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CRIMES LEGISLATION AMENDMENT BILL 2008
2008
LEGISLATIVE
ASSEMBLY FOR THE
AUSTRALIAN CAPITAL
TERRITORY
CRIMES LEGISLATION
AMENDMENT BILL 2008
EXPLANATORY
STATEMENT
Presented
by
Simon Corbell
MLA
Attorney General
Crimes Legislation Amendment
Bill 2008
Outline
Practical aspects of the criminal justice system
have been subject to reform across Australia during the last decade. The
results of consultation with the ACT public through the issue of a discussion
paper have informed the changes to the practical aspects of the ACT criminal
justice system that are contained in this Bill. Those practical aspects include
the threshold at which an offence becomes an indictable offence, the manner in
which a matter is committed from the Magistrates Court to the Supreme Court, the
appeals process, and costs
orders.
Thresholds for summary and
indictable jurisdiction
The Bill increases the
threshold for matters that must be dealt with summarily in the Magistrates
Court, to cover offences with a maximum penalty of up to 2 years’
imprisonment and property offences involving up to $30,000 (the current
thresholds are 12 months’ imprisonment or property up to $10,000 in
value). This will mean that offences such as common assault, failing to answer
bail, neglect of children, and threatening to cause property damage that carry a
maximum penalty of 2 years’ imprisonment can only be determined in the
Magistrates Court. These changes will more properly allocate matters to the
Magistrates Court that can fall within the range of sentencing expertise of that
Court, recognising the professional ability of the Magistrates to deal with an
expanded jurisdiction.
In the past there have
been instances of defendants having to be tried in the Supreme Court for
relatively minor examples of serious offences that, because of their
categorisation as indictable-only offences, cannot be dealt with in the
Magistrates Court by election of the defendant. An example is aggravated
burglary, which carries a maximum penalty of 20 years, but can be committed in
relatively minor circumstances, such as where two people together (the
aggravating factor) steal a small amount of property or money from a house
without violence or damage to property. The Bill includes the offences of
aggravated burglary and aggravated robbery in the offences that can be heard by
a Magistrate at the election of the defendant, but only if the Magistrates
Court, the prosecution and the defence are all of the opinion that the matter
can be so dealt with.
Ex parte
hearings
The Bill also makes changes to the
Magistrates Court Act 1930, section 110. That Act currently allows for
summary matters to be heard in the absence of the defendant if the defendant has
been served with a summons, in what is termed an ex parte hearing. However the
provisions for service of a summons do not require the defendant to be
personally served with a summons, so there could be cases where a defendant
knows nothing about a case that is being heard in his or her absence. This is
incompatible with the Human Rights Act 2004, section 22(2)(d),
that provides the right to be tried in person. There could also be cases where
a defendant may have been personally served with the summons but does not
understand the potential consequences of not attending court to have the matter
heard.
To remedy this situation the Bill
amends the provisions of the Magistrates Court Act 1930 so that the
Magistrate may only proceed to hear a summary charge in the absence of the
defendant if the Magistrate is satisfied that the defendant is waiving the right
to attend in person, and that the decision to waive the right is a fully
informed and made voluntarily.
Sentencing
threshold for Magistrates Court
The Bill
increases the sentencing threshold for the Magistrates Court from imprisonment
for 2 years or a fine of $10,000, or both, to imprisonment for 5 years, a fine
of $15,000, or both. Adoption of this higher threshold brings the ACT into line
with the Northern Territory and Tasmania, which, like the ACT, are jurisdictions
with a two-tier court system, and complements the changes to the threshold for
summary only matters.
