Criminal Law and Evidence Amendment Act 2008 (WA)

Western Australia

Criminal Law and Evidence Amendment

Act 2008

Western Australia

Criminal Law and Evidence Amendment

Act 2008

CONTENTS

Part 1 — Preliminary matters

1.	Short title	2
2.	Commencement	2
Part 2 — *The Criminal Code* amended
3.	The Criminal Code amended in this Part	3
4.	Section 1 amended	3
5.	Section 297 amended	3
6.	Section 313 amended and consequential
amendment to Criminal Code Amendment (Racial
Vilification) Act 2004	5
7.	Section 317 amended and consequential
amendment to Criminal Code Amendment (Racial
Vilification) Act 2004	5
8.	Section 317A amended and consequential
amendment to Criminal Code Amendment (Racial
Vilification) Act 2004	5
9.	Section 318 amended	6
10.	Section 321A replaced	8

321A.

Child under 16, persistent sexual conduct

with

11.	Section 338C amended	10
12.	Section 338E amended	11
Part 3 — *Criminal Procedure*

Act 2004 amended

13.

The Act amended in this Part

Criminal Law and Evidence Amendment Act 2008

Contents

14.	Section 14 amended	12
15.	Section 20 amended	12
16.	Section 55 amended	12
17.	Section 62 amended	13
18.	Section 69 amended	13
19.	Section 75 amended	13
20.	Section 77 amended	14
21.	Section 84 amended	14
22.	Section 86A inserted	15

86A.

Remitting charges to summary courts

23.	Section 98 amended	15
24.	Section 111 replaced	15

111. Jury not to separate or communicate with

others

25.	Section 129 amended	17
26.	Section 133 amended	17
27.	Section 148 amended	18
28.	Section 169 replaced	18

169. Prosecution determined by court without

jurisdiction

29.	Schedule 2 amended	19
30.	Schedule 3 amended	19
Part 4 — *Criminal Appeals Act 2004*

amended

31.	The Act amended in this Part	20
32.	Section 24 amended	20
33.	Section 25 amended	20
34.	Section 26 amended	21
35.	Section 31 amended	21
36.	Section 33 amended	21
37.	Section 34 amended	21
38.	Section 35A inserted	22

35A.

Accused’s costs in some appeals to be

paid by State

39.	Section 41 amended	22
40.	Section 51 inserted	23

51.

Certain amendments to be reviewed

Part 5 — Evidence Act 1906 amended

41.

The Act amended in this Part

Criminal Law and Evidence Amendment Act 2008

Contents

42. Section 36BE inserted and consequential

amendments

36BE.

Expert evidence of child behaviour

43.

Section 100A amended

44.

Section 106A amended

45.

Section 106B amended

46.

Section 106C replaced

106C.

Child under 12 and mentally impaired

witness may give unsworn evidence

47.	Section 106F amended	27
48.	Section 106HA amended	27
49.	Section 106HB amended	28
50.	Section 106HC amended	29
51.	Section 106I amended	29
52.	Section 106O amended	29
53.	Section 106R amended	30
54.	Section 106RA amended	31
55.	Second Schedule amended	31
Part 6 — Other Acts amended
56.	Bail Act 1982 amended	32
57.	Children’s Court of Western Australia Act 1988
amended	33
58.	Community Protection (Offender Reporting)
Act 2004 amended	33
59.	Criminal Injuries Compensation Act 2003
amended	33
60.	Criminal Law (Mentally Impaired Accused)
Act 1996 amended	34
61.	Criminal Property Confiscation Act 2000 amended	34
62.	Fertilizers Act 1977 amended	35
63.	Human Reproductive Technology Act 1991
amended	35
64.	Juries Act 1957 amended	35
65.	Land Valuers Licensing Act 1978 amended	36
66.	Licensed Surveyors Act 1909 amended	36
67.	Official Prosecutions (Accused’s Costs) Act 1973
amended	36
68.	Prisoners (Interstate Transfer) Act 1983 amended	37
69.	Prostitution Act 2000 amended	37
70.	Sentencing Act 1995 amended	37

Criminal Law and Evidence Amendment Act 2008

Contents

71.	Suitors’ Fund Act 1964 amended	38
72.	Western Australian College of Teaching Act 2004
amended	38
73.	Workers’ Compensation and Injury Management
Act 1981 amended	39
74.	Working with Children (Criminal Record
Checking) Act 2004 amended	40
Part 7 — Various amending Acts

amended

75. Acts Amendment (Court of Appeal) Act 2004

amended

76. Criminal Law Amendment (Simple Offences)

Act 2004 amended

77. Courts Legislation Amendment and Repeal

Act 2004 amended

78. Criminal Procedure and Appeals (Consequential

and Other Provisions) Act 2004 amended

Western Australia

Criminal Law and Evidence Amendment

Act 2008

No. 2 of 2008

An Act to amend —

•	**The Criminal Code; and**
•	the **Criminal Procedure Act 2004; and**
•	the **Criminal Appeals Act 2004; and**
•	the **Evidence Act 1906; and**
•	various other Acts,

and for related purposes.

[Assented to 12 March 2008]

The Parliament of Western Australia enacts as follows:

Criminal Law and Evidence Amendment Act 2008

Part 1	Preliminary matters
s. 1
Part 1 — Preliminary matters

1. Short title

This is the Criminal Law and Evidence Amendment Act 2008.

2. Commencement

(1)

This Act comes into operation on a day fixed by proclamation.

(2)

Different days may be fixed under subsection (1) for different

provisions.

Criminal Law and Evidence Amendment Act 2008

The Criminal Code amended

Part 2

s. 3

Part 2 — The Criminal Code amended

3. The Criminal Code amended in this Part

The amendments in this Part are to The Criminal Code* unless

otherwise indicated.

[* Reprint 12 as at 1 June 2005 (see the Schedule to the

Criminal Code Act 1913 appearing as Appendix B to the

Criminal Code Act Compilation Act 1913).

For subsequent amendments see Western Australian

Legislation Information Tables for 2005, Table 1, p. 112 and

Act No. 3 of 2006.]

4. Section 1 amended

Section 1 is amended by deleting the definition of

“circumstance of aggravation”.

