Criminal Procedure Amendment Act 1993 (WA)
WESTERN AUSTRALIA
CRIMINAL PROCEDURE
AMENDMENT ACT 1993
No. 45 of 1993
AN ACT to amend the -
Bail Act 1982 ;
•
Child Welfare Act 1947; and
•
| • | Crime (Serious and Repeat Offenders) Sentencing Act 1992. |
[Assented to 20 December 1993.1
The Parliament of Western Australia enacts as follows
:
| No. 451 | Criminal Procedure Amendment Act 1993 |
8.1
PART 1- PRELIMINARY
Short title
1 . This Act may be cited as the Criminal Procedure Amendment
Act 1993.
Commencement
2. (1) Subject to subsection (2),this Act comes into operation on the 28th day after the day on which it receives the Royal Assent .
| (2) | Sections 7, 8, 9 and 10 (2) (b) come into operation on |
such day as is fixed by proclamation.
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S.3
PART 2 - BAIL ACT 1982
Principal Act
3. In this Part the Bail Act 1982* is referred to as the principal
| Act. |
[* Reprinted as at 17 October 1991 .
For subsequent amendments see 1992 Index to
Legislation of Western Australia, Table 1, p . 15.1
Section 3 amended
4. Section 3 (1) of the principal Act is amended by inserting
after the definition of "prosecutor" the following definition -
0(
"serious offence" means an offence described in
| Schedule | 2 ; |
Section 6 amended
5. Section 6 (4) of the principal Act is amended by inserting
after "16 (2)" the following -
| [[ | 11 |
and clause 3A of Part C of Schedule 1
Section 7 amended
6. Section 7 (5) of the principal Act is amended by inserting
after "16 (2)" the following -
11
and clause 3A of Part C of Schedule 1
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s.7
Section 11 amended
| 7. Section 11 (1) of the principal Act is | amended in |
| paragraph (e) by inserting after "14 (3)," the following | - |
| as | 17A, |
Section 17 amended
8. Section 17 (1) of the principal Act is amended by inserting
after "to do so by" the following -
as
clause 2 (3) (c) of Part C and
Section 17A inserted
After section 17 of the principal Act the following section is
9.
inserted -
as
Further provisions as to responsible person's
undertaking (Schedule 1, Part C, clause 2)
17A. (1) Where this section applies, an authorized
police officer may -
| (a) | cancel an undertaking of the kind described in clause 2 (3) (c) of Part C of Schedule 1 ; |
| (b) | approve of another person as a responsible person within the meaning in that clause ; and |
| (c) | detain the defendant or order his detention until the person so approved enters into an |
in
undertaking of the kind mentioned
paragraph (a) .
Criminal Procedure Amendment Act 1993
[No. 45
8.10
(2) Subsection (1) applies where
-
(a)
a person has entered into an undertaking referred to in paragraph (a) of that subsection ;
| (b) | a judicial officer when granting bail ordered that the person may under this section be released from the undertaking by an authorized police officer ; and |
| (c) | the person wishes to be so released . |
(3)
A police officer may, for the purpose of the exercise of the powers in subsection (1), take into custody a child defendant who has been released on bail .
(4)
If the police officer is not an authorized police officer he shall, as soon as is practicable, bring the defendant before an authorized police officer for the purpose referred to in subsection (3).
(5)
After an undertaking has been entered into as mentioned in subsection (1) (c), the defendant, subject to this Act, has a right to be at liberty until he is required to appear before a court.
11
Schedule amended
10. (1)
The Schedule to the principal Act is amended in the
heading by inserting after "SCHEDULE" the following -
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S.10
-
| (2) | Schedule 1 to the principal Act is amended in Part C |
| (a) | in clause 1 by deleting "The" and substituting the following - |
11
Subject to clause 3A, the
by repealing clause 2 and substituting the following
(b)
clause -
11
Child to have qualified right to bail
2. (1) In this clause -
"responsible person" means a parent, relative, employer or other person who, in the opinion of the judicial officer or authorized officer, is in a position to both influence the conduct of the child and provide the child with support and direction .
| (2) Subject to subclause (3), | a child |
defendant who is in custody awaiting an
an
| a | earance in court before conviction for |
once has a right to be granted bail unless -
| (a) | in the opinion of the judicial officer or authorized officer in whom jurisdiction is vested - | |||
|
or
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8.10
| (b) | thereisnoresponsibleperson willing to enter into an undertaking of the kind described in subclause (3) (c), |
and if the child is refused bail he shall be dealt with in accordance with section 33 (3) of the Child Welfare Act 1947.
