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TASMANIA
__________
CRIMES (MISCELLANEOUS AMENDMENTS)
BILL 2013
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
PART 2 - CRIMINAL CODE ACT 1924 AMENDED
3. Principal Act
4. Principal Act amended
PART 3 - JUSTICES ACT 1959 AMENDED
5. Principal Act
6. Section 71 amended (Petty crimes triable summarily)
7. Section 72 amended (Other crimes triable summarily)
8. Section 110 amended (Powers of Supreme Court)
9. Section 113A amended (Alternative appeals in certain cases)
10. Section 113B amended (Review by magistrate)
PART 4 - CONCLUDING PROVISIONS
11. Repeal of Act
[Bill 4]-XI
2
CRIMES (MISCELLANEOUS AMENDMENTS)
BILL 2013
(Brought in by the Minister for Justice, the Honourable Brian
Neal Wightman)
A BILL FOR
An Act to amend the Criminal Code Act 1924 and the
Justices Act 1959
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Crimes
(Miscellaneous Amendments) Act 2013.
2. Commencement
The provisions of this Act commence on a day
or days to be proclaimed.
[Bill 4] 3
Crimes (Miscellaneous Amendments) Act 2013
Act No. of
s. 3 Part 2 - Criminal Code Act 1924 Amended
PART 2 - CRIMINAL CODE ACT 1924 AMENDED
3. Principal Act
In this Part, the Criminal Code Act 1924* is
referred to as the Principal Act.
4. Principal Act amended
Schedule 1 to the Principal Act is amended as
follows:
(a) by inserting the following definition after
the definition of judicial officer in
section 1:
motor vehicle has the same meaning
as it has in the Vehicle and
Traffic Act 1999;
(b) by omitting section 92;
(c) by inserting in section 150 ", whether
living or inanimate," after "maintains
anything";
(d) by inserting the following section after
section 240:
240A. Carjacking
(1) A person (the perpetrator) -
(a) who -
*No. 69 of 1924
4
Crimes (Miscellaneous Amendments) Act 2013
Act No. of
Part 2 - Criminal Code Act 1924 Amended s. 4
(i) assaults a person
with intent to take
a motor vehicle;
and
(ii) without having the
consent of the
owner of the
vehicle, or the
person in lawful
possession of the
vehicle, takes and
drives it or takes it
for the purpose of
driving it; or
(b) who, without having the
consent of the owner, or
the person in lawful
possession, of a motor
vehicle -
(i) takes and drives it;
or
(ii) takes it for the
purpose of driving
it -
when a person, other than
a person with whom the
perpetrator is in company,
is in or on the vehicle -
is guilty of a crime which is
called carjacking.
5
Crimes (Miscellaneous Amendments) Act 2013
Act No. of
s. 4 Part 2 - Criminal Code Act 1924 Amended
Charge: Carjacking.
(2) A person who commits
carjacking and who -
(a) is in company with any
other person or persons at
the time of committing
that carjacking; or
(b) is armed with a firearm or
other dangerous or
offensive weapon or
instrument at the time of
committing that
carjacking; or
(c) causes bodily harm to any
person immediately
before, at, or immediately
after, the time of
committing that
carjacking -
is guilty of a crime which is
called aggravated carjacking.
Charge: Aggravated carjacking.
(3) In this section -
drive includes operate.
(e) by inserting the following section after
section 253:
6
Crimes (Miscellaneous Amendments) Act 2013
Act No. of
Part 2 - Criminal Code Act 1924 Amended s. 4
253A. Fraud
Any person who, with intent to
defraud, or by deceit or any
fraudulent means -
(a) obtains property from a
person; or
(b) induces a person to -
(i) deliver, transfer,
or assign, property
to another person;
or
(ii) cause property to
be delivered,
transferred, or
assigned, to
another person; or
(c) gains a benefit, pecuniary
or otherwise, for any
person; or
(d) causes a detriment,
pecuniary or otherwise, to
any person; or
(e) induces any person to do
an act that the person is
lawfully entitled to
abstain from doing; or
(f) induces any person to
abstain from doing any
7
Crimes (Miscellaneous Amendments) Act 2013
Act No. of
s. 4 Part 2 - Criminal Code Act 1924 Amended
act that the person is
lawfully entitled to do -
is guilty of a crime.