5. Section 297 amended

(1)	Section 297 is amended as follows:

(a)	by inserting before “Any person” the subsection designation “(1)”;
(b)	by inserting before “If the offence is committed in the” the subsection designation “(2)”;
(c)	by inserting before “If the offence is committed in circumstances” the subsection designation “(3)”.

(2)	At the end of section 297 the following subsection is inserted —

“

(4) If —

(a)	the victim of the offence is a public officer who is performing a function of his office or employment; or
(b)	the offence is committed against a public officer on account of his being such an officer

Criminal Law and Evidence Amendment Act 2008

Part 2	The Criminal Code amended
s. 5

or his performance of a function of his office or

employment; or

(c)	the victim of the offence is the driver or person operating or in charge of —

(i) a vehicle travelling on a railway; or

(ii) a ferry; or

(iii) a passenger vehicle as defined in paragraph (a) of the definition of “passenger vehicle” in section 5(1) of

the Road Traffic Act 1974;

(d)	the victim of the offence is —

(i) an ambulance officer; or

(ii) a member of a FESA Unit, SES Unit or VMRS Group (within the meaning given to those terms by the Fire and Emergency Services Authority of Western Australia Act 1998); or

(iii) a member or officer of a private fire brigade or volunteer fire brigade (within the meaning given to those terms by the Fire Brigades Act 1942),

who is performing his or her duties as such; or

(e)	the victim of the offence is a person who —

(i) is working in a hospital; or

(ii) is in the course of providing a health service to the public;

(f)	the victim of the offence is a contract worker (within the meaning given to that term by the Court Security and Custodial Services

Act 1999) who is providing court security services or custodial services under that Act; or

Criminal Law and Evidence Amendment Act 2008

The Criminal Code amended

Part 2

s. 6

(g)	the victim of the offence is a contract worker (within the meaning given to that term by section 15A of the Prisons Act 1981) who is performing functions under Part IIIA of that Act,

the offender is liable to imprisonment for 14 years.

”.

6. Section 313 amended and consequential amendment to Criminal Code Amendment (Racial Vilification) Act 2004

(1)

Section 313(1)(a) is amended by inserting after

“aggravation” —

“ or in circumstances of racial aggravation ”.

(2)

The Criminal Code Amendment (Racial Vilification) Act 2004

section 7 is repealed.

7. Section 317 amended and consequential amendment to Criminal Code Amendment (Racial Vilification) Act 2004

(1)

Section 317(1)(a) is amended by inserting after

“aggravation” —

“ or in circumstances of racial aggravation ”.

(2)

The Criminal Code Amendment (Racial Vilification) Act 2004

section 8 is repealed.

8. Section 317A amended and consequential amendment to Criminal Code Amendment (Racial Vilification) Act 2004

(1)	Section 317A is amended as follows:

(a)	in the second paragraph designated “(a)” by inserting after “aggravation” —

“ or in circumstances of racial aggravation ”;

(b)	by redesignating the second paragraph designated “(a)” as paragraph (d);

Criminal Law and Evidence Amendment Act 2008

Part 2	The Criminal Code amended
s. 9

(c)	by redesignating the second paragraph designated “(b)” as paragraph (e);
(d)	in the summary conviction penalty paragraph (a) by deleting “paragraph (a)” and inserting instead —

“ paragraph (d) ”;

(e)	in the summary conviction penalty paragraph (b) by deleting “paragraph (b)” and inserting instead —

“ paragraph (e) ”.

(2)	The Criminal Code Amendment (Racial Vilification) Act 2004 section 9 is repealed.

9. Section 318 amended

Section 318(1) is amended as follows:

(a)	in paragraph (d) by inserting after “account of ” —

“ his being such an officer or ”;

(b)	by inserting after paragraph (g) — “

(h) assaults —

(i) an ambulance officer; or

(ii) a member of a FESA Unit, SES Unit or VMRS Group (within the meaning given to those terms by the Fire and Emergency Services Authority of Western Australia Act 1998); or

(iii) a member or officer of a private fire brigade or volunteer fire brigade (within the meaning given to those terms by the Fire Brigades Act 1942),

who is performing his or her duties as such; or

(i) assaults a person who —

(i) is working in a hospital; or

Criminal Law and Evidence Amendment Act 2008

The Criminal Code amended

Part 2

s. 9

(ii) is in the course of providing a health service to the public;

(j)	assaults a contract worker (within the meaning given to that term by the Court Security and Custodial Services Act 1999) who is providing court security services or custodial services under that Act; or
(k)	assaults a contract worker (within the meaning given to that term by section 15A of the Prisons Act 1981) who is performing functions under Part IIIA of that Act,

”;

(c)	after each of paragraphs (d) and (e) by inserting —

“ or ”;

(d)	after paragraph (g)(i) by inserting —

“ or ”;

(e)	by deleting “is guilty of a crime, and is liable to imprisonment for 10 years.” and the summary conviction penalty and inserting instead —

“

is guilty of a crime and is liable —

(l)	if at or immediately before or immediately after the commission of the offence —

(i)

the offender is armed with any instrument; or

(ii) the offender is in company with another person or persons,

to imprisonment for 10 years; or

(m)	in any other case, to imprisonment for 7 years.

Criminal Law and Evidence Amendment Act 2008

Part 2	The Criminal Code amended
s. 10
Summary conviction penalty: in a case to which subsection (1)(m) applies: imprisonment for 3 years and a fine of $36 000.

”.

10. Section 321A replaced

Section 321A is repealed and the following section is inserted

instead —

“

321A.

Child under 16, persistent sexual conduct with

(1)	In this section —
“prescribed offence” means —

(a)	an offence under section 320(2) or (4) or 321(2) or (4) or an attempt to commit such an offence; or
(b)	an offence under section 320(3) or 321(3) where the child in fact engages in sexual behaviour;

“sexual act” means an act that would constitute a

prescribed offence.

(2)	For the purposes of this section a person persistently engages in sexual conduct with a child if that person does a sexual act in relation to the child on 3 or more occasions each of which is on a different day.
(3)	For the purposes of subsection (2) —

(a)	the sexual acts need not all constitute the same prescribed offence; and
(b)	the sexual acts need not all have occurred in this State as long as at least one of them did.

(4)	A person who persistently engages in sexual conduct with a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 20 years.