(3)
The right of a child defendant under subclause (2) is subject to -
| (a) | clause 3A ; |
| (b) | section 28 (2) of the Child Welfare Act 1947; and |
| (c) | there being imp osed as a condition on the grant of bail a requirement that before the release of the child on bail a responsible person undertakes in writing in the prescribed form to ensure that the child complies with any requirement of lus bail undertaking mentioned in section 28 (2) (a), (b), (c) and (d). |
(4)
Subclauses (2) (b) and (3) (c) do not apply to a child defendant if it appears to the judicial officer or authorized officer that the defendant -
| (a) | is over the age of 17 years; and |
| (b) | hassufficientmaturitytolive independently without the guidance or control of a parent or guardian . |
(5)
For the purposes of this clause, the provisions of sections 46, 47, 48, 54, 55 (2), 60 and 67 (2) (a) (iv) apply with all necessary changes as if-
| (a) | references in those provisions to a surety and a surety undertaking were references to a responsible person and to an undertaking referred to in subclause (3) (c) respectively; and |
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s. 10
| (b) | section 54 (1) (b) (i) read as follows - |
(i) apersonwhohas entered into an undertaking referred to in subclause (3) (c) of clause 2 of Part C of Schedule 1 should no longer be regarded as a responsible person for the purposes of that clause, or is dead ;
Where a child defendant is released on
bail his right to be at liberty is subject to the
exercise of the powers in section 17A .
(6)
and
-
| (c) | by inserting after clause 3 the following clause |
11
Bail where serious offence committed while defendant on bail for another serious offence
3A. (1) Notwithstanding clause 1 or 2 or any other provision of this Act, where -
| (a) | a defendant is in custody awaiting an appearance in court before conviction for a serious offence ; and |
ed to
| (b) | have been committed w e the |
the serious offence is a serious offence or for a group of
offences which includes a serious
offence,
the judicial officer or authorized officer in whom jurisdiction is vested shall refuse to grant bail for the serious offence referred to in paragraph (a) unless he is satisfied that -
| (c) | there are exceptional reasons why the defendant should not be kept in custody; and |
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| (d) | he may properly grant bail having regard to the provisions of clauses and 3 or, in the case of a child defendant, clauses 2 and 3 . |
(2) Notwithstanding subsection (1) of section 7, where a defndant is refused bail under subclause (1) for an appearance for a serious offence his case for bail need not be considered again under that subsection for an appearance for that offence unless he satisfies the judicial officer who may order his detention that -
| (a) | new facts have been discovered, new circumstances have arisen or the circumstances have changed since bail was refused ; or |
| (b) | he failed to adequately present his case for bail on the occasion of that refusal . |
Where a child defendant is refused bail under subclause (1) he shall be dealt with in accordance with section 33 (3) of the Child Welfare Act 1947.
(3)
| (3) | Schedule 1 to the principal Act is amended in Part D in |
clause 2 -
| (a) | byinsertingaftersubclause(1)thefollowing subclause - |
fL
(la) Without limiting subclause (1), a judicial officer or authorized officer shall, on a grant of bail to a child defendant, consider whether it is desirable for any purpose mentioned in subclause (2) to impose a condition as to -
| (a) | any period in each day during which the child is to remain at a | |
| ||
| (b) | any person with whom the child is not to associate or communicate ; |
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S. 11
| (c) | any place that the child is not to frequent; |
| (d) | the attendance by the child at a school or other educational institution; or |
(e) any other matter,
and the judicial officer or authorized officer
may impose any such condition .
and
the
| (b) | in subclause (2) by inserting after "subclause (1)" following - | |
|
or (la)
Schedule 2 added
After Schedule 1 to the principal Act the following Schedule
11.
