Untitled document

Crimes (Questioning of Suspects) Act 2000

Act No. 86/2000

TABLE OF PROVISIONS

Section Page

1.	Purpose	1
2.	Commencement	1
3.	Principal Act	2
4.	Questioning or investigation of person already held for another
matter	2
5.	Right to communicate with friend, relative and legal practitioner	9
6.	Video-recording of confessions and admissions	9
7.	New section 593A inserted in Principal Act	10
593A. Transitional provision—Crimes (Questioning of

Suspects) Act 2000 10

8. Consequential amendments 10

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ENDNOTES 11

i

Victoria

No. 86 of 2000

Crimes (Questioning of Suspects) Act

2000†

[Assented to 5 December 2000]

The Parliament of Victoria enacts as follows:

1. Purpose

The main purpose of this Act is to amend the Crimes Act 1958 so as to make further provision for the questioning or investigation of certain persons who are suspected of having committed an offence.

2. Commencement

This Act comes into operation on the day after the day on which it receives the Royal Assent.

Crimes (Questioning of Suspects) Act 2000

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3. Principal Act

See:

Act No. 6231.	In this Act, the Crimes Act 1958 is called the
Reprint No. 15	Principal Act.
as at 1 September 1999 and amending Act No. 26/1999. LawToday: dpc.vic. gov. au

4.  Questioning or investigation of person already held for another matter

(1) In section 464B(1) of the Principal Act—

(a) omit "under the age of 17 years";

(b) for paragraph (a) substitute— "(a) who is—

(i) held in a prison or police gaol; or

(ii) resident within the meaning of the

a forensic resident or a security Services Act 1986; or

(iii) a forensic patient or a security patient within the meaning of the Mental Health Act 1986; or

(iv) Sentencing Act 1991 in an
approved mental health service
within the meaning of the Mental
Health Act 1986 as an
involuntary patient or security

detained under section 93 of the Act; and";

(c) in paragraph (b), after "an offence" insert "(being, in the case of an application in respect of a child, an indictable offence)".

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(2) In section 464B(2)(c) of the Principal Act—

(a)	for "being held" substitute "who is the subject of the application";
(b)	for sub-paragraph (ii) substitute— "(ii) to the person in charge of the place

where the person is being held or
detained.".

(3) In section 464B(3) of the Principal Act, for "being held in a prison or police gaol" substitute "who is the subject of the application".

(4) In section 464B of the Principal Act, for sub-

section (5) substitute—

"(4A) The Magistrates' Court or the Children's

Court (as the case may be) must not hear or determine an application under sub-section (1) unless the person who is the subject of the application is before the Court.

(4B) If the person who is the subject of an

application under sub-section (1) is not
legally represented in a proceeding on the
application, the Magistrates' Court or the

Children's Court (as the case may be)—

(a)	must adjourn the hearing of the proceeding to enable the person to obtain legal representation unless satisfied that the person has had, or has refused to have, legal advice provided to him or her in relation to the application; and
(b)	must not resume the hearing unless the person is legally represented or the Court is satisfied that he or she has had, or has refused to have, legal advice provided to him or her in relation to the application.

Crimes (Questioning of Suspects) Act 2000

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(4C) The Magistrates' Court or the Children's

Court (as the case may be) may order Victoria Legal Aid to provide legal assistance (of a kind to which section 26(1) of the Legal Aid Act 1978 applies) to the person who is the subject of an application under sub-section (1) and, despite anything to the contrary in that Act, Victoria Legal Aid must provide legal assistance in accordance with the order.

(5) On an application under sub-section (1), the

Magistrates' Court or the Children's Court
(as the case may be) may, if satisfied that it
is in the interests of justice to do so but
subject to sub-section (5C), order the transfer
of the custody of the person who is the
subject of the application to the applicant for
the purpose of questioning or investigation
for a maximum period of time specified in
the order, being a reasonable period within
which the questioning or investigation may
take place.

(5A) In determining what constitutes a reasonable

sub-section (5), the Magistrates' Court or the

period for the purposes of an order under have regard to—

(a)

the matters specified in section modifications; and

(b) if the person is a child, his or her age.

(5B) The Magistrates' Court or the Children's

Court (as the case may be), on making an order under sub-section (5), may make any further order that it thinks fit as to where,

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Act No. 86/2000 s. 4

and the circumstances under which, the
questioning or investigation may take place
but it must not order that the questioning or
investigation take place somewhere other
than the place at which the person who is the
subject of the order was held or detained at
the time of the application for the order
under sub-section (5) unless it is not
practicable for the questioning or

investigation to take place there.

(5C) The Magistrates' Court or the Children's

Court (as the case may be) must not make an order under sub-section (5) in respect of a person referred to in sub-section (1)(a)(ii), (iii) or (iv) unless—

(a)

having considered any known likely on the person; and

(b) having received evidence (whether oral or written) on the fitness of the person to be questioned given by a medical practitioner—

it is satisfied on the balance of probabilities

that the person is fit to be questioned.

(5D) A person is unfit to be questioned for the

purposes of sub-section (5C) if, because the person's mental processes are disordered or impaired, the person is or, at some time

during the questioning, will be—

(a) unable to understand the nature of the questioning (namely that it is questioning to ascertain his or her involvement in the commission of an offence); or

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(b)	unable to follow the course of questioning; or
(c)	unable to give instructions to his or her legal practitioner; or
(d)	unable to understand that he or she does not have to say or do anything but that anything he or she does say or do may be given in evidence.