Criminal Law and Evidence Amendment Act 2008

The Criminal Code amended	Part 2
s. 10

(5)	A charge of an offence under subsection (4) —

(a)	must specify the period during which it is alleged that the sexual conduct occurred; and
(b)	need not specify the dates, or in any other way particularise the circumstances, of the sexual acts alleged to constitute the sexual conduct.

(6)	A person charged with an offence under subsection (4) may also be charged, either in the same or a separate indictment, with a prescribed offence that is alleged to have been committed in the period during which it is alleged that the sexual conduct constituting the offence under subsection (4) occurred.
(7)	An indictment containing a charge of an offence under subsection (4) must be signed by the Director of Public Prosecutions or the Deputy Director of Public
Prosecutions.
(8)	A court cannot order the prosecutor to give a person charged with an offence under subsection (4) particulars of the sexual acts alleged to constitute the offence, despite section 131 of the Criminal Procedure Act 2004.
(9)	It is a defence to a charge of an offence under subsection (4) to prove the accused person —

(a)	believed on reasonable grounds that the child was of or over the age of 16 years; and
(b)	was not more than 3 years older than the child.

(10)

It is a defence to a charge of an offence under

subsection (4) to prove the accused person was

lawfully married to the child.

(11)

If in a trial by jury of a charge of an offence under

subsection (4), there is evidence of sexual acts on 4 or

more occasions, the jury members need not all be

satisfied that the same sexual acts occurred on the same

Criminal Law and Evidence Amendment Act 2008

Part 2

The Criminal Code amended

s. 11

occasions as long as the jury is satisfied that the

accused person persistently engaged in sexual conduct

in the period specified.

(12)

If an accused person is found not guilty of a charge of

an offence under subsection (4), he or she may

nevertheless be found guilty of one or more prescribed

offences committed in the period specified in the

charge if the offence or offences are established by the

evidence, despite section 10A.

(13)

If a person is sentenced, whether on one or more than

one indictment, to —

(a)	a term of imprisonment for an offence under subsection (4); and
(b)	a term of imprisonment for a prescribed offence committed in the period during which the offence under subsection (4) was committed,

the court must not order the terms to be served wholly

or partly cumulatively.

”.

11. Section 338C amended

Section 338C(3) is amended in the summary conviction penalty

as follows:

(a)	in paragraph (c) by deleting “paragraph (a)” and inserting instead —

“ subsection (3)(a) ”;

(b)	in paragraph (d) by deleting “paragraph (b)” and inserting instead —

“ subsection (3)(b) ”;

(c)	by renumbering paragraph (c) as paragraph (a);
(d)	by renumbering paragraph (d) as paragraph (b).

Criminal Law and Evidence Amendment Act 2008

The Criminal Code amended	Part 2
s. 12

12. Section 338E amended

Section 338E(1) is amended in the summary conviction penalty

as follows:

(a)	in paragraph (c) by deleting “paragraph (a)” and inserting instead —

“ subsection (1)(a) ”;

(b)	in paragraph (d) by deleting “paragraph (b)” and inserting instead —

“ subsection (1)(b) ”;

(c)	by renumbering paragraph (c) as paragraph (a);
(d)	by renumbering paragraph (d) as paragraph (b).

Criminal Law and Evidence Amendment Act 2008

Part 3	Criminal Procedure Act 2004 amended
s. 13

Part 3 — Criminal Procedure Act 2004 amended

13. The Act amended in this Part

The amendments in this Part are to the Criminal Procedure

Act 2004*.

[* Act No. 71 of 2004.]

14. Section 14 amended

Section 14(1) is amended by deleting “authorised” and inserting

instead —

“ approved ”.

15. Section 20 amended

Section 20(3) is amended by inserting after “by” —

“ , and only by ”.

16. Section 55 amended

(1)	Section 55(2) is amended by deleting “either a summons, a court hearing notice, or an approved notice, notifying the accused of the court date,” and inserting instead — “

a court hearing notice, or an approved notice, notifying

the accused of that date and that the court may deal

with the charge in the accused’s absence if the accused

does not appear on that date,

”.

(2)	Section 55(3) is repealed.
(3)	Section 55(4) is amended as follows:

(a)	by deleting “an authorised investigator,” and inserting instead —

“ a person acting under section 20(3), ”;

Criminal Law and Evidence Amendment Act 2008

Criminal Procedure Act 2004 amended	Part 3
s. 17

(b)	in paragraph (a)(i) by deleting “an authorised investigator who was acting in the course of his or her duties as such;” and inserting instead —

“ a person who was acting under section 20(3); ”;

(c)	in paragraph (a)(ii) by deleting “authorised investigator” and inserting instead —

“ person ”.

17. Section 62 amended

Section 62(1) is amended in the definition of “expert evidence material” in paragraph (c) by deleting “paragraph (b)(ii);” and inserting instead —

“ paragraph (b); ”.

18. Section 69 amended

(1)	Section 69(2) is amended by inserting after “The” —
“ approved ”.
(2)	After section 69(3) the following subsection is inserted —

“

(4)	A person who serves an approved notice under subsection (3) need not complete a service certificate in accordance with Schedule 2 clause 2, 3 or 4.

”.

19. Section 75 amended

(1)	Section 75(4) is amended as follows:

(a)	may issue a summons, court hearing notice or approved notice, as the case requires;

in paragraph (b) by deleting “issue any document “

”;

Criminal Law and Evidence Amendment Act 2008

Part 3	Criminal Procedure Act 2004 amended
s. 20

(b)

in paragraph (c) by inserting after “document “

(including a document referred to in section

139 or 155)

”.

(2)	After section 75(9) the following subsection is inserted —

“

(10)	An approved notice issued to a person under this section must be served on the person in accordance with Schedule 2 clause 2, 3 or 4.

”.

20. Section 77 amended

After section 77(6) the following subsection is inserted —

“

(7)	This section does not affect the operation of the Sentencing Act 1995 section 14A.

”.

21. Section 84 amended

Section 84(3) is amended by deleting “Perth.” and inserting

instead —

“

Perth, unless the superior court concerned gives leave

to lodge it at another place.

”.

Criminal Law and Evidence Amendment Act 2008

Criminal Procedure Act 2004 amended	Part 3
s. 22

22. Section 86A inserted

After section 86 the following section is inserted —

“

86A.

