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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Crimes (Appeal and Review)
Amendment (DNA Review Panel)
Bill 2006
Contents
Page
1 Name of Act 2
2 Com mencem ent 2
3 Amendment of Crimes (Local Courts Appeal and Review)
Act 2001 No 120 2
4 Consequential amendm ent of other Acts 2
Schedule 1 Principal am endments 3
Schedule 2 Amendment of other Acts 18
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2006
New South Wales
Crimes (Appeal and Review)
Amendment (DNA Review Panel)
Bill 2006
Act No , 2006
An Act to amend the Crimes (Local Courts Appeal and Review) Act 2001 to
establish a DNA Review Panel in connection with reviews of existing convictions;
to transfer and consequentially amend related provisions of the Crimes Act 1900;
and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill as
finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Crimes (Appeal and Review) Amendment (DNA Review Panel) Bill 2006
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Crimes (Appeal and Review) Amendment (DNA Review
Panel) Act 2006.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Crimes (Local Courts Appeal and Review) Act 2001
No 120
The Crimes (Local Courts Appeal and Review) Act 2001 is amended
as set out in Schedule 1.
4 Consequential amendment of other Acts
Each Act listed in Schedule 2 is amended as set out in that Schedule.
5 Repeal of Act
(1) This Act is repealed on the day following the day on which all of the
provisions of this Act have commenced.
(2) The repeal of this Act does not, because of the operation of section 30
of the Interpretation Act 1987, affect any amendment made by
this Act.
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Crimes (Appeal and Review) Amendment (DNA Review Panel) Bill 2006
Principal amendments Schedule 1
Schedule 1 Principal amendments
(Section 3)
[1] Part 7
Insert after Part 6:
Part 7 Review of convictions and sentences
Division 1 Preliminary
74 Definitions
(1) In this Part:
biological material means human blood, semen, hair, saliva,
skin tissue or other biological material from which DNA
information may be obtained, whether the material separately
identified or present in other material.
conviction includes:
(a) a verdict of the kind referred to in section 22 (1) (c) or
(d) of the Mental Health (Criminal Procedure) Act
1990, being a verdict that the accused person committed
the offence charged or an offence available as an
alternative to the offence charged, or
(b) an acquittal on the ground of mental illness, where the
mental illness was not set up as a defence by the person
acquitted.
DNA Review Panel or Panel means the DNA Review Panel
constituted by section 90.
judicial officer means a judicial officer (or former judicial
officer) within the meaning of the Judicial Officers Act 1986.
previous review provisions means the provisions of:
(a) Part 13A of the Crimes Act 1900 as in force before the
repeal and transfer of those provisions to this Part by the
Crimes (Appeal and Review) Amendment (DNA Review
Panel) Act 2006, or
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Crimes (Appeal and Review) Amendment (DNA Review Panel) Bill 2006
Schedule 1 Principal amendments
(b) section 475 of the Crimes Act 1900, or section 26 of the
Criminal Appeal Act 1912, as in force before the repeal
of those sections by the Crimes Legislation (Review of
Convictions) Amendment Act 1993.
sentence includes a sentence or order imposed or made by any
court following a conviction.
(2) In this Part, a reference to a review of, or an inquiry into, a
conviction or sentence includes a reference to a review of, or an
inquiry into, any aspect of the proceedings giving rise to the
conviction or sentence.
75 Exercise of Supreme Court's jurisdiction
(1) The jurisdiction of the Supreme Court under this Part is to be
exercised by the Chief Justice or by a Judge of the Supreme
Court who is authorised by the Chief Justice to exercise that
jurisdiction.
(2) References in this Part to the Supreme Court are to be
construed accordingly.
Note. Divisions 2, 3, 4 and 5 of this Part are inserted by Schedule 2.1 and
are transferred from Part 13A of the Crimes Act 1900.
Division 6 Applications to DNA Review Panel
89 Previously convicted persons eligible to apply for review of
conviction under this Division
(1) For the purposes of this Part, an eligible convicted person is a
convicted person who is eligible in accordance with this section
to make an application under this Division to the DNA Review
Panel.
