2008

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

Part 1.1 Confiscation of Criminal Assets Act 2003 3

Part 1.2 Corrections Management Act 2007 9

Part 1.3 Crimes Act 1900 9

Part 1.4 Crimes (Forensic Procedures) Act 2000 18

Part 1.5 Crimes (Sentencing) Act 2005 18

Part 1.6 Criminal Code 2002 19

Part 1.7 Domestic Violence and Protection Orders Act 2001 19

Part 1.8 Domestic Violence and Protection Orders Act 2008 20

Part 1.9 Evidence (Miscellaneous Provisions) Act 1991 20

Part 1.10 Legislation Act 2001 22

Part 1.11 Magistrates Court Act 1930 22

Part 1.12 Prostitution Act 1992 34

Part 1.13 Supreme Court Act 1933 34

Part 1.14 Witness Protection Act 1996 36

2008

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

An Act to amend legislation in relation to criminal proceedings

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Crimes Legislation Amendment Act 2008.

(1) This Act commences on a day fixed by the Minister by written notice.

Note 1 The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

Note 2 A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

(2) If this Act has not commenced within 9 months beginning on its notification day, it automatically commences on the first day after that period.

(3) The Legislation Act, section 79 (Automatic commencement of postponed law) does not apply to this Act.

This Act amends the legislation mentioned in schedule 1.

• indictable offence—see s 13 (2)

• ordinary indictable offence—see s 13 (2)

• ordinary offence—see s 13 (2)

• relevant offence—see s 13 (2)

(2) In this Act:

ordinary offence means a relevant offence other than a serious offence.

relevant offence—

(a) means an offence punishable by imprisonment for longer than 12 months; and

(b) includes an offence (however described) against the law of the Commonwealth, a State or another Territory that may be dealt with under a law of the Commonwealth, the State or the other Territory as an indictable offence (or in a way corresponding to the way in which an indictable offence against an ACT law may be dealt with), even if it may also be dealt with as a summary offence (however described) in some circumstances.

Note An offence against an ACT law is an indictable offence if it is punishable by imprisonment for longer than 2 years, or is declared by law to be an indictable offence (see Legislation Act, s 190 (1)).

serious offence means—

(a) an offence punishable by imprisonment for 5 years or longer; or

(b) any other offence prescribed by regulation.

• indictable offence

ordinary offence—see section 13 (2).

relevant offence—see section 13 (2).

indictable offences against ACT laws.

offences against ACT laws punishable by imprisonment for longer than 12 months.

(Assault with intent to commit indictable offence)

(Assault with intent to commit other offence)

an indictable offence

an offence punishable by imprisonment for longer than 12 months

evidential material means a thing relevant to an offence, including a thing in electronic form.

serious offence means an offence punishable by imprisonment for longer than 12 months.

thing relevant to an offence means—

(a) anything in relation to which the offence has been committed or is suspected on reasonable grounds to have been committed; or

(b) anything suspected on reasonable grounds to provide evidence of the commission of the offence; or

(c) anything suspected on reasonable grounds to be intended to be used for the purpose of committing the offence.

(1) The Commonwealth Crimes Act, part 1C (Investigation of Commonwealth offences) and the schedule (Form of explanation under section 23V) apply to offences not punishable by imprisonment, or punishable by imprisonment for 12 months or less, in the same way as they apply to offences punishable by imprisonment for longer than 12 months.

Note The Cwlth Crimes Act provisions apply to offences against ACT laws that are punishable by imprisonment for longer than 12 months if the investigating officer is a police officer (see that Act, s 23A (6)).

a summary offence:

an offence not punishable by imprisonment, or punishable by imprisonment for 12 months or less:

an indictable offence

a serious offence

indictable offence

serious offence

an indictable offence

a serious offence

an indictable offence

a serious offence

an indictable offence

a serious offence

(b) the offence is a relevant offence; and

relevant offence means—

(a) a serious offence; or

(b) an offence against any of the following:

(i) section 380 (Possession of offensive weapons and disabling substances);

(ii) section 381 (Possession of offensive weapons and disabling substances with intent);

(iii) the Criminal Code, section 321 (Minor theft);

(iv) the Road Transport (Alcohol and Drugs) Act 1977, section 19 (Prescribed blood alcohol concentration exceeded).

indictable offence

offence punishable by imprisonment for longer than 12 months

(a) an offence involving actual or threatened violence and punishable by imprisonment for longer than 12 months; or

(c) an offence against the Criminal Code, section 310 (Aggravated robbery) or section 312 (Aggravated burglary).