Charge: Fraud.
(f) by omitting paragraph (d) from section
297(1);
(g) by omitting from section 331B(2)(c) "in
section 368A." and substituting "in
section 368A; and";
(h) by inserting the following paragraph after
paragraph (c) in section 331B(2):
(d) the Court is to warn the defendant
of the requirements of
section 368B(1).
(i) by inserting the following subsection
after subsection (2) in section 331B:
(2A) An application under
subsection (2)(a) may only be
made, at any appearance of the
defendant other than his or her
first appearance, with the leave of
the Supreme Court.
(j) by inserting the following section after
section 334B:
334C. Causing death by dangerous driving
On an indictment for causing
death by dangerous driving, the
8
Crimes (Miscellaneous Amendments) Act 2013
Act No. of
Part 2 - Criminal Code Act 1924 Amended s. 4
accused person may be convicted
of an offence under section 32(1)
of the Traffic Act 1925.
(k) by inserting the following paragraph after
paragraph (d) in section 337B(1):
(e) indecent act with or directed at a
young person under the age of 17
years;
(l) by inserting the following paragraph after
paragraph (b) in section 338(1):
(ba) fraud;
(m) by inserting in section 350(1) "or a
person appearing for the Crown" after
"Officer";
(n) by inserting the following section after
section 368A:
368B. Admissible opinion evidence
(1) A defendant who intends to
adduce, in relevant proceedings,
admissible opinion evidence of a
witness must give to the Director
of Public Prosecutions a notice of
evidence in relation to the witness
before the end of the prescribed
period, if any, in relation to the
relevant proceedings.
9
Crimes (Miscellaneous Amendments) Act 2013
Act No. of
s. 4 Part 2 - Criminal Code Act 1924 Amended
(2) A notice of evidence in relation to
a witness is a notice in writing
that -
(a) contains the name and
business address of the
witness; and
(b) describes the
qualifications of the
witness to give admissible
opinion evidence; and
(c) sets out the substance of
the admissible opinion
evidence it is proposed to
adduce from the witness
and the acts, facts, matters
and circumstances on
which the opinion is
formed.
(3) For the purposes of this section,
the prescribed period in relation
to admissible opinion evidence
that is to be adduced -
(a) in a trial on indictment
(other than in
circumstances to which
paragraph (b), (c) or (d)
applies) where the
defendant has been
warned in accordance
with section 331B(2)(d)
10
Crimes (Miscellaneous Amendments) Act 2013
Act No. of
Part 2 - Criminal Code Act 1924 Amended s. 4
of the requirements of
subsection (1), is -
(i) the period of 7
days from the day
on which the
defendant is
warned of the
requirements; or
(ii) if the admissible
opinion evidence
does not become
available to the
defendant until
after the date on
which the
defendant is
warned of the
requirements, as
soon as
practicable after
the admissible
opinion evidence
becomes available
to the defendant;
or
(b) in an investigation as to
the defendant's fitness to
stand trial, is as soon as
practicable after the
admissible opinion
evidence becomes
available to the defendant;
or
11
Crimes (Miscellaneous Amendments) Act 2013
Act No. of
s. 4 Part 2 - Criminal Code Act 1924 Amended
(c) in a special hearing, is as
soon as practicable after
the admissible opinion
evidence becomes
available to the defendant;
or
(d) in submissions as to
sentencing at a trial on
indictment for an offence,
is as soon as practicable
after the admissible
opinion evidence becomes
available to the defendant.
(4) If the defendant does not comply
with subsection (1) in relation to
admissible opinion evidence that
he or she intends to adduce in
relevant proceedings, the
admissible opinion evidence may
not be adduced in the proceedings
except in accordance with an
order or direction of a court or a
judge under subsection (5).