(2) A convicted person is eligible to make an application to the
Panel if, and only if, the person's claim of innocence may be
affected by DNA information obtained from biological
material specified in the application.
(3) A convicted person is not eligible to make an application to the
Panel unless the person was convicted before 19 September
2006 and the conviction was for a relevant offence. A relevant
offence is:
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Crimes (Appeal and Review) Amendment (DNA Review Panel) Bill 2006
Principal amendments Schedule 1
(a) an offence that is punishable by imprisonment for life or
for a period of 20 years or more, or
(b) any other offence punishable by imprisonment in
respect of which the Panel considers that there are
special circumstances that warrant the application.
(4) In determining whether there are special circumstances that
warrant an application under subsection (3) (b), the Panel is to
have regard to the following matters and any other relevant
matter:
(a) the nature and seriousness of the offence concerned,
(b) the length of any sentence currently being served by the
applicant,
(c) whether the applicant has exhausted all avenues of
appeal,
(d) the current workload of the Panel,
(e) the interests of justice.
(5) A convicted person is not eligible to make an application to the
Panel unless the person:
(a) continues to be subject to the sentence imposed on
conviction (whether the person is in custody or has been
released on parole), or
(b) is subject to supervision or detention under the Crimes
(Serious Sex Offenders) Act 2006 in connection with the
offence for which the person was convicted.
90 Establishment of DNA Review Panel
(1) There is established by this section a DNA Review Panel.
(2) The Panel consists of 6 members appointed by the Governor.
(3) Of the members of the Panel:
(a) one is to be a former judicial officer appointed as
Chairperson of the Panel, and
(b) one is to be a person nominated by the Premier to
represent the victims of crime, and
(c) one is to be the Director-General of the Attorney
General's Department or an officer nominated by the
Director-General, and
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Schedule 1 Principal amendments
(d) one is to be the Senior Public Defender or an officer
nominated by the Senior Public Defender, and
(e) one is to be the Director of Public Prosecutions or an
officer nominated by the Director, and
(f) one is to be a former police officer nominated by the
Commissioner of Police.
(4) Schedule 2 has effect with respect to the members and
procedure of the Panel.
Note. Clause 4 of Schedule 2 enables the appointment of deputies of
members.
91 Functions and powers of DNA Review Panel
(1) The functions of the DNA Review Panel are as follows:
(a) to consider any application under this Division from an
eligible convicted person and to assess whether the
person's claim of innocence will be affected by DNA
information obtained from biological material specified
in the application,
(b) to arrange, if appropriate, searches for that biological
material and the DNA testing of that biological material,
(c) to refer, if appropriate, a case to the Court of Criminal
Appeal under this Division for review of a conviction
following the receipt of DNA test results,
(d) to make reports and recommendations to the Minister
on systems, policies and strategies for using DNA
technology to assist in the assessment of claims of
innocence (including an annual report of its work and
activities, and of statistical information relating to the
applications it received).
(2) In exercising its functions, the Panel is to have regard to the
following:
(a) the interests of and the consequences for any registered
victim of the offence to which the application to the
Panel relates,
(b) the need to maintain public confidence in the
administration of criminal justice in the State,
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Crimes (Appeal and Review) Amendment (DNA Review Panel) Bill 2006
Principal amendments Schedule 1
(c) the public interest,
(d) any other relevant matter.
(3) For the purpose of exercising its functions, the Panel may
engage persons to provide expert assistance to the Panel.
(4) The Panel may require the Commissioner of Police or other
public authority:
(a) to provide information about biological material
specified in an application under this Division
(including information about whether the material exists
or can be found), and
(b) to provide any such biological material in their
possession to the Panel.
(5) The Commissioner of Police or a public authority:
(a) is authorised and required to provide biological material
or information about any such material that the
Commissioner or authority is required to provide under
subsection (4), and
(b) is authorised to provide any other specified information
that the Panel requests in order to determine an
application under this Division.