$10 000

$30 000

(6A) When the court is satisfied the case is ready to be listed for hearing, the court must ask the defendant whether the defendant consents to the case being disposed of summarily.

(c) the defendant consented to the case being disposed of summarily and the consent has not been withdrawn under section 375A; and

(d) if the charge is for an offence against the Criminal Code, section 310 or section 312—the prosecutor also consents to the case being disposed of summarily.

(c) the defendant consents to the case being disposed of summarily and the consent is not withdrawn under section 375A; and

(d) if the charge is for an offence against the Criminal Code, section 310 or section 312—the prosecutor also consents to the case being disposed of summarily.

(b) the defendant’s consent to the case being disposed of summarily has been withdrawn under section 375A;

(11A) If the Magistrates Court disposes of a case summarily under this section and convicts the defendant of the offence, the court must not impose a penalty that exceeds—

(a) a fine of $15 000, imprisonment for 5 years or both; or

(b) if the maximum penalty provided for the offence by the law creating it is less than the penalty mentioned in paragraph (a)—the maximum penalty.

If the court

If the Childrens Court

(1) A consent given by a defendant under section 375 (6A) to summary disposal of a case can be withdrawn only if the court grants leave under this section.

(2) The defendant may apply to the court for leave to withdraw the consent.

(3) However, an application may not be made if a prosecution witness has given evidence in person at the hearing.

(4) The court may grant leave only if satisfied on reasonable grounds that—

(a) a significant change in relation to the defendant or the case happened after the consent was given; and

(b) granting the leave is justified in all the circumstances.

1 the defendant changed his or her legal representative before the start of the hearing

2 the prosecution provided new evidence before the start of the hearing.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

The amendments of part 17 (Offences punishable summarily and summary procedure generally) made by the Crimes Legislation Amendment Act 2008 do not apply to a proceeding for an offence if the hearing in the proceeding has started before the amendments commence.

(1) A regulation may prescribe transitional matters necessary or convenient to be prescribed because of the enactment of the Crimes Legislation Amendment Act 2008.

(2) A regulation may modify this part (including in relation to another territory law) to make provision in relation to anything that, in the Executive’s opinion, is not, or is not adequately or appropriately, dealt with in this part.

(3) A regulation under subsection (2) has effect despite anything else in this Act or another territory law.

This part expires 1 year after the day it commences.

(a) an offence against a territory law punishable by imprisonment for longer than 12 months; or

(b) an offence against any of the following provisions of the Crimes Act 1900;

(i) section 25 (Causing grievous bodily harm);

(ii) section 26 (Common assault);

(iii) section 35 (Stalking);

(iv) section 39 (Neglect etc of children);

(v) section 47 (Concealment of birth); or

punishable by imprisonment for longer than 1 year

punishable by imprisonment for longer than 2 years

committal proceeding

committal hearing

Note A complainant is not required to attend and give evidence at a committal hearing in relation to a sexual offence (see Magistrates Court Act 1930, s 90AB (1) (a)).

committal proceeding

committal hearing

committal proceeding

committal hearing

Note A complainant is not required to attend and give evidence at a committal hearing in relation to a sexual offence (see Magistrates Court Act 1930, s 90AB (1) (a)).

committal proceeding

committal hearing

(1) An offence is an indictable offence if—

(a) it is punishable by imprisonment for longer than 2 years; or

(b) it is declared by an ACT law to be an indictable offence.

the taking of the preliminary examination,

the committal hearing,

preliminary examination

committal hearing

(c) setting out the terms of this section, section 90AA and section 90AB.

(b) a list of the people who have made written statements that the prosecution proposes to tender to the court at the committal hearing; and

(d) a list of the documents and things (if any) mentioned in the statements that the prosecution proposes to tender to the court at the committal hearing; and

preliminary examination

committal hearing

the taking of the preliminary examination,

the committal hearing,

(1) The court must not require a witness to be called for cross-examination at a committal hearing if—

(a) the hearing relates to a sexual offence (whether or not it relates also to another offence); and

(b) the witness is a complainant in relation to the sexual offence.