(5) A court or judge may do any or
all of the following if a defendant
does not comply with
subsection (1) in relation to
admissible opinion evidence:
(a) order or direct that the
admissible opinion
evidence may be adduced
in relevant proceedings;
12
Crimes (Miscellaneous Amendments) Act 2013
Act No. of
Part 2 - Criminal Code Act 1924 Amended s. 4
(b) order or direct that a
notice of evidence in
relation to the admissible
opinion evidence is
required to be given to the
Director of Public
Prosecutions within a
period specified in the
order or direction;
(c) make any other order or
direction that the court or
judge thinks appropriate
in relation to the
admissible opinion
evidence.
(6) If the defendant intends to
adduce, in relevant proceedings,
admissible opinion evidence
relevant to the defendant's mental
state, or medical condition, at the
time of an alleged offence to
which the proceedings relate, the
court or a judge may, on the
application of the prosecutor,
require the defendant to submit,
at the prosecutor's expense, to an
examination by a person qualified
to give admissible opinion
evidence on the defendant's
mental state or medical condition.
(7) Subsection (8) applies in relation
to admissible opinion evidence
13
Crimes (Miscellaneous Amendments) Act 2013
Act No. of
s. 4 Part 2 - Criminal Code Act 1924 Amended
adduced, or to be adduced, in
relevant proceedings, if -
(a) the defendant adduces the
admissible opinion
evidence, or intends to
adduce the admissible
opinion evidence, in the
proceedings in accordance
with an order or direction
of a court or a judge under
subsection (5); or
(b) a notice of evidence in
relation to the admissible
opinion evidence is given
to the Director of Public
Prosecutions less than 14
days before the
proceedings begin.
(8) If this subsection applies in
relation to admissible opinion
evidence adduced, or intended to
be adduced, in relevant
proceedings, a court or a judge
may -
(a) on the application of the
prosecutor, adjourn the
proceedings to allow the
prosecution a reasonable
opportunity to do any or
all of the following:
14
Crimes (Miscellaneous Amendments) Act 2013
Act No. of
Part 2 - Criminal Code Act 1924 Amended s. 4
(i) to consider a
notice of evidence,
if any, in relation
to the admissible
opinion evidence;
(ii) to consider the
admissible opinion
evidence, if any;
(iii) to obtain evidence
on the matter to
which the
admissible opinion
evidence adduced,
or intended to be
adduced, relates;
or
(b) if a jury has been
empanelled and the
adjournment would, in the
opinion of the court,
adversely affect the
course of the relevant
proceedings, discharge
the jury and order that the
relevant proceedings be
re-commenced.
(9) The court is to grant an
application for an adjournment
under subsection (8)(a), unless
there are good reasons, in the
opinion of the court, not to do so.
15
Crimes (Miscellaneous Amendments) Act 2013
Act No. of
s. 4 Part 2 - Criminal Code Act 1924 Amended
(10) The prosecutor or the court (or
both) may comment to the jury on
the failure of a defendant to
comply with a requirement of
subsection (1) in relation to
admissible opinion evidence
adduced in relevant proceedings.
(11) A notice required by this section
to be given to the Director of
Public Prosecutions may be
given -
(a) by delivering it to him or
her; or
(b) by leaving it at his or her
office; or
(c) by sending it in a
registered letter, or by
certified mail, addressed
to him or her at his or her
office.
(12) In computing a prescribed period
for the purposes of this section,
any day that is an excluded day
for the purposes of section 29 of
the Acts Interpretation Act 1931
must be disregarded.
(13) This section applies despite
section 11(1) of the Criminal
Justice (Mental Impairment) Act
1999.