(6) The Panel has such other functions as are conferred on it by or
under this or any other Act.
92 Applications to DNA Review Panel
(1) An application under this Division may be made to the DNA
Review Panel in writing by an eligible convicted person or by
any other person on the convicted person's behalf.
(2) The application is to specify the biological material from which
DNA information may be obtained to support the convicted
person's claim of innocence.
(3) If the Panel is satisfied that the application is made by or on
behalf of an eligible convicted person, it may (subject to this
Division):
(a) arrange searches for biological material specified in the
application and the DNA testing of that biological
material, and
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Crimes (Appeal and Review) Amendment (DNA Review Panel) Bill 2006
Schedule 1 Principal amendments
(b) prepare a report of its findings with respect to the
application.
93 Refusal or deferral of consideration
(1) The DNA Review Panel may refuse to consider or otherwise
deal with an application under this Division.
(2) Without limiting subsection (1), the Panel is to refuse to
consider or otherwise deal with an application if:
(a) it appears that the matter:
(i) has been fully dealt with in the proceedings
giving rise to the conviction (or in any
proceedings on appeal from the conviction), or
(ii) has previously been dealt with under this
Division, or
(iii) has previously been dealt with under Division 2
or 3 (or the corresponding provisions of the
previous review provisions), and
(b) the Panel is not satisfied that there are any special facts
or special circumstances to justify the taking of further
action under this Division.
(3) Without limiting subsection (1), the Panel is to refuse to
consider or otherwise deal with an application if it appears that
the biological material specified in the application does not
exist or cannot be found.
(4) The Panel may defer consideration of an application if:
(a) the time within which an appeal may be made against
the conviction (without leave to appeal out of time) is
yet to expire, or
(b) the conviction is the subject of appeal proceedings
(including proceedings on an application for leave to
appeal) that are yet to be finally determined, or
(c) the matter is being dealt with under Division 2 or 3, or
(d) the application fails to disclose sufficient information to
enable the matter to be properly considered.
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Crimes (Appeal and Review) Amendment (DNA Review Panel) Bill 2006
Principal amendments Schedule 1
94 Referral of matter to Court of Criminal Appeal
(1) The DNA Review Panel may refer a matter (together with a
copy of its report under section 92 (3) (b)) to the Court of
Criminal Appeal for consideration of the question of whether
the conviction should be set aside if the Panel is of the opinion
that there is a reasonable doubt as to the guilt of the convicted
person.
(2) The Panel cannot refer a matter to the Court of Criminal
Appeal unless the quorum present at the meeting of the Panel
when the decision is made includes the Chairperson and the
following members:
(a) the Senior Public Defender or the officer nominated by
the Senior Public Defender,
(b) the Director of Public Prosecutions or the officer
nominated by the Director.
(3) On receiving a reference under this section, the Court of
Criminal Appeal is to deal with the case so referred in the same
way as if the convicted person had appealed against the
conviction under the Criminal Appeal Act 1912.
(4) In any proceedings on a reference under this section:
(a) the Crown has the right of appearance, and
(b) the Court of Criminal Appeal is to consider:
(i) the report prepared by the Panel under section
92 (3) (b), and
(ii) any submissions on any such report that are
made by the Crown or by the applicant to whom
the proceedings relate, and
(c) no other evidence is to be admitted or considered,
except by leave of the Court of Criminal Appeal, and
(d) if leave to admit evidence is granted, the rules governing
the admissibility of evidence do not apply to the
proceedings.
(5) The convicted person is entitled to receive a copy of the report
of the Panel under section 92 (3) (b) for the purpose of
enabling the convicted person to make submissions on the
report as referred to in subsection (4) (b).
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Crimes (Appeal and Review) Amendment (DNA Review Panel) Bill 2006
Schedule 1 Principal amendments
95 Notification and secrecy provisions
(1) If an application is made under this Division by an eligible
convicted person, the DNA Review Panel is to notify:
(a) the applicant and the registered victims of the offence
concerned of any decision by the Panel to arrange
searches for and DNA testing of biological material with
respect to the application, and
(b) the applicant and those registered victims of the
determination of the Panel with respect to the
application.