(2) The court must not require any other witness to be called for cross-examination at a committal hearing unless, on application by the party seeking to cross-examine the witness, the court is satisfied that—

(a) the party has—

(i) identified an issue to which the proposed questioning relates; and

(ii) provided a reason why the evidence of the witness is relevant to the issue; and

(iii) explained why the evidence disclosed by the prosecution does not address the issue; and

(iv) identified to the court the purpose and general nature of the questions to be put to the witness to address the issue; and

(b) the interests of justice cannot adequately be satisfied by leaving cross-examination of the witness about the issue to the trial.

(3) In this section:

sexual offence means an offence against the Crimes Act 1900, part 3 (Sexual offences), part 4 (Female genital mutilation) or part 5 (Sexual servitude).

The accused person is not required to be present at the committal hearing if the person is excused from attending the hearing under section 89A.

the court must charge

When all the evidence offered by the prosecution in relation to the indictable offence with which the accused person is charged has been taken,

(a) if the court is of the opinion, having regard to all the evidence before it, that there is a reasonable prospect that the person would be convicted of the offence—commit the person for trial for the offence; or

(b) otherwise—if the person is in custody in relation to the offence, immediately order that the person be released from custody in relation to the offence.

(a) in a proceeding under this part, the court is of the opinion, having regard to all the evidence before it, that there is no reasonable prospect that the person would be convicted of the offence; or

(1A) However, the court may proceed under subsection (1) (a) only if satisfied on reasonable grounds that the defendant—

(a) knows the hearing date; and

(b) understands that the court can proceed to hear and decide the case in the defendant’s absence if the defendant fails to appear; and

(c) has decided not to appear at the hearing.

(c) review appeals under division 3.10.3 (Review appeals in criminal matters).

(1) A person is not entitled to appeal to the Supreme Court under this division against a decision of the Magistrates Court if the person has instituted an appeal against the decision under division 3.10.3 (Review appeals in criminal matters).

(2) If a person institutes an appeal under division 3.10.3 in relation to a decision of the Magistrates Court, any appeal against the decision that has been instituted under this division is taken to be withdrawn.

in accordance with this division

Each of the following is a decision of the Magistrates Court from which an appeal by way of review (a review appeal) may be made

(1) A review appeal must be instituted by the appellant filing a notice of appeal in the Supreme Court within 28 days after the day the conviction was entered, the order or decision was made or the sentence or penalty imposed, or within any further time the Supreme Court allows.

(2) As soon as practicable after instituting the appeal, the appellant must—

(a) file a copy of the notice of appeal in the Magistrates Court; and

(b) serve a copy of the notice of appeal on—

(i) for an appeal mentioned in section 219B (1) (b) or (c)—the director of public prosecutions; and

(ii) for any other appeal—the person who was the defendant in the proceeding in the Magistrates Court.

The Supreme Court may review a decision of the Magistrates Court under this division on any 1 or more of the following grounds:

(a) that there was a prima facie case of error or mistake on the part of the Magistrates Court;

(b) that the Magistrates Court did not have jurisdiction or authority to make the decision;

(c) that the decision of the Magistrates Court should not in law have been made;

(d) for a decision mentioned in section 219B (1) (d) or (e)—that, in the circumstances of the case, the decision should not have been made;

(e) for a decision mentioned in section 219B (1) (f)—that the sentence or penalty was manifestly inadequate or otherwise in error.

On a review appeal, the Supreme Court may, if it considers appropriate, make an order requiring the magistrate by whom the Magistrates Court was constituted to give to the Supreme Court a report setting out the reasons for the decision of the Magistrates Court and any facts or matters that in the view of the magistrate were relevant to the decision of the Magistrates Court.

(1) On a review appeal, the Supreme Court may, after considering the evidence before the Magistrates Court and any further evidence called by leave of the Supreme Court—

(a) dismiss the appeal if satisfied that the decision of the Magistrates Court should be confirmed; or

(b) set aside or quash, in whole or part, or otherwise vary or amend, the decision of the Magistrates Court.

preliminary examination

committal hearing

(5) The Supreme Court may, despite the ground or any of the grounds for review mentioned in section 219D being established, dismiss the appeal if the court considers that no substantial miscarriage of justice has happened.