16
Crimes (Miscellaneous Amendments) Act 2013
Act No. of
Part 2 - Criminal Code Act 1924 Amended s. 4
(14) In this section -
admissible opinion evidence
means evidence of an
opinion to which section
79 of the Evidence Act
2001 applies;
investigation as to the
defendant's fitness to
stand trial means an
investigation under the
Criminal Justice (Mental
Impairment) Act 1999
into a defendant's fitness
to stand trial for an
indictable offence;
relevant proceedings, in
relation to a defendant,
means -
(a) a trial of the
defendant on
indictment; or
(b) an investigation as
to the defendant's
fitness to stand
trial; or
(c) a special hearing
in relation to the
defendant; or
(d) proceedings in
relation to the
17
Crimes (Miscellaneous Amendments) Act 2013
Act No. of
s. 4 Part 2 - Criminal Code Act 1924 Amended
sentencing of the
defendant in
relation to an
offence for which
the defendant has
been tried on
indictment;
special hearing means a
special hearing held in
accordance with section
15 of the Criminal Justice
(Mental Impairment) Act
1999.
(o) by omitting subsection (4A) from section
402 and substituting the following
subsections:
(4A) The Court, on hearing an appeal
against a sentence passed on a
person for an offence (whether
the appeal was brought, made or
lodged by the person or by the
prosecutor), may take into
account any matter relevant to the
sentence that has occurred
between when the court of trial
dealt with the person and when
the appeal is heard.
(4B) Despite subsection (4A), the
Court, in passing another
sentence under subsection (4),
must not take into account the
element of double jeopardy
18
Crimes (Miscellaneous Amendments) Act 2013
Act No. of
Part 2 - Criminal Code Act 1924 Amended s. 4
involved in the person being
sentenced again, in order to pass
a less severe sentence than the
Court would otherwise consider
appropriate.
(4C) Despite subsection (4), on an
appeal against a sentence the
Court may, if it thinks that it is
appropriate and in the interests of
justice to do so, quash the
sentence passed at the trial and
remit the matter to the court of
trial.
(4D) If the Court quashes a sentence
passed at a trial and remits the
matter to the court of trial under
subsection (4C) -
(a) it may give any directions
that it thinks fit
concerning the manner
and scope of the further
hearing of the matter by
the court of trial,
including a direction as to
whether that hearing is to
be conducted by the same
judge as, or a different
judge to, the judge that
passed the sentence; and
(b) the court of trial must
hear and determine the
matter in accordance with
19
Crimes (Miscellaneous Amendments) Act 2013
Act No. of
s. 4 Part 2 - Criminal Code Act 1924 Amended
the law and any such
directions; and
(c) the court of trial may take
into account any matter
relevant to sentencing that
has occurred between
when the court of trial
passed the quashed
sentence and when the
court of trial decides the
remitted matter; and
(d) despite paragraph (c), the
court of trial must not
take into account the
element of double
jeopardy involved in the
person being sentenced
again, so as to pass a less
severe sentence than the
court of trial would
otherwise consider
appropriate.
(p) by inserting the following paragraph after
paragraph (a) in section 409(1):
(ab) order a person convicted, or a
person who is a respondent to a
prosecution appeal, to attend
before the Court on the hearing of
an appeal in relation to the person
or to receive judgment in relation
to the appeal;
20
Crimes (Miscellaneous Amendments) Act 2013
Act No. of
Part 2 - Criminal Code Act 1924 Amended s. 4
(q) by inserting in section 411(2) "or if
ordered to attend before the Court under
section 409(1)(ab)" after "Court";
(r) by inserting in Appendix A after
Rape.
the following item:
Indecent assault.
21
Crimes (Miscellaneous Amendments) Act 2013
Act No. of
s. 5 Part 3 - Justices Act 1959 Amended
PART 3 - JUSTICES ACT 1959 AMENDED
5. Principal Act
In this Part, the Justices Act 1959* is referred to
as the Principal Act.