Remitting charges to summary courts

(1)

At any time after a court of summary jurisdiction

commits an accused to a superior court on a charge and

before an indictment is lodged that contains the charge,

the accused or the relevant authorised officer may

apply to the superior court to remit the charge to the

court of summary jurisdiction.

(2)

The superior court may remit the charge if it is

satisfied —

(a)	that the charge was committed to the superior court in error or before proceedings that should have occurred in the court of summary jurisdiction had been completed; or
(b)	that for some other good reason the charge should be remitted.

”.

23. Section 98 amended

Section 98(4) is amended by deleting “subsection (2)(c)” and

inserting instead —

“ subsection (2)(d) ”.

24. Section 111 replaced

Section 111 is repealed and the following section is inserted

instead —

“

111. Jury not to separate or communicate with others

(1)	For the purposes of this section, a trial by jury begins when the first juror is sworn and ends when the jury

Criminal Law and Evidence Amendment Act 2008

Part 3

Criminal Procedure Act 2004 amended

s. 24

gives or is discharged from giving its verdict and

includes any period when the jury is considering its

verdict and any period when the trial is adjourned.

(2)	During a trial by jury —

(a)	the jury must not separate unless permitted to do so under subsection (4)(a); and
(b)	the jury must not leave the charge of a court officer during any adjournment of the trial, unless it has been permitted to separate under subsection (4)(a); and
(c)	there must not be any communication between a juror and a person who is not a juror, except as permitted under subsection (4)(b).

(3)

Subsection (2)(c) does not apply to any communication

between a juror and the judge or the court officer in

charge of the jury, or by a party to the trial to the jury

as part of the ordinary course of the trial.

(4)

Despite subsection (2), the judge —

(a)	may permit the jury to separate during any adjournment of a trial by jury subject to any condition that the judge thinks necessary to impose in the interests of justice; and
(b)	may permit a juror and a person who is not a juror to communicate subject to any condition that the judge thinks necessary to impose in the interests of justice.

(5)

If subsection (2) or a condition imposed under

subsection (4) is contravened, the judge may discharge

the jury from giving its verdict, if it is in the interests of

justice to do so.

(6)

A juror who contravenes subsection (2) or a condition

imposed under subsection (4) is guilty of an offence

Criminal Law and Evidence Amendment Act 2008

Criminal Procedure Act 2004 amended	Part 3
s. 25

and is liable to a fine of $12 000 or imprisonment for

12 months.

(7)	A person who contravenes subsection (2)(c) or a condition imposed under subsection (4)(b) is guilty of an offence and is liable to a fine of $12 000 or imprisonment for 12 months.

”.

25. Section 129 amended

After section 129(4) the following subsection is inserted —

“

(5)	This section does not affect a court’s power to decide the material facts of an offence on the basis of such information as it thinks fit.

”.

26. Section 133 amended

Section 133(7) is repealed and the following subsection is

inserted instead —

“

(7)	If a superior court makes or refuses to make an order under subsection (3) or (4) before the day on which the accused’s trial is listed to start, the court must not start the trial unless the court is satisfied —

(a)	that no party who could commence an appeal against the order or refusal under the Criminal Appeals Act 2004 section 26 intends to do so; or

(b) that —

(i) the time for commencing such an appeal has expired; and

(ii) any such appeal commenced before the time expired has been concluded.

”.

Criminal Law and Evidence Amendment Act 2008

Part 3	Criminal Procedure Act 2004 amended
s. 27

27. Section 148 amended

Section 148 is amended by inserting after “subject to” —

“ The Criminal Code section 5, ”.

28. Section 169 replaced

Section 169 is repealed and the following section is inserted

instead —

“

169. Prosecution determined by court without jurisdiction

(1)

In this section, unless the contrary intention appears —

“jurisdictional error”, in relation to a charge against a person being dealt with by a court, means an error of fact or law that is material to whether the court has jurisdiction to deal with the charge.

(2)

If a court that does not have jurisdiction to deal with a

charge against a person determines the charge as a

result of a jurisdictional error —

(a)	the court’s determination has full force and effect; and
(b)	anything done as a result of the determination is lawful.

(3)	If a court that does not have jurisdiction to deal with a charge against a person determines a charge as mentioned in subsection (2), a party to the prosecution or the Attorney General may apply to —

(a) that court; or

(b)	if the determination is subject to an appeal, the court dealing with the appeal,

for an order varying or setting aside the determination.

Criminal Law and Evidence Amendment Act 2008

Criminal Procedure Act 2004 amended	Part 3
s. 29

(4)	The court to which such an application is made may either —

(a) refuse the application; or

(b)	vary the determination and any sentence imposed or other order made as a result of the determination; or
(c)	set aside the determination and any sentence imposed or other order made as a result of the determination and order the prosecution to be sent to and dealt with by a court that does have jurisdiction to deal with the charge against the person,

and may make any necessary consequential orders.

(5)	If a court is dealing with an appeal in relation to the determination, subsection (4) is in addition to the court’s powers on the appeal.

”.

29. Schedule 2 amended

Schedule 2 clause 2(2)(d) is amended by deleting “officer who at the time is in charge of the prison.” and inserting instead — “

chief executive officer (as that term is defined in

that section).

”.

30. Schedule 3 amended

Schedule 3 clause 5(4)(b) is amended by inserting after

“from” —

“

the person in charge of investigating the alleged

offence or

”.

Criminal Law and Evidence Amendment Act 2008

Part 4	Criminal Appeals Act 2004 amended
s. 31

Part 4 — Criminal Appeals Act 2004 amended

31. The Act amended in this Part

The amendments in this Part are to the Criminal Appeals

Act 2004*.

[* Act No. 60 of 2004.]

32. Section 24 amended

After section 24(2)(d) the following paragraph is inserted —

“

(da)

a judgment of acquittal (other than a judgment

of acquittal on account of unsoundness of

mind) entered after a jury’s verdict of not guilty

of a charge the statutory penalty for which is or

includes imprisonment for 14 years or more or

life, but only on the grounds that before or

during the trial the judge made an error of fact

or law in relation to the charge;

”.

33. Section 25 amended

After section 25(3)(a) the following paragraph is inserted —

“

(aa)

the acquittal if it was entered after a jury’s special verdict returned under the Criminal Procedure Act 2004 section 113(1) on a charge

the statutory penalty for which is or includes

imprisonment for 14 years or more or life, but

only on the grounds that before or during the

trial the judge made an error of fact or law in

relation to the charge;

”.