Timing of
election
Historically, indictable charges that
may be heard summarily have proceeded as a committal in the Magistrates Court
until the end of the prosecution evidence. The defendant can then elect whether
to have the matter dealt with summarily in the Magistrates Court or proceed to
the Supreme Court for trial. The Bill requires defendants to indicate whether
they will be consenting to the jurisdiction of the Magistrates Court when the
matter is listed for hearing. Full disclosure of the prosecution case will
occur through case management processes before hearing, enabling the defendant
to make an informed choice about jurisdiction on the basis of the charges and
the nature of the evidence to be presented. The defendant will be able to apply
to revoke the election for jurisdiction if there has been a significant change
in circumstances.
Hand-up
Committals
The committal process is the process
by which indictable charges are committed to the Supreme Court. It is an
administrative procedure where the Magistrate presiding over the case makes a
decision, based on the evidence before the court, to commit the defendant to
stand trial, or be sentenced, in the Supreme Court. It has been recognised for
many years that the practical side of the committal process in the ACT has moved
beyond its legislative basis. When committals were initially formulated it was
expected that all evidence would be taken orally, with witnesses called and
cross-examined. With the development of a culture and practice of full
disclosure of prosecution cases the modern committal will normally proceed with
the Magistrate accepting written witness statements as evidence upon which to
base the decision to commit a matter to the Supreme
Court.
The Bill recognises this transition and
changes the legislation so that hand-up, or paper, committals are the rule. The
use of hand-up committals will reduce stress to victims of crimes, avoid
unnecessary examination of witnesses, and save time and costs for the court, the
witnesses and counsel as, in the majority of cases, witnesses will not be
required to attend court for cross-examination during the committal.
However, the Bill allows a witness to be
called at the committal to be cross-examined in very limited circumstances, when
the court decides that is in the interests of justice for that witness to be
called. The Bill does not provide for applications to be made for witnesses to
be called to give oral evidence as evidence in chief as it is contemplated that
this evidence will always be given through the tendering of written
statements.
Committal
Tests
The Bill also changes the test that a
Magistrate applies in determining whether a matter should be committed to the
Supreme Court from a two stage test to a one step process where the question is
decided on the basis of whether there is a reasonable prospect of conviction
based on the evidence before the court. This broad test is intended to allow
Magistrates to take such matters as credibility of witnesses into account in
addition to the facts as set out in the witness statements.
Committals are referred to as ‘preliminary
examinations’ in the current legislation. The Bill replaces these
references in the legislation with the term ‘committal hearing’ to
bring the legislation into line with common terminology used by the legal
profession in the ACT and throughout
Australia.Appeals
processThe Bill abolishes the current
two-stage process for appeal by way of order to review where an application for
an order nisi is made before a decision from the Magistrates Court can be
reviewed by the Supreme Court and replaces it with a one step process where an
appeal is instituted by lodging a notice of appeal. It preserves the nature of
the appeal for a review of a decision, but changes the process by which that
appeal occurs. The new appeal process is referred to as a ’review
appeal’ to refer to the distinction between the grounds of appeal for an
appeal under Magistrates Court Act 1930, Division 3.10.3 and those under
Division
3.10.2.CostsThe
Bill introduces a scale of costs in summary criminal cases to regulate the
awards of costs made in the Magistrates Courts. It is envisaged that a scale of
costs will provide more certainty in awards, encourage defence practitioners to
improve the management of costs and charges, and reduce the current, sometimes
large, discrepancies in awards.
Criminal Legislation
Amendment Bill 2008
Detail
Part 1 —
Preliminary
Clause 1 — Name of
Act
This is a technical clause that names the
short title of the Act. The name of the Act would be the Crimes Legislation
Amendment Act 2008.
Clause 2—
Commencement
This clause enables the Act to
commence the day after it is notified on the Legislation
Register.
Clause 3— Legislation amended – sch
1
This is a technical clause that notes that
this Act amends the legislation set out in schedule
1.