is added -
11
SCHEDULE2
[section 3 (1)]
SERIOUS OFFENCES
| Enactment | Description of offence |
1. The Criminal Code
s. 278 (as read
| with s. 282) | Wilful murder |
| s. 279 (as read | |
| with s. 282) | Murder |
| s. 280 (as read | |
| with s. 287) | Manslaughter Disabling in order to commit |
| s.292 | |
| indictable offence Acts intended to cause grievous | |
| s.294 | |
| bodily harm or to resist or prevent arrest |
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| s.296 | Intentionally endangering safety of persons travelling by railway |
| s. 296A | Intentionally endangering safety of persons travelling by aircraft |
| s. 297 | Grievous bodily harm |
| s.298 | Causing explosion likely to endanger life |
| s.299 | Attempting to cause explosion likely to endanger life |
| s.301 | Wounding and similar acts |
| s.317 | Assault occasioning bodily harm |
| s. 318 (1) (a) | Assault with intent to commit or facilitate a crime |
| s 318 (1) (b) | Assault with intent to do grievous - bodily harm |
| s. 318 (1) (g) | Assault on driver or operator of certain vehicles or ferry |
| s.323 | Indecent assault |
| s.324 | Aggravated indecent assault |
| s.325 | Sexual penetration without consent |
| s.326 | Aggravated sexual penetration without consent |
| s.332 | Kidnapping |
| s.333 | Deprivation of liberty |
| s. 378(2) | Stealing a motor vehicle, aggravated by reckless or dangerous driving |
| s. 391 (as read | |
| with s. 393) | Robbery |
| s.394 | Assault with intent to commit robbery |
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s.12
| s.401 | Burglary, if the defendant is charged on indictment |
| s.444 | Criminal damage, if the property is destroyed or damaged by fire |
2. Bush Fires Act 1954
| s.32 | Wilfully lighting a fire or causing a fire to be lit under such circumstances as to be likely to injure or damage a person or property |
3. Road Traffic Act 1974
| S.59 | Dangerous driving causing death, | |
| ||
| s. 59A | Dangerous driving causing bodily | |
|
References to "the Schedule" amended
12. The principal Act is amended by deleting "the Schedule"
wherever it occurs in the provisions referred to in the Table to
this section and substituting in each case the following -
11
| Schedule 1 | ". |
TABLE
Section 3 (1) (definition of "home detention condition")
and (4) (b)
Section 13 (1) (twice)
Section 15 (1) (b)
Section 17 (1)
Section 24 (1) (b)
Section 26 (1) (b) and (4) (b)
Section 28 (2) (c) and (d)
Section 50G (2) (b)
Section 54 (1) (b) (ii)
Section 55 (1) (e)
Section 67 (2) (b) .
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S.13
Transitional
13. (1) The amendments to the principal Act effected by a
provision of this Part apply in relation to -
| (a) | a child arrested for any offence ; and |
| (b) | a person, other than a child, arrested for a serious offence, |
on or after the day on which that provision comes into operation .
(2) In subsection (1) "child" and "serious offence" have
the same meanings as in the principal Act .
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s. 14
PART 3 - CHILD WELFARE ACT 1947
Section 34E amended
14. Section 34E (1) of the Child Welfare Act 1947* is amended by deleting "on being satisfied that any parent or guardian of the child has conduced to the commission,of the offence by neglecting to exercise due care or control of the child and" .
[* Reprinted as at 23 May 1990.
For subsequent amendments see 1992 Index to Legislation of Western Australia, Table 1, pp . 28-30 and Act No. 6 of 1993.]
| Criminal Procedure Amendment Act 1993 | [No. 45 |
s.15
PART 4 - CRIME (SERIOUS AND REPEAT OFFENDERS)
SENTENCING ACT 1992
Principal Act
15. In this Part the Crime (Serious and Repeat Offenders)
Sentencing Act 1992* is referred to as the principal Act.
[* Act No. 3 of 1992.1
Section 3 amended
16. Section 3 of the principal Act is amended by deleting
"them" and substituting the following -
this Act and that other enactment or rule of law
Section 6 amended
17. After section 6 (1) of the principal Act the following
subsections are inserted -
"
If the violent offence is an offence against
section 318 (1) (c), (d), (e) or (f) of The Criminal Code
this section does not apply .
(la)
If the violent offence is an offence against section 317 or 318 (1) (a), (b) or (g) of The Criminal Code this section does not apply unless the court sentencing the offender for the violent offence considers that, having regard to the nature of the offence and the circumstances in which it was committed, it is a serious offence .
(ib)
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Section 7 amended
| 18. | (1) | After section 7 (3) of the principal Act the following |
subsection is inserted -
[{
Detention under section 6 (2) (b) shall be reviewed by the Supreme Court on the application of the offender but no application can be made under this subsection earlier than 3 months before the prescribed day or less than 3 months after the detention was most recently reviewed under this section.
(3a)
| (2) | Section 7 (5) of the principal Act is repealed and the |
following subsection is substituted -
| (5) application under subsection (4) - | The chief executive officer shall make an |
(a) within 3 months before the prescribed day (unless a review has already been made, or is already being made, on an application under subsection (3a)) ; and
| (b) | from then on, not more than 6 months after the detention was most recently reviewed under this section (unless a review is already being made on an application under subsection (3a)). |
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S.19
| (3) | Section 7 (6) of the principal Act is amended by deleting |
"fit." and substituting the following -
11
fit,
and shall give the offender an opportunity to be heard, either personally or through a legal representative, and to present any evidence or material that the Supreme Court considers to be relevant .
