2009

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

Part 1.1 Bail Act 1992 3

Part 1.2 Court Procedures Act 2004 4

Part 1.3 Crimes Act 1900 4

Part 1.4 Crimes (Sentence Administration) Act 2005 5

Part 1.5 Crimes (Sentencing) Act 2005 7

Part 1.6 Criminal Code 2002 8

Part 1.7 Criminal Code Regulation 2005 8

Part 1.8 Evidence (Miscellaneous Provisions) Act 1991 8

Part 1.9 Magistrates Court Act 1930 15

Part 1.10 Supreme Court Act 1933 18

2009

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 2009.

This Act commences on the day after its notification day.

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

This Act amends the legislation mentioned in schedule 1.

The following regulations are repealed:

• Crimes (Transitional Provisions) Regulation 2009 (SL2009-21)

• Magistrates Court (Transitional Provisions) Regulation 2009 (SL2009-20).

chief executive means—

(a) if section 25A applies in relation to the accused person—the responsible chief executive decided under that section; or

(b) in any other case—the chief executive responsible for this Act.

(3) If the responsible chief executive for matters relating to the supervision of an accused person is the chief executive responsible for the Children and Young People Act 2008, the accused person must be supervised as a person under 18 years old.

(4) If the responsible chief executive for matters relating to the supervision of an accused person is the chief executive responsible for this Act, the accused person must be supervised as an adult.

the offence

an offence

victim, of an offence—see the Crimes (Sentencing) Act 2005, section 47.

victim, of an offence—see the Crimes (Sentencing) Act 2005, section 47.

(2) That part, as in force immediately before the amendments commence, continues to apply to the proceeding.

(3) For subsection (1), the hearing in a proceeding for an offence has started if—

(a) the defendant has pleaded guilty to the charge and the court has accepted the plea; or

(b) the defendant has pleaded not guilty to the charge, or is taken to have pleaded not guilty to the charge under section 375 (6) and the court has begun to take oral or written evidence in the proceeding (other than in relation to bail or any other interlocutory matter).

(other than a young offender)

(3) In this section:

offender—

(a) includes a young offender for whom the chief executive responsible for this Act is responsible in accordance with a decision under section 320F; but

(b) does not include any other young offender.

(other than a young offender)

(3) In this section:

offender—

(a) includes a young offender for whom the chief executive responsible for this Act is responsible in accordance with a decision under section 320F; but

(b) does not include any other young offender.

(4) In this section:

offender—

(a) includes a young offender for whom the chief executive responsible for this Act is responsible in accordance with a decision under section 320F; but

(b) does not include any other young offender.

Note For other young offenders, see s 320G (Young offenders—breach of good behaviour obligations).

(2) The chief executive responsible for this Act and the chief executive responsible for the Children and Young People Act 2008 must decide which of them is to be the administering chief executive for the person.

(3) If the administering chief executive is the chief executive responsible for this Act, the person is dealt with under this Act in the same way as an adult offender.

(4) If the administering chief executive is the chief executive responsible for the Children and Young People Act 2008, the person continues to be dealt with under this Act as a young offender.

young offender does not include a young offender for whom the chief executive responsible for this Act is responsible in accordance with a decision under section 320F.

Note Section 102 (Corrections officers to report breach of good behaviour obligations) applies to these young offenders (see s 102 (4)).

Note An education and training condition must not be included in the order unless the young offender is convicted or found guilty of the offence (see s 133P).

1 July 2009

1 July 2013

disability

vulnerability

(1) This section applies to the complainant or a similar act witness (the witness) giving evidence in—

(a) a sexual offence proceeding; or

(b) a violent offence proceeding in relation to a serious violent offence; or

(c) a violent offence proceeding in relation to a less serious violent offence if—

(i) the witness is a relevant person in relation to the accused person; or

(ii) the court considers that the witness has a vulnerability that affects the witness’s ability to give evidence because of the circumstances of the proceeding or the witness’s circumstances.

1 the witness is likely to suffer severe emotional trauma because of the nature of the alleged offence

2 the witness is intimidated or distressed because of the witness’s relationship to the accused person

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).

(2) This section also applies to a child or witness with a disability (the witness) giving evidence for the prosecution in a sexual or violent offence proceeding.

(3) The witness must not be examined personally by the accused person but may be examined instead by—

(a) the accused person’s legal representative; or

(b) if the accused person does not have a legal representative—a person appointed by the court.

(4) If the accused person does not have a legal representative, the court must, as soon as practicable, tell the person—

(a) about the terms of subsection (3); and

(b) that the person may not adduce evidence from another witness in relation to a fact in issue to contradict the evidence of the witness in relation to the fact if the fact in the other witness’s evidence intended to contradict the witness’s evidence has not been put to the witness in cross-examination.