The amendments made to the Confiscation
of Criminal Assets Act 2003, Corrections Management Act 2007,
Crimes (Forensic Procedures) Act 2000, Crimes (Sentencing) Act
2005, Criminal Code 2002, Domestic Violence and Protection Orders
Act 2001, Domestic Violence and Protection Orders Act 2008,
Prostitution Act 1992, and Witness Protection Act 1996 are
consequential on the amendment made in Part 1.10 of the Schedule that changes
the definition of an indictable offence in the Legislation Act 2001. It
is not intended that the operation of any of these pieces of legislation should
be altered by this amendment. Instead they are amended so that references to an
indictable offence are changed to refer to offences that are punishable by
imprisonment for longer than 12 months, or redefined as relevant offences,
depending on the context. This means that this is no change to the range of
offences that are subject to the operation of these Acts.
Schedule 1 –
Amendments
Part 1.1 — Confiscation of Criminal
Assets Act 2003
Clause 1.1 - Part 3, note 1, dot
point
This is a technical amendment to remove
references to an ‘indictable offence’.
Clause 1.2 - Part 3, note 1, dot
point
This is a technical amendment to remove
references to an ‘ordinary indictable offence’.
Clause 1.3 - Part 3, note 1, new dot
point
This is a technical amendment to insert a
reference to the new definition of ‘relevant
offence’.
Clause 1.4 - Section 13
(2)
This section replaces the definitions of
‘indictable offence’ and ‘ordinary indictable offence’
and ‘serious offence’ with the phrases ‘ordinary
offence’, ‘relevant offence’ and ‘serious offence’
to reflect that the offences are not dependant on the definition of
‘indictable offence’ but are connected to the period of imprisonment
that an offence has as the maximum penalty.
Clause 1.5 - Section 83 (1), note
2
This is a technical amendment to remove
references to an ‘indictable offence’.
Clause 1.6 - Section 129 (2),
note
This is a technical amendment to remove
references to an ‘indictable offence’.
Clause 1.7 - Section 157, note
3
This is a technical amendment to remove
references to an ‘indictable offence’.
Clause 1.8 - Section 190 (4),
note
This is a technical amendment to remove
references to an ‘indictable offence’.
Clause 1.9 - Dictionary, note 2, dot
point
This is a technical amendment to remove
references to an ‘indictable offence’.
Clause 1.10 - Dictionary, definition of indictable
offence
This is a technical amendment to
remove references to an ‘indictable offence’.
Clause 1.11 - Dictionary, definition of ordinary
indictable offence
This is a technical
amendment to remove references to an ‘ordinary indictable
offence’.
Clause 1.12 – Dictionary, new definition of
relevant offence
This clause sets out
the new definition of ‘relevant offence’ to take into account the
removal of references to ‘indictable offence’.
Clause 1.13 – Further amendments, mentions of
indictable offence and ordinary indictable
offence
This table changes all remaining
references to ‘indictable offence’ and ‘ordinary indictable
offence’ in the Confiscation of Criminal Assets Act 2003 to reflect
the new definitions of ‘ordinary offence’ and ‘relevant
offence’.
Part 1.2 - Corrections Management Act
2007
Clause 1.14 - Section 31A,
note
This is a technical clause that removes
the reference to ‘indictable offences against ACT
laws’.
Part 1.3 Crimes Act
1900
Clause 1.15 - Section 22
heading
This is a technical clause that removes
the reference to an ‘indictable
offence’.
Clause 1.16 - Section
26A
This clause removes the summary offence of
common assault as the amendment in Part 1.10 means that the offence of common
assault set out in section 26 is now a summary offence, rendering section 26A
superfluous.
Clause 1.17 - Section 49, table 49, item 6, column
2
This is a technical clause that removes the
reference to an ‘indictable offence’.
Clause 1.18 - Section 114A, definition of proceeds
of crime, paragraphs (a) and (b) (ii)
This
is a technical clause that removes the reference to an ‘indictable
offence’.
Clause 1.19 - Section 185, definition of
evidential material
This is a technical
clause that removes the reference to an ‘indictable
offence’.