The Panel may give such a notification by giving it to an
Australian legal practitioner who is representing the applicant
or registered victim.
(2) The Panel may also provide information about an application
under this Division:
(a) to the Commissioner of Police, the Police Integrity
Commission, the Independent Commission Against
Corruption, the Commissioner of Corrective Services or
the Director-General of the Department of Juvenile
Justice, or
(b) to the Minister or Chief Justice, or
(c) to any other person or body prescribed by the
regulations.
(3) A person must not disclose any information that was acquired
by the person as a member of the Panel (or as a person
engaged to assist the Panel) unless the disclosure is made for
the purpose of the exercise of functions under this Division or
in the circumstances authorised by this Division.
Maximum penalty: 100 penalty units or imprisonment for
2 years, or both.
(4) In this section, registered victim means a victim whose name
is recorded on the Register of Victims under the Crimes
(Administration of Sentences) Act 1999.
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Principal amendments Schedule 1
96 Duty of police and other State officers to retain biological material
evidence relating to eligible convicted persons
(1) This section applies to physical evidence comprising or
containing biological material:
(a) that was obtained by any member of NSW Police in
connection with the investigation or prosecution of the
offence for which an eligible convicted person was
convicted (but only if the person was convicted of an
offence punishable by imprisonment for life or for 20
years or more), and
(b) that is in the possession or control of any member of
NSW Police on the commencement of this section,
referred to in this section as relevant biological material.
(2) It is the duty of members of NSW Police (or members of any
other authority of the State) to retain relevant biological
material in their possession or control.
(3) However, that duty does not apply to relevant biological
material if:
(a) the material is required, by the order of any court, to be
returned to the person to whom the material belongs, or
(b) the owner of the material is the victim of the offence
concerned and the material is required to be returned
promptly to minimise inconvenience to the victim, or
(c) the material is of such size or nature as to render its
retention impracticable (but only if steps have been
taken to retain a portion of the material sufficient for
DNA testing), or
(d) the material has already been subject to DNA testing
and the testing indicates that it relates only to the
eligible convicted person concerned, or
(e) the eligible convicted person concerned ceases to be an
eligible convicted person, or
(f) the material is required by or under any Act to be given
to another person or destroyed.
(4) An authority of the State is not under a duty to retain biological
material if the material is given to a court or another authority
of the State and has not been returned.
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(5) A person who, knowing that relevant biological material is
required to be retained under this section, destroys or tampers
with the material with the intention of preventing the material
being subjected to DNA testing is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
97 Sunset provision
(1) The DNA Review Panel is abolished and ceases to have any
functions under this Division (and the duty imposed under
section 96 ceases) on:
(a) the seventh anniversary of the establishment of the
Panel, except as provided by paragraph (b), or
(b) a later date (being not later than the tenth anniversary of
the establishment of the Panel) appointed by
proclamation before that seventh anniversary and after
the review of this Division under subsection (2).
(2) The Minister is to review this Division to determine whether
the DNA Review Panel should continue to operate beyond the
seventh anniversary of its establishment. The review is to be
undertaken as soon as practicable after the fifth anniversary of
its establishment and the report of the outcome of that review
is to be tabled in each House of Parliament within 12 months
after that anniversary.
[2] Section 117A
Insert after section 78 (renumbered as section 117):
117A Proceedings for offences
Proceedings for an offence under this Act or the regulations
(other than under section 96) may be dealt with summarily
before a Local Court.
[3] Schedule 1 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Crimes (Appeal and Review) Amendment (DNA Review Panel)
Act 2006
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Crimes (Appeal and Review) Amendment (DNA Review Panel) Bill 2006
Principal amendments Schedule 1
[4] Schedule 1
Insert at the end of the Schedule (with appropriate Part and clause numbers):
Part Provisions consequent on enactment of
Crimes (Appeal and Review) Amendment
(DNA Review Panel) Act 2006
Definition
In this Part:
amending Act means the Crimes (Appeal and Review)
Amendment (DNA Review Panel) Act 2006.