(5) A person appointed by the court for subsection (3) (b) may ask the witness only the questions that the accused person asks the person to put to the witness, and must not independently give the accused person legal or other advice.

Note 1 If the court considers a question to be harassing, intimidating etc, the court must disallow it or tell the witness that it need not be answered (see Evidence Act 1995 (Cwlth), s 41 (Improper questions)).

Note 2 If the court considers a question to be indecent or scandalous, the court may disallow it unless the question relates to a fact in issue in the proceeding or to matters necessary to be known to determine an issue of fact in the proceeding (see Evidence Act 1971, s 59 (Scandalous and insulting questions)).

(6) If the accused person does not have a legal representative, the court may, if it considers it is in the interests of justice, do 1 or more of the following:

(a) adjourn the proceeding to enable the person to obtain a legal representative to conduct the examination;

(b) make—

(i) an order that the person obtain legal representation; and

(ii) any other order the court considers necessary to secure legal representation for the person.

(7) If the proceeding is a trial by jury, the court must tell the jury that—

(a) the accused person may not examine the witness personally; and

(b) obtaining, or being provided with, legal representation to examine the witness, or having the accused person’s questions put to the witness by a person appointed by the court, is a usual practice; and

(c) the jury must not draw any inference against the accused person, or give the evidence more or less weight, because the examination is not conducted personally by the accused person.

(8) In this section:

examine includes cross-examine and re-examine.

disability

vulnerability

disability

vulnerability

(2) For this section, a person has authority in relation to an audiovisual recording only if the person possesses the recording, or does something with the recording, in connection with—

(a) the investigation of, or a proceeding for, an offence in relation to which the recording is prepared; or

(b) a re-hearing, re-trial or appeal in relation to the proceeding; or

(c) another proceeding in which the recording is or may be admitted in evidence under section 40V.

(1A) A witness may give evidence at a pre-trial hearing.

A witness must give the witness’s evidence at a pre-trial hearing

The evidence must be given

for all purposes

(other than subsection (3))

for all purposes

(other than section 40S (4))

disability

vulnerability

for all purposes

(other than section 40F (3))

disability

vulnerability

(2) This Act, as in force immediately before the amendments commence, continues to apply to the proceeding.

(3) For subsection (1), the hearing of a proceeding has started if the court has begun to take oral or written evidence in the proceeding (other than in relation to bail or any other interlocutory matter).

another sexual offence

another offence

(a) if the court is satisfied, having regard to all the evidence before it, that there is no reasonable prospect that the person would be found guilty of an indictable offence—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; or

(b) if the court is not satisfied as mentioned in paragraph (a)—commit the person for trial.

the offence

an indictable offence

(8) The court must not sentence a defendant to imprisonment for an offence if the court has heard and decided the case under subsection (1) (a) in the absence of the defendant.

(9) The court must set aside an order made in hearing and deciding a case under subsection (1) (a) if—

(a) the defendant applies under the rules to have the order set aside; and

(b) the court is satisfied on reasonable grounds that the defendant—

(i) did not know the hearing date; or

(ii) did not understand that the court could proceed to hear and decide the case in the defendant’s absence if the defendant failed to appear; or

(iii) otherwise had a reasonable excuse for failing to appear.

(1) The amendments of part 3.5 (Proceedings for indictable offences) made by the Crimes Legislation Amendment Act 2008 do not apply in relation to a proceeding if the court has begun to take oral or written evidence in the proceeding before the amendments commence.

(2) Part 3.5, as in force immediately before the amendments mentioned in subsection (1) commence, continues to apply in relation to the proceeding.

(3) 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.

(4) Part 3.10, as in force immediately before the amendments mentioned in subsection (3) commence, continues to apply to the proceeding.

(1) In this section:

commencement day means the day the Crimes Legislation Amendment Act 2008, part 1.11 (Magistrates Court Act 1930) commences.

(2) A written statement is not inadmissible only because it does not comply with section 90AA (3) if it—

(a) was made before the commencement day; and

(b) contains words to the effect of the endorsement set out in section 90AA (3) (a).

(3) This section is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

(1) This section applies if, on the trial of a person for an indictable offence against a territory law—

(a) the person is found not guilty of the offence but guilty of another offence that, under that law, is an alternative offence; and

(b) the alternative offence is a summary offence.

(2) The court may sentence or otherwise deal with the person for the alternative offence.

(3) In sentencing or otherwise dealing with the person, the court has the same functions as the Magistrates Court.

Presentation speech made in the Legislative Assembly on 2009.

Notified under the Legislation Act on 2009.

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