Clause 1.20 - Section 185, new definition of
serious offence
This is a technical
clause that removes the reference to an ‘indictable offence’ and
replaces it with a definition of a ‘serious
offence’.
Clause 1.21 - Section 185, definitions of thing
relevant to an indictable offence and thing relevant to a summary
offence
This is a technical clause that
removes the references to indictable and summary offences.
Clause 1.22 - Section 187 (1) and
note
This is a technical clause that removes
the reference to an ‘indictable offence’.
Clause 1.23 - Section 187
(3)
This is a technical clause that removes the
reference to a ‘summary offence’, consequential to the change in
definition of an indictable offence.
Clause 1.24 - Section 194 (6) (ii) and (7)
(ii)
This is a technical clause that removes
the reference to an ‘indictable offence’.
Clause 1.25 - Section 195 (1) (d) (ii) and (2) (c)
(ii)
This is a technical clause that removes
the reference to an ‘indictable offence’.
Clause 1.26 – Section 207 (1)
(a)
This is a technical clause that removes the
reference to an ‘indictable offence’.
Clause 1.27 – Section 209 (1)
(a)
This is a technical clause that removes the
reference to an ‘indictable offence’.
Clause 1.28 – Section 217
(1)
This is a technical clause that removes the
reference to an ‘indictable offence’.
Clause 1.29 – Section 220 (2)
(b)
This is a technical clause that removes the
reference to an ‘indictable offence’.
Clause 1.30 – Section 220 (4), definition of
relevant summary offence
This is a
technical clause that removes the reference to a ‘summary
offence’.
Clause 1.31 – Section 253 (1) definition of
offence to which this Act applies
This is a technical clause that removes the reference to
an ‘indictable offence’.
Clause
1.32 – Section 300, definition of serious offence, paragraph
(a)
This is a technical clause that removes the
reference to an ‘indictable
offence’.
Clause 1.33 – Section
374
This amendment removes the definition of
summary offence as the definitions contained in section 190 of the
Legislation Act 2001 cover this definition.
Clause 1.34 – New section 375 (1)
(c)
This clause adds two offences to the types
of indictable offences that a Magistrate may deal with summarily if the
requirements of the provision are met. These are the offences of aggravated
robbery and aggravated burglary. Although these are both very serious offences,
there are some minor examples of each offence that could be appropriately dealt
with by a Magistrate, particularly with the increased sentencing threshold set
out in clause 1.40. Given the potential seriousness of each of these offences,
clause 1.37 provides that these two offences may only be disposed of summarily
if the prosecution consents.
A minor example
may be where there is no violence, or damage to property and the aggravating
feature is where the offence is carried out in the company of another
individual.
Clause 1.35 - Section 375 (3)
(b)
The threshold value of property that
determines whether a Magistrate can determine an offence involving property is
raised from $10,000 to $30,000 by this clause. This is done in recognition of
the increased sentencing power granted by clause 1.40 and as part of a number of
amendments that increase the matters that can be properly dealt with in the
Magistrates Court.
Clause 1.36 - New section 375
(6A)
This clause requires the Magistrate to ask
the defendant, at the time the matter is ready to be listed for hearing, whether
the defendant consents to the case being disposed of summarily. This is a
change from the previous common law position where a defendant could elect
jurisdiction at any time up until the end of the prosecution case, i.e. at the
end of the prosecution case the defendant could indicate his or her consent to
having the matter proceed as a summary hearing, or request that the Magistrate
treat the proceedings as a committal.
The
change is a recognition of both the change in practice so that a defendant now
has the prosecution case at the time that the matter is listed for hearing, and
of the amendments in this Bill that place prohibitions and restrictions on
witnesses being called at committal hearings. The election for jurisdiction
before the matter has commenced a hearing avoids the situation where a witness
who ought not be giving evidence in a committal, gives evidence in a hearing
only to find that it has become a committal. The amendment it also designed to
avoid forum shopping for magistrates who are perceived to be more favourable to
one party or the other.