Criminal Law and Evidence Amendment Act 2008

Criminal Appeals Act 2004 amended	Part 4
s. 34

34. Section 26 amended

Section 26(5) and (6) are repealed and the following subsections

are inserted instead —

“

(5)

An appeal under this section against a decision must be commenced within 7 days after the date of the decision and before the day on which the accused’s trial is listed to start.

(6)

If an appeal under this section is commenced on or

after the day on which the accused’s trial is listed to

start, the appeal must be dismissed.

”.

35. Section 31 amended

Section 31(2) is repealed.

36. Section 33 amended

After section 33(2) the following subsection is inserted —

“

(2a)	Even if a ground of appeal might be decided in favour of the prosecutor, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

”.

37. Section 34 amended

Section 34(1) is amended by deleting “court the” and inserting

instead —

“ court, the ”.

Criminal Law and Evidence Amendment Act 2008

Part 4	Criminal Appeals Act 2004 amended
s. 38

38. Section 35A inserted

After section 35 the following section is inserted in Part 3

Division 4 —

“

35A.

Accused’s costs in some appeals to be paid by State

In an appeal commenced by a prosecutor under

section 24(2)(da) or 25(3)(aa), the accused’s reasonable

costs of being legally represented in the Court of

Appeal are to be paid by the State.

”.

39. Section 41 amended

Section 41(4) is repealed and the following subsection is

inserted instead —

“

(4)

The appeal court deciding an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the

appeal was commenced by the person or by the

prosecutor) —

(a)	may take into account any matter, including any material change to the person’s circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard; but
(b)	despite paragraph (a), must not take into account the fact that the court’s decision may mean that the person is again sentenced for the offence.

”.

Criminal Law and Evidence Amendment Act 2008

Criminal Appeals Act 2004 amended	Part 4
s. 40

40. Section 51 inserted

After section 50 the following section is inserted —

“

51. Certain amendments to be reviewed

(1)

The Minister must carry out a review of the operation

of the amendments made to this Act by the Criminal

Law and Evidence Amendment Act 2008 Part 4 as soon

as practicable after the expiration of 5 years from the

commencement of the amendments.

(2)

The Minister must prepare a report based on the review

and, as soon as practicable after the report is prepared,

cause it to be laid before each House of Parliament.

”.

Criminal Law and Evidence Amendment Act 2008

Part 5	Evidence Act 1906 amended
s. 41

Part 5 — Evidence Act 1906 amended

41. The Act amended in this Part

The amendments in this Part are to the Evidence Act 1906*.

[* Reprint 13 as at 1 July 2005.

For subsequent amendments see Western Australian

Legislation Information Tables for 2005, Table 1, p. 153, and

Act No. 34 of 2004.]

42. Section 36BE inserted and consequential amendments

(1)	After section 36BD the following section is inserted —

“

36BE.

Expert evidence of child behaviour

(1)

This section applies to any proceedings for a sexual

offence in respect of a complainant who was under the

age of 18 years at the time of the alleged offence.

(2)

Evidence by an expert on the subject of child behaviour

about any or all of the following —

(a)	child development and behaviour generally;
(b)	child development and behaviour in cases where children have been the victims of sexual offences,

that is relevant to the proceedings is admissible in them

notwithstanding that the evidence —

(c)	relates to a fact in issue or to an ultimate issue in the proceedings; or
(d)	is a matter of common knowledge; or
(e)	is relevant only to the credibility of the complainant.

Criminal Law and Evidence Amendment Act 2008

Evidence Act 1906 amended	Part 5
s. 43

(3)	If evidence described in subsection (2) is admitted in a trial by jury, this section does not affect any duty of the trial judge to warn the jury about any matter relating to the complainant’s evidence; but any such warning must be consistent with that evidence.

”.

(2)	Section 36A(1) is amended by inserting after “36BD” —
“ , 36BE ”.
(3)	Section 36A(2) is amended by deleting “and 36BC,” and inserting instead —
“ , 36BC and 36BE, ”.

43. Section 100A amended

After section 100A(7) the following subsection is inserted —

“

(8)	This section does not apply to a person who is tendered as a witness and who has a mental impairment, as that term is defined by section 8 of the Criminal Law (Mentally Impaired Accused) Act 1996.

”.

44. Section 106A amended

Section 106A is amended by inserting in the appropriate

alphabetical position —

“

“mental impairment” has the meaning given to that term by section 8 of the Criminal Law (Mentally Impaired Accused) Act 1996;

”.

Criminal Law and Evidence Amendment Act 2008

Part 5	Evidence Act 1906 amended
s. 45

45. Section 106B amended

(1)

Section 106B(1) is amended by deleting “subsection (2),” and

inserting instead —

“ subsection (3), ”.

(2)

Section 106B(2) is repealed and the following subsections are

inserted instead —

“

(2)

Irrespective of the person’s age, a person with a mental

impairment may in any proceeding, if the person is

competent under subsection (3), give evidence on oath

or after making an affirmation.

(3)

A person referred to in subsection (1) or (2) is

competent to take an oath or make an affirmation if in

the opinion of the court or person acting judicially the

person understands that —

(a)	the giving of evidence is a serious matter; and
(b)	he or she in giving evidence has an obligation to tell the truth.

”.

46. Section 106C replaced

Section 106C is repealed and the following section is inserted

instead —

“

106C.

Child under 12 and mentally impaired witness may

give unsworn evidence

A person referred to in section 106B(1) or (2) who is

not competent to give evidence under section 106B(3)

may give evidence without taking an oath or making an

affirmation if the court or person acting judicially

forms the opinion, before the evidence is given, that the

Criminal Law and Evidence Amendment Act 2008

Evidence Act 1906 amended	Part 5
s. 47

person is able to give an intelligible account of events

which he or she has observed or experienced.

”.

47. Section 106F amended

Section 106F(4) is amended by deleting “misdemeanour” and

inserting instead —

“ crime ”.

48. Section 106HA amended

(1)	After section 106HA(1) the following subsection is inserted —

“

(1a)

Section 106HB applies to a visual recording of an interview with a person with a mental impairment conducted before or after the coming into operation of

section 48 of the Criminal Law and Evidence

Amendment Act 2008 if —

(a)	the interview was conducted by a person of a prescribed class who had reason to believe that the person had, or may have, suffered physical or sexual abuse; and
(b)	the manner in which the interview was conducted and recorded meets the prescribed requirements to the prescribed extent.

