in any way to, the jury that it would be dangerous or unsafe to find the accused guilty because of the delay.".
(2)After section 61(1) of the Crimes Act 1958 insert—
"(1A)If the judge, on the application of the accused in a proceeding to which sub-section (1) applies, is satisfied that the accused has suffered a significant forensic disadvantage because of the consequences of the 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, in any terms that the judge considers appropriate having regard to the circumstances of the case—
(a)inform the jury of the nature of the forensic disadvantage suffered by the accused; and
(b)instruct the jury to take that disadvantage into consideration.
(1B)Despite sub-section (1A), a judge must not warn, or suggest in any way to, the jury that it would be dangerous or unsafe to find the accused guilty because of the delay.
(1C)For the purposes of sub-section (1A), the passage of time alone is not to be taken to cause a significant forensic disadvantage.
(1D)Nothing in sub-section (1A) requires a judge to give a warning referred to in that sub-section if there is no reason to do so in the particular proceeding.
(1E)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 this section and any rule of law to the contrary is hereby abrogated.
(1F)Nothing in sub-sections (1A) to (1E) affects the power of a judge to give any other warning to, or to otherwise inform, the jury.".
4.New section 607 inserted
After section 606A of the Crimes Act 1958 insert—
"607.Transitional provision—Crimes (Sexual Offences) (Further Amendment) Act 2006
The amendments made to this Act by section 3 of the Crimes (Sexual Offences) (Further Amendment) Act 2006 apply to any proceeding that commences on or after the commencement of that section, irrespective of when the offence to which the proceeding relates is alleged to have been committed.".
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PART 3—AMENDMENT OF EVIDENCE ACT 1958
5.Section 37C amended
For section 37C(1) of the Evidence Act 1958 substitute—
"(1)This section does not apply to a witness who is a complainant in relation to a charge for a sexual offence.
Note 1:Section 37CAA provides for alternative arrangements for the giving of evidence by a complainant (other than a complainant who is a child or a person with a cognitive impairment) in legal proceedings that relate to a charge for a sexual offence.
Note 2:Section 41E provides for alternative arrangements for the giving of evidence by a complainant who is a child or a person with a cognitive impairment in legal proceedings that relate to a charge for a sexual offence.".
6.New section 37CAA inserted
After section 37C of the Evidence Act 1958 insert—
"37CAA.Alternative arrangements for giving evidence by certain complainants in certain proceedings
(1)Subject to this section, 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 a complainant (other than a complainant who is a child or a person with a cognitive impairment)—
(a)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;
(b)using screens to remove the defendant from the witness' direct line of vision;
(c)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.
(2)The court must direct that the arrangement referred to in sub-section (1)(a) be made unless—
(a)the court is satisfied that the complainant—
(i)is aware of his or her right to give evidence in accordance with the arrangement referred to in sub-section (1)(a); and
(ii)is able and wishes to give evidence in the courtroom; and
(b)the court, on the application of the prosecution, determines not to direct that the arrangement referred to in sub-section (1)(a) be made.
(3)The court must direct that any evidence given by a complainant in accordance with the arrangement referred to in sub-section (1)(a) is recorded.
(4)If a court directs that the arrangement referred to in sub-section (1)(a) be 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.
(5)If the complainant is giving evidence in the courtroom, the court must direct that the arrangement referred to in sub-section (1)(b) be made unless it is satisfied that the complainant—
(a)is aware of his or her right to give evidence in accordance with the arrangement referred to in sub-section (1)(b); and
(b)does not wish a screen to be used to remove the defendant from his or her direct line of vision.
(6)The court must direct that the arrangement referred to in sub-section (1)(c) be made unless the court is satisfied that the complainant—
(a)is aware of his or her right to give evidence in accordance with the arrangement referred to in sub-section (1)(c); and
(b)does not want a person to be beside him or her while he or she is giving evidence for the purpose of providing emotional support to him or her.
(7)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.
(8)Any place outside the courtroom where a witness is permitted to give evidence under this section is to be taken to be part of the courtroom while the witness is there for the purpose of giving evidence.
(9)The court may at any time in the course of the proceeding vary or revoke a direction made under this section either of its own motion or on the application of a party to the proceeding.".
7.Alternative arrangements for giving evidence in certain proceedings by child complainants or complainants with a cognitive impairment
(1)For the heading to section 41E of the Evidence Act 1958 substitute—
"Alternative arrangements for giving evidence in certain proceedings by child complainants or complainants with a cognitive impairment".
(2)In section 41E of the Evidence Act 1958—
(a)in sub-section (1) omit "alternative";
(b)in sub-section (2) omit "alternative".
8.New section 159 inserted
After section 158A of the Evidence Act 1958 insert—
"159.Transitional provision—Crimes (Sexual Offences) (Further Amendment) Act 2006
The amendments made to this Act by sections 5, 6 and 7 of the Crimes (Sexual Offences) (Further Amendment) Act 2006 apply to any proceeding that commences on or after the commencement of those provisions, irrespective of when the offence to which the proceeding relates is alleged to have been committed.".
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PART 4—AMENDMENT OF MAGISTRATES' COURT ACT 1989
9.New section 4R inserted
Before section 5 of the Magistrates' Court Act 1989 insert—
"4R.Sexual Offences List
(1)A Sexual Offences List is established.
(2)The Sexual Offences List consists of any proceeding that relates (wholly or partly) to a charge for a sexual offence.