Clause 1.37 - Section 375 (7)
(c)
This clause amends the provision governing
whether a magistrate can hear and determine an indictable matter summarily so
that it takes into account the requirement for the defendant to indicate his or
her consent at the time at which a matter is listed for hearing. It also
provides that the offences of aggravated burglary and aggravated robbery can
only be dealt with summarily if both the defendant and the prosecutor consent to
the jurisdiction. This is intended to reflect that these are serious offences
and that real consideration needs to be given to whether they are appropriate
cases to be dealt with in the Magistrates Court.
Clause 1.38 - Section 375 (8)
(c)
This clause amends the provision that
allows a Magistrate to sentence a defendant for an indictable offence so that it
takes into account the requirement for the defendant to indicate his or her
consent at the time at which a matter is listed for hearing. It also provides
that the offences of aggravated burglary and aggravated robbery can only be
dealt with summarily if both the defendant and the prosecutor consent to the
jurisdiction. This is intended to reflect that these are serious offences and
that real consideration needs to be given to whether they are appropriate cases
to be dealt with in the Magistrates Court.
Clause 1.39 - Section 375 (11)
(b)
The amendment is consistent with the
requirement for the defendant to consent to jurisdiction before proceedings have
commenced.
Clause 1.40 – New Section 375
(11A)
This clause increases the sentencing
power of the Magistrates Court when dealing with indictable matters so that the
range of sentences imposed are raised from a fine of $5,000, imprisonment for 2
years or both, to a fine of $15,000, imprisonment for 5 years or both. This is
designed to reflect the increase in the number of matters that may be dealt with
in this court, and the professional ability of the Magistrates to deal with
these matters.
Clause 1.41 - Section 375 (12)
This clause ensures that the sentencing
threshold of the Childrens Court remains at 2 years or a fine of $5,000 or both.
It is appropriate at this stage to keep the maximum sentence for children at a
lower threshold given the lack of parole provisions available for
children.
Clause 1.42 - New section
375A
This clause provides for the revocation of
consent to summary jurisdiction by a defendant in a number of circumstances. It
is intended that consent may not be withdrawn once witnesses have started giving
evidence, as this would allow the newly introduced protections for witnesses and
complainants to be avoided. Instead, if there is a significant change in
circumstances for the defendant such as new legal representation, the
prosecution adding or changing charges or the prosecution providing a relevant
piece of new evidence, the defendant may apply for leave to withdraw their
consent. This provision is intended to overcome attempts at forum shopping,
while still allowing procedural fairness to defendants.
Clause 1.43 - New part
30
This clause provides for the transitional
arrangements when the legislation commences. It is intended that the new
amendments will apply to all cases that are on foot, unless a hearing has
already commenced. It will not be relevant when the charges were laid, or the
offence occurred, but if a hearing or sentencing proceeding has commenced, then
the new provisions will not apply.
Part 1.4 Crimes (Forensic Procedures) Act
2000
Clause 1.44 – Meaning of serious offence and
serious offender Section 9 (1) (a)
This is a
technical clause that removes the reference to an ‘indictable
offence’.
Part 1.5 Crimes (Sentencing) Act
2005
Clause 1.45 –
Section 48
(b)
This
clause recognises that with the amendment to the definition of indictable
offence provided in clause 1.62, there are some previously indictable offences,
that are now summary offences, which are required to be specifically mentioned
in order that the provisions regarding victim impact statements
apply.
Clause 1.46 – Section 48,
note
This is a technical clause that removes
the reference to an ‘indictable offence’.
Part 1.6 Criminal Code
2002
Clause 1.47 - Section
317
This is a technical amendment to reflect
that this offence is now a summary offence following the amendment to the
definition of indictable offence in clause 1.62.