”.

(2)	Section 106HA(2) is repealed and the following subsection is inserted instead —

“

(2)	Section 106HB applies to a visual recording of an interview with a person with a mental impairment, or a child, whether or not the interview was conducted with the consent of a parent or guardian of the person or child.

”.

Criminal Law and Evidence Amendment Act 2008

Part 5	Evidence Act 1906 amended
s. 49

(3)	Section 106HA(3) is amended by inserting after “child” —
“ , or a person with a mental impairment, ”.

49. Section 106HB amended

(1)	After section 106HB(1) the following subsection is inserted —

“

(1a)	A visually recorded interview with a person with a mental impairment is not to be admitted in the proceeding under subsection (1) unless the person is a special witness.

”.

(2)	After section 106HB(6) the following subsection is inserted —

“

(6a)

If a visually recorded interview of a witness is admitted

under subsection (1), then, while the recording is

played to the court, the witness must not be present in

court, or be visible or audible by closed-circuit

television or by means of any similar technology to

anyone in the court other than, in the case of a trial by

jury, the judge.

”.

(3)	After section 106HB(7) the following subsection is inserted —

“

(8)	Subsection (7)(c) does not prevent a judge from directing a jury about a breach of subsection (7)(c) by the accused or the accused’s counsel, if it is in the interests of justice to do so.

”.

Criminal Law and Evidence Amendment Act 2008

Evidence Act 1906 amended	Part 5
s. 50

50. Section 106HC amended

Section 106HC(1) is amended as follows:

(a)	after paragraph (b) by inserting —

“

(ba)

prescribing classes of persons for the purposes

of section 106HA(1a)(a) by reference to the

offices or positions held by them, or their

training or experience, or any combination of

those criteria; and

(bb)

prescribing requirements to be met for the purposes of section 106HA(1a)(b), and the extent to which they are to be met, if

section 106HB is to apply to a visual recording

of an interview with a person with a mental

impairment; and

”;

(b)	in paragraph (c) by inserting after “child” —

“ , or a person with a mental impairment, ”;

(c)	after each of paragraphs (a), (b), (c), (d), (e), (f) and (g) by inserting —

“ and ”.

51. Section 106I amended

Section 106I(2) is amended by deleting “The defendant” and

inserting instead —

“ The accused ”.

52. Section 106O amended

Section 106O(2) is amended by deleting “defendant” and

inserting instead —

“ accused ”.

Criminal Law and Evidence Amendment Act 2008

Part 5	Evidence Act 1906 amended
s. 53

53. Section 106R amended

(1)

Section 106R(3)(a) is amended by deleting “(as defined in the

Criminal Law (Mentally Impaired Accused) Act 1996)”.

(2)

After section 106R(4)(a) the following paragraph is inserted —

“

(b)	that the person have a communicator while he or she is giving evidence;

”.

(3)	After section 106R(4a) the following subsection is inserted —

“

(4b)	Where an arrangement under subsection (4)(b) is directed to be made, section 106F applies, with any necessary changes, as if the special witness were an affected child.

”.

(4)	After section 106R(7) the following subsections are inserted —

“

(8)	If in any proceeding before a jury for a serious sexual offence a person referred to in subsection (3a) does not wish to be declared to be a special witness or declines any arrangement that may be made under subsection (4) —

(a)	the person must not be questioned in the proceeding about the fact; and
(b)	neither the judge, the prosecutor, the accused nor the accused’s counsel must comment on the fact to the jury.

(9)	Subsection (8) does not prevent a judge from directing a jury about a breach of subsection (8) by the prosecutor, the accused or the accused’s counsel, if it is in the interests of justice to do so.

”.

Criminal Law and Evidence Amendment Act 2008

Evidence Act 1906 amended	Part 5
s. 54

54. Section 106RA amended

(1)	Section 106RA(1) is amended by deleting “the evidence” and inserting instead — “

the whole of the evidence (including any

cross-examination and re-examination)

”.

(2)	Section 106RA(5) is repealed and the following subsection is inserted instead —

“

(5)	If an order is made under subsection (1), the order may include —

(a)	directions as to the conduct of the special hearing;
(b)	directions, with or without conditions, as to the persons, or classes of persons, who are authorised to have possession of the visual recording of the evidence;
(c)	directions and conditions as to the giving up of possession and as to the playing, copying or erasure of the recording.

”.

55. Second Schedule amended

The Second Schedule is amended in Part 1 in the item relating

to “s. 321A” by deleting the description of offence and inserting

instead —

“ Persistent sexual conduct with child under 16 ”.

Criminal Law and Evidence Amendment Act 2008

Part 6	Other Acts amended
s. 56
Part 6 — Other Acts amended

56. Bail Act 1982 amended

(1)	The amendments in this section are to the Bail Act 1982*.
[* Reprint 5 as at 1 April 2005.

For subsequent amendments see Western Australian

Legislation Information Tables for 2005, Table 1, p. 32 and

Acts Nos. 27 and 34 of 2004 and 38 of 2005.]

(2)	Section 50C(4)(b) is amended by deleting “a defendant” and inserting instead —
“ an accused ”.
(3)	Section 50L(1) is amended by deleting “a defendant” in each place where it occurs and in each place inserting instead —
“ an accused ”.
(4)	Section 50L(1)(b) is amended by deleting “the defendant” and inserting instead —
“ the accused ”.
(5)	Section 52(4) is amended by deleting “jurisdiction.” and inserting instead — “

jurisdiction, but —

(a)	no fees shall be charged by the Supreme Court or District Court for or in respect of any act or proceeding that relates to the prosecution; and
(b)	the Supreme Court or District Court cannot order a party to the prosecution to pay another party’s costs of or relating to the prosecution, except under section 166(2) of the Criminal Procedure Act 2004.

”.

Criminal Law and Evidence Amendment Act 2008

Other Acts amended	Part 6
s. 57

(6)

Section 67(2)(b) is amended by deleting “a defendant” and

inserting instead —

“ an accused ”.

57. Children’s Court of Western Australia Act 1988 amended

(1)

The amendments in this section are to the Children’s Court of

Western Australia Act 1988*.

