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Bill 1995
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The object of this Bill is to make miscellaneous amendments to the
following Acts relating to criminal law and procedure:
Bail Act 1978
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Drug Misuse and Trafficking Act 1985
Traffic Act 1909.
The amendments are explained below in detail in relation to each Act
amended.
Clause 2 provides for the commencement of the proposed Act on a day or
days to be appointed by proclamation.
Clause 3 gives effect to Schedule 1 which contains amendments to the
Acts listed above.
Schedule 1 Amendment of Acts
Bail Act 1978
Presumption in favour of bail
Section 9 of the Bail Act 1978 lists various exceptions to the presumption
that bail ought generally to be available to a person who is in custody as a
consequence of having been charged with an offence. The presumption in
favour of the grant of bail is to be removed where the accused is charged
with conspiring to murder, attempted murder or sending a document
threatening to kill or inflict bodily harm on a person. Accordingly, section 9
of the Bail Act I978 is to be amended to exclude the application of the
presumption to sections 2631, inclusive, of the Crimes Act 1900.
(Schedule 1.1 (1))
Review of bail conditions
Section 48A of the Bail Act 1978 was inserted by the Bail (Amendment) Act
1989 and commenced on 25 March 1990. The object of the section was to
confer a right of review of bail conditions by a court (in addition to the right
to a general review of bail) if the accused was in custody because the
accused could not satisfy or had breached a bail condition. Applications to
review bail were encouraged to reduce the jail remand population. The
original decision to set bail at a particular level could be reviewed if the
accused was unable to raise bail. The special limited right to the review of a
bail condition was to be exercised by the court that imposed the bail
condition, principally Local Courts. It was not intended that the special right
to review bail conditions would replace or affect the general right to apply
for a review of the bail decision. Section 48A ( 6 ) sought to make that clear.
Because section 45 of the Bail Act 1978 authorises the Supreme Court to
review the bail decisions of any other court and because of the availability of
other avenues of review and the minor nature of the limited review of a bail
condition, section 48A (5) was inserted to ensure that the Supreme Court
was not required to conduct a limited review of bail set by another court.
Explanatory note page 2
In two unreported decisions of the Supreme Court, R v McCullough (6 July
1993) and R v Gunton (15 September 1993), doubt has been expressed as to
the relationship between subsections (5) and (6) of section 48A. The
amendments are intended to make it clear that the Supreme Court is not
required to undertake the review of a bail condition imposed by another
court.
The amendments extend to applications and requests made to the Supreme
Court but not determined by it before the commencement of the
amendments. (Schedule 1.1 (2) and (3))
Savings and transitional provisions
The Schedule of savings and transitional provisions to the Bail Act 1978 is
amended as a consequence of the amendments described above.
(Schedule 1.1 (4))
Crimes Act 1900
Act of indecency
Section 61N of the Crimes Act 1900 provides that:
Any person who commits an act of indecency with or towards a person
under the age of 16 years, or incites a person under that age to an act of
indecency with or towards that or another person, is liable to imprisonment
for 2 years.
An act of indecency is one that right-minded persons would consider to be
contrary to community standards of decency. An example is indecent
exposure. The age restriction contained in section 61N prevents the
prosecution of a person who acts indecently towards an adult. The section is
to be amended to provide that where the act of indecency involves a victim
of or above the age of 16 years the offender will be liable to a maximum
penalty of 18 months' imprisonment. (Schedule 1.2 (2))
A corresponding amendment is made to section 61O which deals with acts
of indecency committed in circumstances of aggravation. The maximum
penalty in that case will be imprisonment for 3 years. (Schedule 1.2 (3))
Section 77 of the Crimes Act 1900 is also to be amended to allow the
defence of consent to apply if the victim (in either a section 61N or a
section 61O case) is of or above the age of 16 years. (Schedule 1.2 (4) and
(5))
Schedule 1.2 (1), (15) and (16) and Schedule 1.4 (3) and (4) make
consequential amendments.
Explanatory note page 3
Extension of circumstances of aggravation for the offence of
burglary
Section 105A of the Crimes Act 1900 lists circumstances of aggravation in
the commission of offences of sacrilege and housebreaking. The penalty for
the offence is greater if it is committed in circumstances of aggravation.
Those circumstances are extended to include circumstances where the
offender knew or was reckless as to whether persons were present in the
premises in the commission of the offence. (Schedule 1.2 (6) and (7))
Corrupt practices--police officers
Part 4A of the Crimes Act 1900 deals with corruptly receiving commissions
and other corrupt practices. Section 249A is being amended to avoid doubt
that the Part applies to police officers. (Schedule 1.2 (8))
Harm to witnesses and jurors
It is an offence under Chapter 3 of Part 7 of the Crimes Act 1900
(Interference with judicial officers, witnesses, jurors etc), sections 320326,
to harm a witness or juror or a potential witness or juror. In a recent incident
outside the Downing Centre Local Court, a person was attacked outside the
courtroom following the close of a case when no further witnesses could be
called. It appeared that the assailant was seeking to punish the person for
having been willing to attend as a witness. At the time the attack occurred,
the victim had not been a witness and had ceased to be a potential witness.