(3)The operation and administration of the Sexual Offences List is at the direction of the Chief Magistrate.
(4)The Chief Magistrate, under section 16A, may issue practice directions, statements or notes for the Court in relation to the Sexual Offences List.
(5)Nothing in this section takes away from, or limits, a discretion or power conferred on the Chief Magistrate by or under this Act.".
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PART 5—AMENDMENT OF CRIMES (SEXUAL OFFENCES) ACT 2006
10.New sections 19A and 19B inserted
After section 19 of the Crimes (Sexual Offences) Act 2006 insert—
'19A.New section 606A inserted
After section 606 of the Crimes Act 1958 insert—
"606A.Transitional provision—Crimes (Sexual Offences) Act 2006
(1)An amendment made to this Act by a provision of section 4 or 5 of the Crimes (Sexual Offences) Act 2006 applies to any trial that commences on or after the commencement of that provision, irrespective of when the offence to which the trial relates is alleged to have been committed.
(2)An amendment made to this Act by a provision of section 6, 8, 9, 10, 11, 12 or 17(4) or (5) of the Crimes (Sexual Offences) Act 2006 applies only to offences alleged to have been committed on or after the commencement of that provision.
(3)For the purposes of sub-section (1), a trial commences on arraignment of the accused in accordance with Subdivision (12) of Division 1 of Part III.
(4)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 a provision of the Crimes (Sexual Offences) Act 2006, the offence is alleged to have been committed before the commencement of that provision.".
19B.Schedule 8 amended
After clause 12 of Schedule 8 to the Crimes Act 1958 insert—
"12A.An offence that, at the time it was committed, was a forensic sample offence.".'.
11.New section 23A inserted
After section 23 of the Crimes (Sexual Offences) Act 2006 insert—
'23A.New section 33A inserted
After section 33 of the Crimes (Criminal Trials) Act 1999 insert—
"33A.Transitional provision—Crimes (Sexual Offences) Act 2006
(1)An amendment made to this Act by a provision of section 21 (other than sub-section (3)) of the Crimes (Sexual Offences) Act 2006 applies only to offences alleged to have been committed on or after the commencement of that provision.
(2)An amendment made to this Act by a provision of section 21(3) or 22 of the Crimes (Sexual Offences) Act 2006 applies to any trial that commences on or after the commencement of that provision, irrespective of when the offence to which the trial relates is alleged to have been committed.
(3)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 a provision of the Crimes (Sexual Offences) Act 2006, the offence is alleged to have been committed before the commencement of that provision.
(4)For the purposes of sub-section (2), a trial commences on arraignment of the accused in accordance with Subdivision (12) of Division 1 of Part III.".'.
12.New section 38A inserted
After section 38 of the Crimes (Sexual Offences) Act 2006 insert—
'38A.New section 158A inserted
After section 158 of the Evidence Act 1958 insert—
"158A.Transitional provision—Crimes (Sexual Offences) Act 2006
(1)An amendment made to this Act by a provision of section 25, 29, 30, 33 or 37 of the Crimes (Sexual Offences) Act 2006 applies to—
(a)any legal proceeding commenced before the commencement of that provision if at the commencement of that provision—
(i)the hearing of the proceeding had not commenced; or
(ii)no evidence had been given on the hearing of the proceeding; and
(b)any legal proceeding that commences on or after the commencement of that provision.
(2)An amendment made to this Act by a provision of section 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.".'.
13.New section 41A inserted
After section 41 of the Crimes (Sexual Offences) Act 2006 insert—
'41A.New clause 35A inserted in Schedule 8
After clause 35 of Schedule 8 to the Magistrates' Court Act 1989 insert—
"35A.An amendment made to this Act by a provision of section 40 or 41 of the Crimes (Sexual Offences) Act 2006 applies only to a criminal proceeding commenced on or after the commencement of that provision.".'.
14.Amendment of Sentencing Act 1991
(1)For section 43(1) of the Crimes (Sexual Offences) Act 2006 substitute—
'(1)In section 3(1) of the Sentencing Act 1991, in the definition of "serious offence"—
(a)in paragraph (c)(viii), for "(sexual relationship with" substitute "(persistent sexual abuse of";
(b)after paragraph (d) insert—
"(da)an offence that, at the time it was committed, was a serious offence; or";
(c)in paragraph (f), for "paragraph (a), (b), (c), (d) or (e)" substitute "any of the preceding paragraphs".'.
(2)In section 43(2) of the Crimes (Sexual Offences) Act 2006—
(a)in paragraph (e), for ' "a child".' substitute
' "a child";';
(b)after paragraph (e) insert—
'(f)after clause 1(df) insert—
"(dg)an offence that, at the time it was committed, was an offence to which this clause applied;";'.
15.Amendment of Serious Sex Offenders Monitoring Act 2005
In section 44 of the Crimes (Sexual Offences) Act 2006—
(a)in paragraph (h), for "repealed." substitute "repealed;";
(b)after paragraph (h) insert—
'(i)after item 39 insert—
"39A.An offence that, at the time it was committed, was an offence listed in this Schedule.".'.
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ENDNOTES
Minister's second reading speech—
Legislative Assembly: 10 August 2006
Legislative Council: 3 October 2006
The long title for the Bill for this Act was "to amend the Crimes Act 1958 in relation to jury warnings, the Evidence Act 1958 in relation to 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 and the Crimes (Sexual Offences) Act 2006 in relation to transitional arrangements and for other purposes."
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