[* Reprint 4 as at 21 Apr 2006.]

For subsequent amendments see Act No. 27 of 2004.]

(2)

Section 33(2) is amended by deleting “complaint” and inserting

instead —

“ charge of an offence ”.

58. Community Protection (Offender Reporting) Act 2004 amended

(1)	The amendments in this section are to the Community Protection (Offender Reporting) Act 2004*.
[* Act No. 72 of 2004.]
(2)	Schedule 1 is amended in the item relating to The Criminal Code s. 321A by deleting the description of offence and inserting instead —
“ Persistent sexual conduct with child under 16 ”.

59. Criminal Injuries Compensation Act 2003 amended

(1)

The amendment in this section is to the Criminal Injuries

Compensation Act 2003*.

[* Act No. 77 of 2003.]

For subsequent amendments see Western Australian

Legislation Information Tables for 2005, Table 1, p. 112.]

Criminal Law and Evidence Amendment Act 2008

Part 6	Other Acts amended
s. 60

(2)	Section 16(1)(a) is amended by inserting after “it” —
“ or the prosecution of it is discontinued ”.

60. Criminal Law (Mentally Impaired Accused) Act 1996 amended

(1)	The amendments in this section are to the Criminal Law (Mentally Impaired Accused) Act 1996*.
[* Reprint 2 as at 12 August 2005.]
(2)	Section 11(1)(b)(ii) is amended by deleting “(including an ex officio indictment)”.
(3)	Section 21 is amended by deleting “defendant” in the 2 places where it occurs and in each place inserting instead —
“ accused ”.

61. Criminal Property Confiscation Act 2000 amended

(1)

The amendments in this section are to the Criminal Property

Confiscation Act 2000*.

[* Reprint 1 as at 9 December 2005.]

(2)

Section 101(2)(b) is amended by deleting “$250 000.” and

inserting instead —

“

the jurisdictional limit (within the meaning of

section 6 of the District Court of Western

Australia Act 1969).

”.

(3)	In the Glossary the definition of “dispose of ” is amended in paragraph (c) by deleting “offence;” and inserting instead —
“ charge or discontinue the prosecution of it; ”.

Criminal Law and Evidence Amendment Act 2008

Other Acts amended	Part 6
s. 62

62. Fertilizers Act 1977 amended

(1)	The amendments in this section are to the Fertilizers Act 1977*.
[* Reprint 1 as at 2 May 2003.

For subsequent amendments see Western Australian

Legislation Information Tables for 2005, Table 1, p. 160.]

(2)	Section 38(1) is amended by deleting “justice or other person before whom the complaint is laid,” and inserting instead —
“ person before whom the prosecution notice is signed, ”.

63. Human Reproductive Technology Act 1991 amended

(1)

The amendments in this section are to the Human Reproductive

Technology Act 1991*.

[* Reprint 2 as at11 November 2005.

For subsequent amendments see Act No. 34 of 2004.]

(2)

Section 53H(2) is amended by deleting “A defendant” and

inserting instead —

“ An accused ”.

64. Juries Act 1957 amended

(1)	The amendments in this section are to the Juries Act 1957*.
[* Reprint 4 as at 2 September 2005.

For subsequent amendments see Western Australian

Legislation Information Tables for 2005, Table 1, p. 237 and

Act No. 34 of 2004.]

(2)

Section 39 is amended by deleting “section 38.” and inserting

instead —

“ section 104(4) of the Criminal Procedure Act 2004. ”.

Criminal Law and Evidence Amendment Act 2008

Part 6	Other Acts amended
s. 65

(3)

Section 41 is amended by deleting “or when it is considering its

verdict, it is to be kept under the charge of an officer of the

court” and inserting instead —

“ , it is to be kept ”.

65. Land Valuers Licensing Act 1978 amended

(1)

The amendments in this section are to the Land Valuers

Licensing Act 1978*.

[* Reprinted as at 3 May 2002.

For subsequent amendments see Western Australian

Legislation Information Tables for 2005, Table 1, p. 245-6.]

(2)	Section 15B(2) is amended by deleting “defendant” in each place where it occurs and in each place inserting instead —
“ accused ”.

66. Licensed Surveyors Act 1909 amended

(1)	The amendments in this section are to the Licensed Surveyors Act 1909*.
[* Reprint 5 as at 5 May 2006.]
(2)	Section 8C(2) is amended by deleting “defendant” in each place where it occurs and in each place inserting instead —
“ accused ”.

67. Official Prosecutions (Accused’s Costs) Act 1973 amended

(1)	The amendments in this section are to the Official Prosecutions (Accused’s Costs) Act 1973*.
[* Reprint 3 as at 3 February 2006.]
(2)	The long title is amended by deleting “defendants” and inserting instead —
“ accused persons ”.

Criminal Law and Evidence Amendment Act 2008

Other Acts amended	Part 6
s. 68

68. Prisoners (Interstate Transfer) Act 1983 amended

(1)

The amendments in this section are to the Prisoners (Interstate

Transfer) Act 1983*.

[* Reprinted as at 6 December 2002.

For subsequent amendments see Western Australian

Legislation Information Tables for 2005, Table 1, p. 357.]

(2)	Section 21(2)(b) is deleted and the following paragraph is inserted instead —

“

(b)	the prosecution of the charge is discontinued.

”.

69. Prostitution Act 2000 amended

(1)

The amendments in this section are to the Prostitution

Act 2000*.

[* Reprint 1 as at 22 July 2005.

For subsequent amendments see Act No. 34 of 2004.]

(2)

Schedule 1 is amended by deleting “s. 321A(3)” under the

heading “The Criminal Code” and inserting instead —

“ s. 321A(4) ”.

70. Sentencing Act 1995 amended

(1)	The amendment in this section is to the Sentencing Act 1995*.
[* Reprint 4 as at 12 August 2005.

For subsequent amendments see Western Australian

Legislation Information Tables for 2005, Table 1, p. 411-12

and Act No. 27 of 2004.]

(2)	After section 40(5) the following subsection is inserted —

“

(5a)	Except where a statutory penalty is expressly provided for a body corporate, a body corporate that is convicted

Criminal Law and Evidence Amendment Act 2008

Part 6

Other Acts amended

s. 71

of an offence the statutory penalty for which is or

includes a minimum fine is liable to a fine of at least

5 times that minimum fine.

