Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The objects of this Bill are as follows:

(a) to amend the Crimes (Appeal and Review) Act 2001 (the principal Act) so as:

        (i) to allow an appeal court to set aside a conviction for the purpose of
making an order under section 10 of the Crimes (Sentencing Procedure)
Act 1999, and
        (ii) to make it clear that a person may appeal against both a conviction and
sentence, and
        (iii) to provide that an appeal against conviction is to be by way of rehearing
on the evidence given in the original Local Court proceedings rather
than on the basis of certified transcripts, and
        (iv) to enable an appeal court to remit certain matters to the original Local
Court on an appeal, and
        (v) to provide that an appeal against certain suspensions and
disqualifications of driver licences does not automatically result in the
stay of the suspensions or disqualifications, and

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        (vi) to remove the current requirement that an appeal court direct that costs
be paid to the registrar of a Local Court, and
        (vii) to require appeals made to the Land and Environment Court to be
lodged with the Registrar of that Court rather than with the registrar of
a Local Court,

(b) to amend the Crimes (Domestic and Personal Violence) Act 2007 so as:

        (i) to require the District Court on certain appeals against orders made
under that Act to make interim apprehended domestic violence orders
or interim apprehended personal violence orders (as the case requires),
and
        (ii) to allow a person who has had an application for an apprehended
violence order dismissed in their absence to apply for the annulment of
that dismissal,

(c) to amend the Criminal Procedure Act 1986 to enable certain accused persons
to rely on written pleas instead of attending personally at certain Local Court
hearings,

(d) to amend the Crimes (Domestic and Personal Violence) Act 2007, the Local
Courts Act 1982 and the Local Court Act 2007 to make it clear that the
provisions of the principal Act relating to appeals against conviction apply to
certain appeals under those Acts.

The amendments described above give effect to recommendations that were made in
the report tabled in Parliament in September 2008 as a result of a review of the
principal Act carried out under section 120 of that Act.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act.

Schedule 1 Amendment of Crimes (Appeal and
Review) Act 2001 No 120
Schedule 1 [1] amends section 3 of the principal Act to provide that, when varying
a sentence, an appeal court may set aside a conviction for the purpose of making an
order under section 10 of the Crimes (Sentencing Procedure) Act 1999. The setting
aside of any such conviction for that purpose does not set aside the finding of guilt
that gave rise to that conviction.

Schedule 1 [2] amends section 11 of the principal Act to make it clear that a person
may appeal against both a conviction and the sentence imposed in relation to that
conviction.

Currently, section 11A of the principal Act allows a person who is sentenced while
not present at the Court to apply for the annulment of the sentence and, if the

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Explanatory note
annulment is not granted, the person may appeal to the District Court against the
refusal to grant the annulment of the sentence.

Schedule 1 [3] amends section 11 of the principal Act to provide that a person who
has an application for the annulment of a sentence dismissed by the Local Court may
appeal to the District Court against the sentence rather than appealing against the
refusal to grant the annulment. Schedule 1 [4] amends section 11A of the principal
Act to remove the right to appeal against the Local Court’s refusal to grant the
annulment of a sentence. Schedule 1 [5] makes a consequential amendment.

Schedule 1 [6] amends section 18 of the principal Act to make it clear that an appeal
to the District Court against a conviction is to be by way of rehearing on the evidence
that was before the original court rather than on the basis of certified transcripts of
the original proceedings. Schedule 1 [10] makes a similar amendment to section 37
of the principal Act in relation to an appeal to the Land and Environment Court
against a conviction. Schedule 1 [7] and [11] make consequential amendments.

Currently, section 20 of the principal Act provides that the District Court may
determine an appeal against conviction by setting aside the conviction or by
dismissing the appeal. Schedule 1 [8] amends that section to allow the District Court
to determine such an appeal by remitting the matter back to the original Local Court
for redetermination where the conviction was made in the accused person’s absence.

The amendment also provides that the District Court may issue directions in relation
to the redetermination of the matter by the Local Court. Schedule 1 [12] makes a
similar amendment to section 39 of the principal Act in relation to the Land and
Environment Court’s determination of an appeal against conviction.

Schedule 1 [9] and [13] amend sections 34 and 44 of the principal Act, respectively,
to provide that an appeal to the Land and Environment Court is to be lodged with the
Registrar of the Land and Environment Court rather than the registrar of a Local
Court.