Review of previous convictions and sentences
Part 7 of this Act, as inserted by the amending Act, extends to
convictions and sentences entered or imposed before the
commencement of that Part.
Pending applications under Part 13A of Crimes Act for review of
convictions and sentences
(1) A petition or application that was made under Part 13A of the
Crimes Act 1900 before the repeal and transfer of that Part by
the amending Act and that had not been finally determined
under that Part immediately before its repeal is taken to be a
petition or application under the corresponding provision of
Part 7 of this Act.
(2) Any referral or report with respect to such a petition or
application that was made under Part 13A of the Crimes Act
1900 is taken to have been made under the corresponding
provision of Part 7 of this Act.
Pending applications to set aside conviction following free
pardon
An application to the Court of Criminal Appeal that was made
under Part 13A of the Crimes Act 1900 before the repeal and
transfer of that Part by the amending Act for the purpose of
setting aside a conviction for an offence for which a free
pardon has been granted and that had not been finally
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Crimes (Appeal and Review) Amendment (DNA Review Panel) Bill 2006
Schedule 1 Principal amendments
determined under that Part immediately before its repeal is
taken to be an application under section 84 of this Act.
[5] Schedule 2
Insert after Schedule 1:
Schedule 2 Members and procedure of DNA
Review Panel
(Section 90)
1 Definitions
In this Schedule:
Chairperson means the Chairperson of the Panel.
member means any member of the Panel.
Panel means the DNA Review Panel constituted by section 90.
2 Terms of office of members
Subject to this Schedule, a member holds office for such period
(not exceeding 3 years) as is specified in the member's
instrument of appointment, but is eligible (if otherwise
qualified) for re-appointment.
3 Remuneration
A member is entitled to be paid such remuneration (including
travelling and subsistence allowances) as the Minister may
from time to time determine in respect of the member.
4 Deputies
(1) The Minister may, from time to time, appoint a person to be the
deputy of a member, and the Minister may revoke any such
appointment.
(2) A person is not eligible to be appointed as the deputy of a
member unless the person has the same qualification that was
required for appointment as that member.
(3) In the absence of a member, the member's deputy may, if
available, act in the place of the member.
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Crimes (Appeal and Review) Amendment (DNA Review Panel) Bill 2006
Principal amendments Schedule 1
(4) While acting in the place of a member, a person:
(a) has all the functions of the member and is taken to be a
member, and
(b) is entitled to be paid such remuneration (including
travelling and subsistence allowances) as the Minister
may from time to time determine in respect of the
person.
(5) For the purposes of this clause, a vacancy in the office of a
member is taken to be an absence of the member.
5 Vacancy in office of member
(1) The office of a member becomes vacant if the member:
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to
the Minister, or
(d) is removed from office by the Governor under this
clause, or
(e) is absent from 4 consecutive meetings of the Panel of
which reasonable notice has been given to the member
personally or by post, except on leave granted by the
Minister or unless the member is excused by the
Minister for having been absent from those meetings, or
(f) becomes bankrupt, applies to take the benefit of any law
for the relief of bankrupt or insolvent debtors,
compounds with his or her creditors or makes an
assignment of his or her remuneration for their benefit,
or
(g) becomes a mentally incapacitated person, or
(h) is convicted in New South Wales of an offence that is
punishable by imprisonment for 12 months or more or
is convicted elsewhere than in New South Wales of an
offence that, if committed in New South Wales, would
be an offence so punishable.
(2) The Governor may at any time remove a member from office.
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6 Filling of vacancy in office of member
If the office of any member becomes vacant, a person is,
subject to this Act, to be appointed to fill the vacancy.
7 Effect of certain other Acts
(1) Chapter 1A of the Public Sector Employment and Management
Act 2002 does not apply to or in respect of the appointment of
a member.