(5E) On making an order under sub-section (5) in respect of a person referred to in sub-section (1)(a)(ii), (iii) or (iv), the Magistrates' Court or the Children's Court (as the case may

be)—

(a)	must include in that order a condition that—
(i)	independent person is to be present while any questioning or

subject to sub-section (5F), an accordance with the order; and

(ii) questioning or investigation, the
investigating official must allow
the person to communicate with
the independent person in
circumstances in which as far as

before the commencement of any will not be overheard; and

(b) may include in that order any other condition that it thinks fit in the interests of the well-being of the person during any questioning or investigation.

(5F) The Magistrates' Court or the Children's

Court (as the case may be) is not required to include in an order under sub-section (5) a

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condition referred to in sub-section (5E)(a)(i)
if the person who is the subject of the order
applies to the Court for that condition not to
be included and the Court is satisfied that, in
all the circumstances, it is appropriate not to

include it.

(5G) On making an order under sub-section (5),	the Magistrates' Court or the Children's person who is the subject of the order—
(a)	that he or she does not have to say or do anything but that anything he or she does say or do may be given in evidence; and
(b)	that the investigating official must give him or her the information required to be given by sub-section (6) and section 464C(1).

(5H) The following must be video-recorded—

(a)	the giving of any information required to be given by sub-section (6) and section 464C(1);
(b)	any response of the person in custody to the giving of that information;
(c)	any questioning that takes place in accordance with an order made under sub-section (5) and anything said by the person questioned.".

(5) In section 464B(6) of the Principal Act, for "in custody" substitute "who is the subject of the order".

(6) In section 464B(8) of the Principal Act—

(a) for "with the consent of the person held" substitute "subject to sub-section (8A)";

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(b) in paragraph (b), omit "held".

(7) In section 464B of the Principal Act, after sub-

section (8) insert—

"(8A) The Magistrates' Court or the Children's

Court (as the case may be) must not extend a period of custody ordered under sub-section (5) or, on a subsequent application under
sub-section (1), make an order against the
same person in respect of the same offence
unless satisfied that there is a reasonable
prospect that further questioning or
investigation will assist in determining the
involvement (if any) of the person in the

commission of the offence.

(8B) In determining the length of any extension of

section (5), the Magistrates' Court or the

a period of custody ordered under sub- have regard to—

(a)

the matters specified in section modifications; and

(b) if the person is a child, his or her age.".

(8) In section 464B(9) of the Principal Act—

(a) for "in custody" substitute "who is the subject of the order";

(b) after "held" insert "or detained".

(9) In section 464B of the Principal Act, after sub-

section (9) insert—
'(10) In this section—

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Act No. 86/2000 s. 5

"child", in relation to a person suspected of having committed an offence, means a person who at the time of the suspected commission of the offence was under

the age of 17 years but does not include
any person who is of or above the age
of 18 years at the time of the making of
an application in respect of him or her
under this section.'.

5.  Right to communicate with friend, relative and legal practitioner

In section 464C(3) of the Principal Act, omit

"(except sub-section (1)(a))".

6. Video-recording of confessions and admissions

(1) In section 464H(1) of the Principal Act—

(a)	in paragraph (e) for "tape-recorded—" substitute "tape-recorded; or";
(b)	after paragraph (e) insert— "(f) if the confession or admission was

made during questioning in accordance
with an order made under section
464B(5), the questioning and anything
said by the person was video-

recorded—";

(c) after "the tape-recording" insert "or video- recording".

(2) In section 464H(3) of the Principal Act—

(a)	for "section 464G" substitute "section 464B(5H) or 464G";
(b)	in paragraphs (a) and (b), after "tape- recording" insert "or video-recording".

(3) In section 464H(4) of the Principal Act, after
"tape-recording" insert "or video-recording".

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7. New section 593A inserted in Principal Act

After section 593 of the Principal Act insert—

"593A. Transitional provision—Crimes

(Questioning of Suspects) Act 2000

The amendments of this Act made by the
Crimes (Questioning of Suspects) Act
2000 applies to any person who is, at any
time on or after the commencement of that
Act, a person of a kind referred to in
section 464B(1)(a), irrespective of when the
offence to which the questioning or
investigation relates was committed or

alleged to have been committed.".

8. Consequential amendments

(1) In section 464G of the Principal Act, at the end of

the section insert—
"(2) Sub-section (1) is subject to section

464B(5H).".

(2) In section 464I of the Principal Act, after "464H"

insert "(except as provided by an order made

under section 464B(5))".

(3) In section 41 of the Corrections Act 1986, after

sub-section (5) insert—
"(6) Nothing in this section applies to any

questioning or investigation by a member of the police force in accordance with an order made under section 464B(5) of the Crimes Act 1958.".

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Crimes (Questioning of Suspects) Act 2000

Act No. 86/2000 Endnotes

ENDNOTES

†

Minister's second reading speech—

Legislative Assembly: 23 November 2000

Legislative Council: 28 November 2000

The long title for the Bill for this Act was "to amend the Crimes Act
1958 so as to make further provision for the questioning or investigation
of certain persons who are suspected of having committed an offence, to
amend the Corrections Act 1986 and for other purposes."