Section 8 amended
19. After section 8 (1) of the principal Act the following
subsections are inserted -
If the violent offence is an offence against
section 318 (1) (c), (d), (e) or (f) of The Criminal Code
this section does not apply.
(la)
| If the violent offence is an offence against section 317 or 318 (1) (a), (b) or (g) of The Criminal Code this section does not apply unless the court sentencing the offender for the violent offence considers that, having regard to the nature of the offence and the circumstances in which it was committed, it is a serious offence . | 11 |
(ib)
Section 9 amended
20. After section 9 (3) of the principal Act the following
subsection is inserted -
Section 7 (3a) and (6) to (12) and the definition of "chief executive officer" in section 7 (1) apply to detention under section 8 (2) (a) as if repeated in this section with necessary modifications.
(3a)
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s.21
Section 12 amended
21. Section 12 (1) of the principal Act is amended by deleting
"March" and substituting the following -
11
June
Section 13 amended
| (1) | Section 13 (1) of the principal Act is amended by |
22.
deleting "report to" and substituting the following -
11 »
cause reports to be laid before each House of
| (2) | Section 13 (2) of the principal Act is repealed and the |
following subsections are substituted -
11
If, because either House of Parliament is not sitting, a report cannot be laid before that House within the time prescribed by subsection (1), the Minister may comply with the requirement to lay the report before that House by -
(2)
| (a) | giving a copy of the report to the Clerk of that House within that time; and |
| (b) | immediately causing thereport to be printed and made available to the public . |
A copy of a report given to the Clerk of a
House under subsection (2) is to be laid before that
House on its next sitting day.
(3)
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s.23
Section 14 amended
23. Section 14 (2) of the principal Act is amended -
|
11
or in proceedings referred to in
paragraph (d)
"
| (b) | in paragraph (c) by deleting "expiry." and substituting the following - |
11
expiry or in proceedings referred to in
paragraph (d);
and
| (c) | by inserting after paragraph(c) thefollowing paragraph - |
11
| (d) | it continues to apply to proceedings in which a sentence or direction may be imposed or given in respect of an offence of which a person was convicted before the expiry . |
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s. 24
Schedule 2 amended
Clause 1 of Schedule 2 to the principal Act is repealed
24. (1)
and the following clause is substituted -
1(
Criteria for deciding whether a person is a repeat offender
1. (1) In this Act a person ("the offender") convicted of a prescribed offence (`the offence") is a repeat offender if it is proved to the satisfaction of the court sentencing the offender for the offence that the offender has -
| (a) | 6 or more convictions for prescribed offences of any kind ; or |
| (b) | 3 or more convictions for violent offences, |
during the period of 18 months immediately preceding the
commission of the offence .
For the purposes of subclause (1), if it is proved to the satisfaction of the court that in respect of 2 or more convictions for prescribed offences the prescribed offences -
(2)
| (a) | were committed within a period 24 hours ; and |
| (b) | arose out of one set of facts, |
those convictions shall be regarded as one conviction and, if any of them was a conviction for a violent offence, they shall be regarded as one conviction for a violent offence .
| (2) | Clauses 3 and 4 of Schedule 2 to the principal Act are |
repealed and the following clause is substituted -
11
Convictions considered
A conviction for an offence is to be counted for
3.
the purposes of clause 1 (a) and (b) whether the offence was
committed before or after the commencement of this Act.
(1)
A conviction that has been set aside or quashed is not to be counted for the purposes of clause 1 (a) or (b).
(2)
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s.24
A conviction for an offence against section 318 (1) (c), (d), (e) or (f) of The Criminal Code is not to be counted for the purposes of clause 1 (a) or (b) if the conviction occurred after the commencement of the Criminal Procedure Amendment Act 1993 .
(3)
If a conviction for an offence against section 317 or 318 (1) (a), (b) or (g) of The Criminal Code occurred after the commencement of the Criminal Procedure Amendment Act 1993, the conviction is not to be counted for the purposes of clause 1 (a) or (b) unless the court in which the conviction occurred, having regard to the nature of the offence and the circumstances in which it was committed, has directed that it be treated as a conviction for those purposes.
(4)
In this Schedule "conviction" includes a finding or admission of guilt which led to a punishment being imposed on the offender, or an order being made in respect of the offender, whether or not a conviction was recorded .
(5)
0
0
0