(2) If by or under any Act provision is made:
(a) requiring a person who is the holder of a specified office
to devote the whole of his or her time to the duties of
that office, or
(b) prohibiting the person from engaging in employment
outside the duties of that office,
the provision does not operate to disqualify the person from
holding that office and also the office of a member or from
accepting and retaining any remuneration payable to the person
under this Act as a member.
8 General procedure
The procedure for the calling of meetings of the Panel and for
the conduct of business at those meetings is, subject to this Act
and the regulations, to be as determined by the Chairperson.
9 Quorum
The quorum for a meeting of the Panel is 4 members, of whom
one must be the Chairperson.
10 Presiding member
(1) The Chairperson is to preside at a meeting of the Panel.
(2) The presiding member has a deliberative vote and, in the event
of an equality of votes, has a second or casting vote.
11 Voting
(1) A decision supported by a majority of the votes cast at a
meeting of the Panel at which a quorum is present is the
decision of the Panel.
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Crimes (Appeal and Review) Amendment (DNA Review Panel) Bill 2006
Principal amendments Schedule 1
(2) This clause is subject to section 94 (Referral of matter to Court
of Criminal Appeal).
12 Transaction of business outside meetings or by telephone
(1) The Panel may, if it thinks fit, transact any of its business by
the circulation of papers among all the members of the Panel
for the time being, and a resolution in writing approved in
writing by a majority of those members is taken to be a
decision of the Panel.
(2) The Panel may, if it thinks fit, transact any of its business at a
meeting at which members (or some members) participate by
telephone, closed-circuit television or other means, but only if
any member who speaks on a matter before the meeting can be
heard by the other members.
(3) For the purposes of:
(a) the approval of a resolution under subclause (1), or
(b) a meeting held in accordance with subclause (2),
the Chairperson and each member have the same voting rights
as they have at an ordinary meeting of the Panel.
(4) A resolution approved under subclause (1) is, subject to the
regulations, to be recorded in the minutes of the meetings of the
Panel.
(5) Papers may be circulated among the members for the purposes
of subclause (1) by facsimile or other transmission of the
information in the papers concerned.
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Crimes (Appeal and Review) Amendment (DNA Review Panel) Bill 2006
Schedule 2 Amendment of other Acts
Schedule 2 Amendment of other Acts
(Section 4)
2.1 Crimes Act 1900 No 40
[1] Part 13A Review of convictions and sentences
Omit the Part.
Transfer Divisions 2, 3, 4 and 5 of that Part to the Crimes (Local Courts
Appeal and Review) Act 2001 with the following amendments, as
Divisions 2, 3, 4 and 5 of Part 7 of that Act (as inserted by this Act), with
sections numbered consecutively starting from section 76 and with
cross-references to sections of that Part in those transferred provisions
renumbered accordingly.
[2] Part 13A, Divisions 25
Omit "prescribed person" and "prescribed person's" wherever occurring.
Insert instead "judicial officer" and "judicial officer's" respectively.
[3] Sections 474C (3) (a) (ii) and 474E (3) (a) (ii)
Omit "the repealed provisions" wherever occurring.
Insert instead "the previous review provisions".
[4] Section 474J (4)
Insert "(or so dealt with under the corresponding previous review
provisions)" after "section 474H (2)".
[5] Second Schedule
Omit ", 12 and 13A". Insert instead "and 12".
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Crimes (Appeal and Review) Amendment (DNA Review Panel) Bill 2006
Amendment of other Acts Schedule 2
2.2 Crimes (Forensic Procedures) Act 2000 No 59
[1] Section 92 Use of information on DNA database system
Omit "Part 13A of the Crimes Act 1900" from section 92 (2) (f).
Insert instead "Part 7 of the Crimes (Appeal and Review) Act 2001".
[2] Section 109 Disclosure of information
Omit "Part 13A of the Crimes Act 1900" from section 109 (2) (e).
Insert instead "Part 7 of the Crimes (Appeal and Review) Act 2001".
Page 19
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