Schedule 1 [14] amends section 48 of the principal Act to provide that the Land and
Environment Court may determine an appeal against an order referred to in section
42 (2B) of the principal Act by setting aside the order and making some other order,
by setting aside the order and remitting the matter to the Local Court or by dismissing
the appeal.

Section 63 of the principal Act provides that, on the lodgment of an appeal, certain
sentences and penalties are automatically stayed until the appeal is finally
determined. Schedule 1 [15] amends that section to provide that the automatic stay
does not apply in respect of the suspension or disqualification of a driver licence if
the licence was, immediately before the suspension or disqualification, suspended
under Division 4 of Part 5.4 of the Road Transport (General) Act 2005 for the
offence to which the appeal relates. The proposed amendment to section 63 of the
principal Act also provides that the appeal court may order that any such suspension
or disqualification be stayed if the court considers it appropriate in the circumstances.

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Schedule 1 [16] amends section 72 of the principal Act to remove the requirement
that, on making an order for costs, an appeal court must direct that the costs be paid
to the registrar of the original Local Court to allow the Court to direct that costs are
to be paid directly to the other party to the proceedings.

Schedule 1 [17] amends clause 1 of Schedule 1 to the principal Act to enable the
Governor to make regulations of a savings and transitional nature consequent on the
enactment of the proposed Act.

Schedule 1 [18] inserts a new Part in Schedule 1 to the principal Act containing a
provision of a transitional nature consequent on the enactment of the proposed Act.

Schedule 2 Amendment of other Acts
Schedule 2.1 Crimes (Domestic and Personal Violence) Act 2007 No 80
Currently, section 84 of the Crimes (Domestic and Personal Violence) Act 2007
provides that an application for the annulment of an apprehended violence order
made by the Local Court or Children’s Court, or an appeal against a conviction or
sentence, is to be made in the same way as an application for the annulment of a
conviction or sentence, or appeal against a conviction or sentence, is made under the
Crimes (Appeal and Review) Act 2001.

Schedule 2.1 [1] amends section 84 of the Crimes (Domestic and Personal Violence)
Act 2007 to make it clear that such an application or appeal is to be made in the same
way as an application for the annulment of a conviction, or appeal against a
conviction, is made under the Crimes (Appeal and Review) Act 2001, rather than in
the same way as an application for the annulment of a sentence, or appeal against a
sentence, under that Act.

Schedule 2.1 [2] amends section 84 of the Crimes (Domestic and Personal Violence)
Act 2007 to allow a person who has had an application for an apprehended violence
order dismissed to apply for the annulment of the dismissal, but only if the person
was not in attendance when the application was dismissed.

Schedule 2.1 [3] amends section 84 of the Crimes (Domestic and Personal Violence)
Act 2007 to provide that, if the District Court allows an appeal against the refusal to
annul an apprehended violence order and remits the matter to the Local Court, the
District Court is to make an interim apprehended domestic violence order or interim
apprehended personal violence order unless the Court is satisfied that it is not
necessary to do so.

Schedule 2.2 Criminal Procedure Act 1986 No 209
Schedule 2.2 amends section 182 of the Criminal Procedure Act 1986 to provide that
a person who submits a written plea under that section not later than 7 days before
the date that the person is required to attend a Local Court is not required to attend
the Court on that date and is taken to have attended the Court on that date.

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Schedule 2.3 Local Court Act 2007 No 93
Schedule 2.3 amends section 70 of the Local Court Act 2007 to provide that an
application for an annulment in relation to an order, or an appeal against an order, is
to be made in the same way as an application for the annulment of a conviction, or
appeal against a conviction, is made under the Crimes (Appeal and Review) Act 2001.

Currently, such an application or appeal is to be made in the same way as an
application for the annulment of a sentence, or an appeal against a sentence.

Schedule 2.4 Local Courts Act 1982 No 164
Schedule 2.4 amends section 64 of the Local Courts Act 1982 to provide that an
application for an annulment in relation to an order, or an appeal against an order, is
to be made in the same way as an application for the annulment of a conviction, or
appeal against a conviction, is made under the Crimes (Appeal and Review) Act 2001.

Currently, such an application or appeal is to be made in the same way as an
application for the annulment of a sentence, or an appeal against a sentence.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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