Clause 1.48 - Division 3.2.3
heading
This is a technical amendment to move
the heading of the division to reflect that the offences now captured are now
summary offences following the amendment of the definition of indictable offence
in clause 1.62.
Clause 1.49 - Division 3.8.1
heading
This is a technical amendment to remove
the heading of the division to reflect that the offences in Part 3.8 are now all
summary offences following the amendment of the definition of indictable offence
in clause 1.62.
Clause 1.50 - Division 3.8.2
heading
This is a technical amendment to remove
the heading of the division to reflect that the offences in Part 3.8 are now all
summary offences following the amendment of the definition of indictable offence
in clause 1.62.
Clause 1.51 - Section 363
heading
This amendment reflects that this
offence is a minor example of the offence, as the offence of Obstructing a
territory official under section 361 is now also a summary
offence.
Part 1.7 Domestic Violence and Protection
Orders Act 2001
Clause 1.52 – Schedule 1, item
6
This is a technical clause that removes the
reference to an ‘indictable
offence’.
Clause 1.53 – Schedule
1, item 10A
This is a technical clause that
removes the reference to the summary offence if common assault.
Part 1.8 Domestic Violence and Protection
Orders Act 2008
Clause 1.54 – Schedule 1, item
6
This is a technical clause that removes the
reference to an ‘indictable offence’.
Clause 1.55 – Schedule 1, item
11
This is a technical clause that removes the
reference to an ‘indictable offence’.
Part 1.9 Evidence (Miscellaneous Provisions)
Act 1991
Clause 1.56 - Section 38
(4)
This is a technical amendment to create
consistent terminology in referring to committals.
Clause 1.57 - Section 38 (4),
note
This is a technical amendment to reflect
the amendments in clause1.76.
Clause 1.58 - Section 38A
(3)
This is a technical amendment to create
consistent terminology in referring to committals.
Clause 1.59 - Section 41
(4)
This is a technical amendment to create
consistent terminology in referring to committals.
Clause 1.60 - Section 41 (4),
note
This is a technical amendment to reflect
the amendments in clause1.76.
Clause 1.61 - Section 41A
(3))
This is a technical amendment to create
consistent terminology in referring to committals.
Part 1.10 Legislation Act
2001
Clause 1.62- Section 190
(1)
This clause amends the definition of
indictable offence so that it now refers to an offence carrying more than 2
years’ imprisonment. The purpose of this amendment is to increase the
jurisdiction of the Magistrates Court by increasing the number of matters that
are summary offences. It is intended that this reflect the ability of
Magistrates to deal professionally with such matters, and that it reduce the
number of minor matters that are committed to the Supreme Court to be dealt
with.
Part 1.11 Magistrates Court Act
1930
Clause 1.63 – Section
17B
This section is removed to reflect the
change in the appeal process for review orders outlined in clause 1.88
onwards.
Clause 1.64 - Section 90
heading
This is a technical amendment to change
the heading of the section to reflect the change in the Act so that all
committal hearings are now conducted as paper or hand up
committals.
Clause 1.65 - Section 90
(1)
This is a technical amendment to create
consistent terminology in referring to committals.
Clause 1.66 - Section 90 (1) (a)
This is a technical amendment to create
consistent terminology in referring to committals.
Clause 1.67 – Section 90
(1)(c)
This clause is a technical amendment to
refer to the new procedures set out in section 90AB of the Act, which will cover
whether witnesses are called for cross examination during a committal hearing,
as amended in clause 1.76.
Clause 1.68 – Section 90 (2) (b)
This amendment shows the change in the
committal process to hand-up committals by removing reference to the informant.
As the committal will be proceeding on the papers, or statements, it will no
longer be necessary for the informant to be called as a witness to identify the
statements and tender them. Instead the prosecution will tender the statements
from the bar table.
Clause 1.69 – Section 90 (2)
(d)
This amendment removes references to the
informant and replaces them with the prosecution as further indication that the
informant will not be called as a witness to tender the brief during a
committal.