(6) On the dismissal of an appeal, the decision of the Magistrates Court appealed from may be enforced, executed or given effect to as if the appeal had not been instituted.

(9) Subsection (8) applies whether the Supreme Court dismisses the appeal or exercises any of the other powers given to it by this section.

(1) The power of the court to award costs is subject to the following:

(a) if the court makes a conviction or order in favour of the informant—it may order that the defendant must pay to the informant the informant’s costs;

(b) if the court dismisses the information, or makes an order in favour of the defendant—it may order that the informant must pay to the defendant the defendant’s costs;

(c) if a matter is adjourned—the court may order that the costs of and caused by the adjournment be paid by any party to any other party;

(d) costs ordered to be paid—

(i) must be awarded in the way prescribed by regulation; and

(ii) may be recovered under the rules about the enforcement of judgments of the court in civil proceedings.

(2) Subject to any order of the court, the expenses of a person who attends at court to give evidence or to produce documents must be allowed to the person (whether or not they have been examined or produced documents and whether or not they were subpoenaed to attend).

(2) Section 288 does not apply to the committal hearing for an indictable offence alleged to have been committed jointly by a child and an adult if a magistrate, having regard to the nature of the alleged offence and the time and expense involved in carrying out the committal hearings separately, orders that the section does not apply.

(1) In this section:

commencement day means the day the Crimes Legislation Amendment Act 2008, part 1.10 (Legislation Act 2001) commences.

(2) This section applies if, before the commencement day—

(a) a person has been committed to the Supreme Court under this Act in relation to an offence punishable by imprisonment for longer than 1 year but not longer than 2 years; and

(b) the matter has not been finally decided.

(3) The Supreme Court may deal with the matter as if the offence were still an indictable offence.

(1) The amendments of the following provisions made by the Crimes Legislation Amendment Act 2008 do not apply to a proceeding for an offence if the hearing in the proceeding has started before the amendments commence:

(a) section 90AA;

(b) section 90AB;

(c) section 90ABA;

(d) section 92;

(e) section 94;

(f) section 97;

(g) section 110.

(2) The amendments of part 3.10 (Criminal appeals) made by the Crimes Legislation Amendment Act 2008 do not apply to a proceeding on an appeal if the proceeding has started before the amendments commence.

(1) A regulation may prescribe transitional matters necessary or convenient to be prescribed because of the enactment of the Crimes Legislation Amendment Act 2008.

(2) A regulation may modify this chapter (including in relation to another territory law) to make provision in relation to anything that, in the Executive’s opinion, is not, or is not adequately or appropriately, dealt with in this chapter.

(3) A regulation under subsection (2) has effect despite anything else in this Act or another territory law.

This chapter expires 1 year after the day it commences.

review appeal, for division 1.10.3 (Review appeals in criminal matters)—see section 219B (1).

preliminary examination

committal hearing

(b) if the witness gave evidence in person at the committal hearing, the accused person or the accused person’s lawyer had the opportunity to cross-examine the witness;

(1) In this section:

commencement day means the day the Crimes Legislation Amendment Act 2008, part 1.10 (Legislation Act 2001) commences.

(2) This section applies if, before the commencement day, a proceeding had been commenced but not finally decided in the Supreme Court in relation to an offence punishable by imprisonment for longer than 1 year but not longer than 2 years.

(3) The Supreme Court may deal with the matter as if the offence were still an indictable offence.

(1) A regulation may prescribe transitional matters necessary or convenient to be prescribed because of the enactment of the Crimes Legislation Amendment Act 2008.

(2) A regulation may modify this part (including in relation to another territory law) to make provision in relation to anything that, in the Executive’s opinion, is not, or is not adequately or appropriately, dealt with in this part.

(3) A regulation under subsection (2) has effect despite anything else in this Act or another territory law.

This part expires 1 year after the day it commences.

(i) was a witness to or has knowledge of an offence punishable by imprisonment for longer than 12 months and is or has been a witness in a criminal proceeding relating to the offence; or

Presentation speech made in the Legislative Assembly on 2008.

Notified under the Legislation Act on 2008.

For the latest republication of amended laws, see www.legislation.act.gov.au.