”.

71. Suitors’ Fund Act 1964 amended

(1)

The amendments in this section are to the Suitors’ Fund

Act 1964*.

[* Reprint 3 as at 22 July 2005.]

(2)

Section 14(1) is amended as follows:

(a)	by inserting after paragraph (b) —

“

(ba)	an appeal commenced by a prosecutor under section 24(2)(da) or 25(3)(aa) of the Criminal Appeals Act 2004 is upheld and a new trial is ordered; or

”;

(b)	after paragraph (a) by inserting —

“ or ”.

72. Western Australian College of Teaching Act 2004 amended

(1)

The amendments in this section are to the Western Australian

College of Teaching Act 2004*.

[* Act No. 8 of 2004.

For subsequent amendments see Western Australian

Legislation Information Tables for 2005, Table 1, p. 495.]

(2)	Section 49(1)(c) is amended as follows:

(a)	by deleting “charge is withdrawn” and inserting instead —

“ prosecution of the charge is discontinued ”;

Criminal Law and Evidence Amendment Act 2008

Other Acts amended	Part 6
s. 73

(b)	by deleting “, mistrial or presentation of nolle prosequi to a court;” and inserting instead —

“ or mistrial; ”.

(3)	Section 49(1)(d) is amended by deleting “, mistrial or presentation of nolle prosequi to a court.” and inserting instead —

“

or mistrial or the prosecution of the charge is

discontinued.

”.

(4)	Schedule 2 is amended in the item relating to The Criminal Code as follows:

(a)

by deleting the rows relating to “s. 203” and “s. 204”;

(b)

by inserting in the appropriate positions —

“

s. 187	Facilitating sexual offences against children outside Western Australia
s. 202	Obscene acts in public
s. 203	Indecent acts in public
s. 204	Indecent act with intent to offend

”.

73. Workers’ Compensation and Injury Management Act 1981 amended

(1)	The amendments in this section are to the Workers’ Compensation and Injury Management Act 1981*.
[* Reprint 7 as at 3 February 2006.]
(2)	Section 175H(2)(c) is amended by deleting “have a complaint of the alleged offence heard and determined by” and inserting instead —
“ be prosecuted for the alleged offence in ”.

Criminal Law and Evidence Amendment Act 2008

Part 6	Other Acts amended
s. 74

74. Working with Children (Criminal Record Checking) Act 2004 amended

(1)

The amendments in this section are to the Working with

Children (Criminal Record Checking) Act 2004*.

[* Act No. 65 of 2004.

For subsequent amendments see Act No. 3 of 2006.]

(2)	Schedule 1 is amended in the item relating to The Criminal Code s. 321A by deleting the description of offence and inserting instead — “

Persistent sexual conduct with child under 16 (if the offence includes a sexual act on at least one occasion when the child against whom the offence is committed is under 13)

”.

Criminal Law and Evidence Amendment Act 2008

Various amending Acts amended	Part 7
s. 75

Part 7 — Various amending Acts amended

75. Acts Amendment (Court of Appeal) Act 2004 amended

(1)	The amendments in this section are to the Acts Amendment (Court of Appeal) Act 2004*.
[* Act No. 45 of 2004.]
(2)	Section 14 is repealed.
(3)	Schedule 1 clause 7 is amended as follows:

(a)	by deleting “s. 37A”;
(b)	by deleting the row relating to “Heading to Part 3 Division 4”.

(4)	Schedule 1 clauses 22 and 23 are repealed.

76. Criminal Law Amendment (Simple Offences) Act 2004 amended

(1)

The amendment in this section is to the Criminal Law

Amendment (Simple Offences) Act 2004*.

[* Act No. 70 of 2004.]

(2)

Section 37 is repealed.

77. Courts Legislation Amendment and Repeal Act 2004 amended

(1)	The amendments in this section are to the Courts Legislation Amendment and Repeal Act 2004*.
[* Act No. 59 of 2004.]
(2)	Section 95 is amended in the Table to the section, in the row beginning with “s. 43(7)” by deleting “s. 243(6)”.
(3)	Section 123 is amended in the Table to the section by deleting “s. 67(2)”.

Criminal Law and Evidence Amendment Act 2008

Part 7	Various amending Acts amended
s. 78

(4)	Section 124 is amended in the Table to the section by deleting “s. 4(a)”.
(5)	Section 128 is amended in the Table to the section by deleting the row relating to “s. 20”.
(6)	Schedule 1 clause 13 is repealed.
(7)	Schedule 1 clause 46 is amended by deleting the row relating to “s. 11(2)”.
(8)	Schedule 1 clause 69 is repealed.
(9)	Schedule 1 clause 94 is amended by deleting the row relating to “s. 430(2)(a)”.
(10)	Schedule 1 clause 100 is repealed.
(11)	Schedule 1 clause 116 is amended by deleting “s. 93(1)”.

(12)

Schedule 1 clause 150 is amended by deleting the row relating

to “s. 116A(4)”.

(13)

Schedule 2 clauses 1 to 42 and 44 to 51 are repealed.

78. Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 amended

(1)	The amendments in this section are to the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004*.
[* Act No. 84 of 2004.]
(2)	Section 82 is amended in Table 2 as follows:

(a)	by deleting the row relating to the Gas Standards Act 1972;
(b)	by deleting the row relating to the Land Valuers Licensing Act 1978;
(c)	by deleting the row relating to the Licensed Surveyors Act 1909;

Criminal Law and Evidence Amendment Act 2008

Various amending Acts amended	Part 7
s. 78

(d)	by deleting the row relating to the Local Government (Miscellaneous Provisions) Act 1960;
(e)	by deleting the row relating to the Travel Agents Act 1985.

(3)	Schedule 1 clause 20 is amended by deleting the row relating to “s. 46(1)”.
(4)	Schedule 1 clause 25 is amended by deleting the row relating to “s. 23”.
(5)	Schedule 1 clause 27 is repealed.
(6)	Schedule 1 clause 31 is repealed.
(7)	Schedule 2 clause 36 is amended by deleting “s. 133A”.
(8)	Schedule 2 clause 56 is amended by deleting the row relating to “s. 38(1)”.
(9)	Schedule 2 clause 106 is repealed.

(10)	Schedule 2 clause 157 is amended by deleting the row relating to “s. 175H(2)(c)”.