Clause 1.70 – Section 90 (5) and
(6)
This is a technical amendment to create
consistent terminology in referring to committals.
Clause 1.71 - Section 90
(7)
This is a technical amendment to create
consistent terminology in referring to committals.
Clause 1.72 - Section 90AA (4) to
(8)
This amendment reflects the intention that
all committals are to proceed as paper committals, with written statements
tendered as the evidence for the prosecution.
Clause 1.73 - Section 90AA
(10)
This clause amends the section to remove
references to calling witnesses to be cross examined on their written statement.
The new provisions to cover this process are contained in clause
1.77.
Clause 1.74 - Section 90A
heading
This is a technical amendment to create
consistent terminology in referring to committals.
Clause 1.75 - Section 90A
(11)
This is a technical amendment as the
provision is incorporated into clause 1.77.
Clause 1.76 - Section 90A (12), definitions of
proceeding for a sexual offence and sexual
offence
This is a technical amendment as
the provision is incorporated into clause 1.77.
Clause 1.77 - Section
90AB
This amendment provides the circumstances
in which a witness may be called to be cross examined during a committal
hearing. Complainants in sexual offence cases cannot be cross examined at a
committal hearing under any
circumstances.
Other witnesses may only be
cross examined if a Magistrate, after hearing an application, decides that it is
in the interests of justice for that witness to be called, and requires the
witness to be available for cross examination. The purpose of the legislation
is to avoid lengthy court delays, to protect witnesses from giving evidence
twice, to encourage defendants to focus their minds on what the issues in the
case are, and to enable defendants access to cross examine witnesses if the
prosecution evidence does not adequately disclose the case or the details of a
relevant issue.
Clause 1.78 - Section
90ABA
This is a technical amendment to reflect
the change in committal hearings to paper committals.
Clause 1.79 - Section
91
This amendment removes the first stage of
the previous two stage committal test. It is replaced by the test in clause
1.82.
Clause 1.80 - Section 92
heading
This is a technical amendment to remove
the reference to the previous committal test.
Clause 1.81 - Section 92
(1)
This is a technical amendment to remove the
reference to the previous committal test
Clause 1.82- Section 94 (a) and
(b)
This amendment inserts the new test to be
applied by a Magistrate in determining whether a matter should be committed to
the Supreme Court. It is intended that the Magistrate is able to take the
prosecution evidence and any evidence put by the defendant into account in
applying the test. This means that the Magistrate may also take the credibility
of any witness who has given evidence into account in making the assessment of
whether there is a reasonable prospect of conviction.
Clause 1.83 - Section 97
(a)
This is a technical amendment to reflect
the change in the committal test outlined in clause 1.82.
Clause 1.84 - New section 110
(1A)
This clause is an amendment to recognise
the need to comply with the Human Rights Act 2004, which provides that a
defendant has a right to be tried in person. Under the previous provision a
matter could be heard ex parte, or in the absence of the defendant, in
circumstances where the defendant may not have known of the existence of the
proceedings. This provision requires that the Magistrate can only proceed to
hear a matter in the absence of the defendant if satisfied that the defendant is
aware of the proceedings and has knowingly decided not to attend, in full
appreciation of the consequences of not attending. If a Magistrate is not
satisfied of these requirements, then the Magistrate may follow the other
provisions of the Act that allow a warrant to issue if a defendant does not
attend in answer to a summons.
Clause 1.85 - Section 207 (1)
(c)
This is a technical clause to reflect the
change in the name of the appeals instituted under Division
3.10.3.
Clause 1.86 – Section
219
This clause removes references to the order
nisi process and introduces references to the review appeal process. It is
intended that a person cannot have an appeal on foot under both division 3.10.2
and division 3.10.03 at the same time. This clause ensures that only one appeal
can be underway at any one time.