6. Section 71 amended (Petty crimes triable
summarily)
Section 71(1) of the Principal Act is amended by
inserting after paragraph (a) the following
paragraph:
(ab) section 253A of the Criminal Code, if the
value of property obtained or delivered,
or the benefit gained or detriment caused,
does not exceed $5 000; or
7. Section 72 amended (Other crimes triable
summarily)
Section 72(1) of the Principal Act is amended by
inserting after paragraph (c) the following
paragraph:
(ca) under section 253A of the Criminal
Code, if the value of property obtained or
delivered, or the benefit gained or
detriment caused, exceeds $5 000 but
does not exceed $20 000; or
*No. 77 of 1959
22
Crimes (Miscellaneous Amendments) Act 2013
Act No. of
Part 3 - Justices Act 1959 Amended s. 8
8. Section 110 amended (Powers of Supreme Court)
Section 110 of the Principal Act is amended by
inserting after subsection (2) the following
subsections:
(2AA) The court, on hearing a motion to review
in relation to an order imposing a
sentence on a person in relation to a
matter, may, whether the person who
filed the notice of review in respect of
the order was the person or the
prosecutor, take into account any matter,
relevant to sentencing, that has occurred
between when the justices who made the
order dealt with the person in relation to
the matter and when the court hears the
motion to review.
(2AB) Despite subsection (2AA), the court, in
exercising in relation to an order a power
under subsection (2), the effect of the
exercise of which is that the person to
whom the order relates is being
sentenced again for an offence, must not
take into account any element of double
jeopardy involved in the person being
sentenced again so as to impose a less
severe sentence than the court would
otherwise consider appropriate.
(2AC) If the court quashes an order, made by
justices, in relation to a matter and remits
the matter under subsection (2) to the
justices, either with or without any
direction in law -
23
Crimes (Miscellaneous Amendments) Act 2013
Act No. of
s. 9 Part 3 - Justices Act 1959 Amended
(a) the justices must hear and
determine the matter in
accordance with the law and any
such direction in law; and
(b) the justices, in sentencing the
person in relation to the matter,
may take into account any matter
relevant to sentencing that has
occurred between when the court
made the quashed order and when
the justices determine the
remitted matter; and
(c) despite paragraph (b), the justices
must not take into account the
element of double jeopardy
involved in the person being
sentenced again, so as to impose
a less severe sentence than the
justices would otherwise consider
appropriate.
9. Section 113A amended (Alternative appeals in
certain cases)
Section 113A of the Principal Act is amended by
inserting after subsection (10) the following
subsections:
(11) On hearing an appeal under this section
against an order the magistrate may, in
exercising under subsection (10) a power
in relation to sentencing (whether the
person who appeals under subsection (1)
is the person to whom the order relates or
24
Crimes (Miscellaneous Amendments) Act 2013
Act No. of
Part 3 - Justices Act 1959 Amended s. 10
the prosecutor), take into account any
matter relevant to sentencing that has
occurred between when the order
appealed against was made and when the
magistrate hears and determines the
appeal.
(12) Despite subsection (11), the magistrate,
in exercising in relation to an order in
respect of a person a power under
subsection (10), the effect of the exercise
of which is that the person is being
sentenced again for an offence, must not
take into account any element of double
jeopardy so as to impose a less severe
sentence than the magistrate would
otherwise consider appropriate.
10. Section 113B amended (Review by magistrate)
Section 113B of the Principal Act is amended by
inserting after subsection (3) the following
subsections:
(3A) A magistrate, on the hearing of an
application under this section in relation
to an order imposing a sentence on a
person in relation to a matter may,
(whether the person or the prosecutor
applied under subsection (1) for the
review), take into account any matter
relevant to sentencing that has occurred
between when the order to which the
reviews relates was made and when the
magistrate reviews the order.
25
Crimes (Miscellaneous Amendments) Act 2013
Act No. of
s. 10 Part 3 - Justices Act 1959 Amended
(3B) Despite subsection (3A), a magistrate, in
exercising in relation to an order in
respect of a person a power under
subsection (3), the effect of the exercise
of which is that the person is being
sentenced again for an offence, must not
take into account any element of double
jeopardy so as to impose a less severe
sentence than the magistrate would
otherwise consider appropriate.
26
Crimes (Miscellaneous Amendments) Act 2013
Act No. of
Part 4 - Concluding Provisions s. 11
PART 4 - CONCLUDING PROVISIONS
11. Repeal of Act
This Act is repealed on the three hundred and
sixty fifth day from the day on which it
commences.
Government Printer, Tasmania 27