Clause 1.87 - Division 3.10.3
heading
The heading of this division is amended
to reflect the change in the process for lodging appeals for review of a
Magistrates Court decision.
The Division is
changed to remove the previous process where an application for an order nisi
was heard before the decision of the Magistrates Court could be reviewed. The
new process preserves the nature of the appeal, but removes the first step of
the process.
Clause 1.88 – Section 219B
heading
The heading of this section is amended
to reflect the change in the process for lodging appeals for review of a
Magistrates Court decision.
Clause 1.89 – Section 219B
(1)
This amendment introduces the term
’review appeal’ as the name of the new process for lodging appeals,
to signify that it has different grounds from the appeals covered by Division
3.10.2.
Clause 1.90 - Section
219C
This amendment removes the process of
applying for an order nisi before a Court could consider an appeal to review an
order of the Magistrates Court. It replaces it with a one step process where
the appellant institutes an appeal by filing a notice and serving that notice of
appeal. The grounds on which a decision of the Magistrates Court may be
reviewed by the Supreme Court are set out in new section 219D. The ability for
the Supreme Court to make an order requiring a magistrate to provide a report is
preserved in new section 219E.
Clause 1.91 – Section 219F
(1)
This is a technical amendment to remove
references to the order nisi process. It establishes that the Supreme Court may
consider evidence to review a decision of the Magistrates Court after an appeal
is lodged.
Clause 1.92 – Section 219F (2)
(b)
This is a technical amendment to create
consistent terminology in referring to committals.
Clause 1.93 – Section 219F (5) and
(6)
This is a technical amendment to remove
references to the order nisi process.
Clause 1.94 - Section 219F
(9)
This is a technical amendment to remove
references to the order nisi process.
Clause 1.95 - Section
244
The amendment to section 244 contained in
this clause introduces a scale of costs, so that in cases where the court
determines that costs should be paid to a defendant or an informant, the amount
of the costs will be determined by reference to a scale of costs, to be set out
in regulations.
Clause 1.96 - Section 289
(2)
This is a technical amendment to create
consistent terminology in referring to committals.
Clause 1.97 - New chapter
11
This clause provides for the transitional
arrangements when the legislation commences. It is intended that the changes to
the definition of ‘indictable offence’ in clause 1.62 will not apply
to cases where an offence that was indictable prior to the commencement of the
Bill, has already been committed to the Supreme Court, although under the Bill
the offence may now be considered to be a summary
offence.
It is intended that the new amendments
will apply to all cases that are on foot in the Magistrates Court, unless a
hearing has already commenced. It will not be relevant when the charges were
laid, or the offence occurred, but if a hearing or sentencing proceeding has
commenced, then the new provisions will not apply.
Clause 1.98 - Dictionary, new definition of review
appeal
This amendment inserts a definition
of ‘review appeal’ to reflect the removal of the order nisi process
in appeals for review of a Magistrates Court decision.
Part 1.12 Prostitution Act
1992
Clause 1.99 – Schedule 1, item
4
This is a technical amendment to create
consistent terminology in referring to committals.
Part 1.13 Supreme Court Act
1933
Clause 1.100 – Section 58A
(1)
This is a technical amendment to create
consistent terminology in referring to committals.
Clause 1.101 - Section 58A (1) (b) and
(c)
This clause is a technical amendment to
reflect the amendments to the committal process contained in clause
1.77.
Clause 1.102 – New part
10
This clause inserts transition provisions to
cover the commencement of the Bill. It is intended that the changes to the
definition of ‘indictable offence’ in clause 1.62 will not apply to
cases where an offence that was indictable prior to the commencement of the
Bill, has already been committed to the Supreme Court, although under the Bill
the offence may now be considered to be a summary offence.
Part 1.14 Witness Protection Act
1996
Clause 1.103 – Section 8 (1) (a)
(i)
This is a technical amendment to create
consistent terminology in referring to committals.
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