Subsequently, the Court of Criminal Appeal decided on 22 May 1995, in the
case of R v Lansdell, that a person need not be a witness or be called as a
witness in order to come within the provisions. It also recognised that the
test as to a person's status might relate solely to the understanding and
intention of the accused. Sections 325 and 326 of the Crimes Act 1900 are to
be amended to extend the provisions of Chapter 3 of Part 7 to protect
persons who may have been but were not called as witnesses if the accused
believed they may have been called as witnesses. (Schedule 1.2 (9), (10))
Forensic samples
Section 353A of the Crimes Act 1900 sets out the circumstances in which a
person in lawful custody upon a charge of committing a crime or offence
may be subjected to medical examination.
The section is amended to provide that
*
samples of the person's blood, saliva and hair may be taken
*
evidence from the samples may only be used in proceedings
concerning the crime or offence for which the samples were taken
Explanatory note page 4
*
the samples must be destroyed as soon as practicable after the
conclusion of those proceedings
*
the place of custody is not restricted to a police station
*
samples may be taken without the consent of the person in lawful
custody. (Schedule 1.2 (1 1))
The amendments extend to a person who is in lawful custody when the
amendments commence. (Schedule 1.2 (24), clause 15)
Use of depositions by the prosecution
Section 409 of the Crimes Act 1900 enables the deposition of a witness
given in committal proceedings and certain statements of witnesses given
under the Justices Act 1902 to be read as evidence for the prosecution at the
trial of the accused upon proof on oath "that the witness is dead, or so ill as
not to be able to travel or to give evidence, or is absent from Australia...". In
R v Brotherton (1993) NSWLR 95, the Court of Criminal Appeal held that
section 409 did not allow the evidence of a witness to be admitted where the
evidence could not be given without a risk of endangering his or her life.
That is, the risk faced in giving evidence was not a relevant factor to be
taken into consideration. Section 409 is being amended to enable this factor
to be taken into account. (Schedule 1.2 (12) and (13))
Inspection of red light cameras
Section 4DA (3) (b) of the Traffic Act 1909 and section 414A (6) (b) of
the Crimes Act 1900 provide for the acceptance of photographs taken by a
red light camera as prima facie evidence of an offence, provided that an
inspection of the camera was carried out within 48 hours of the time
recorded on the photographs. The effect of the sections is to require
inspection of each red light camera every 48 hours. The inspection period is
being increased to 84 hours. (Schedule 1.2 (14) and Schedule 1.6)
Time for commencing prosecutions relating to unlawful
custody of motor vehicles
Section 527C of the Crimes Act 1900 makes it an offence to give custody of
property to a person who is not entitled to it. Under section 56 of the
Justices Act 1902, a prosecution for the offence must be commenced within
6 months after the date of disposal of the property. The 6-month period is
being extended to 2 years in the case of stolen motor vehicles in order to
enable the police adequate time in which to complete their investigations.
(Schedule 1.2 (1 7))
Explanatory note page 5
Apprehended violence orders--validation of orders
Part 15A of the Crimes Act 1900 deals with apprehended violence orders.
The Part is to be amended to provide that if an apprehended violence order
is mistakenly made against juveniles in the Local Court and if an interstate
restraint order is mistakenly registered in the wrong court, the orders will not
be rendered invalid on that account. Although the Local Court has no
jurisdiction to make an apprehended violence order against a defendant who
is under 18 years of age, such an order might be made in the Local Court if
the Local Court is under the mistaken belief that a person is 18 years or over.
The apprehended violence order would then be void. Furthermore, restraint
orders made interstate can be enforced in New South Wales upon registration
with the "appropriate court". The appropriate court is a Local Court if the
defendant is 18 years of age or over and the Children's Court if the
defendant is less than 18 years of age. It is conceivable that mistakes could
also be made as to age in these circumstances, thus invalidating the
registration of the apprehended violence order.
The proposed amendments to section 562G and 562U will ensure that where
an apprehended violence order is made or registered in the Local Court upon
the assumption that the defendant had or had not reached a particular age,
the order will not be rendered invalid for that reason. (Schedule 1.2 (1 8) and
(21))
The amendments are to apply to orders whenever made. (Schedule 1.2 (24),
clauses 16 and 18)
Assessment of offenders who have contravened an
apprehended violence order
Section 562I of the Crimes Act 1900 provides for the offence of
contravening an apprehended violence order. Subsection (2B) of that section
provides for a Local Court to consider a "full psychiatric assessment"
before imposing a sentence of imprisonment on persons convicted under
section 562I where the act constituting the offence was an act of violence.
The subsection is being amended to provide that a "full psychological
assessment" may be considered by the court as an alternative to a "full
psychiatric assessment". (Schedule 1.2 (1 9))
ended violence orders--expiry of arrest warrants
Section 562K of the Crimes Act 1900 allows an authorised justice to issue a
warrant for the arrest of the defendant where a complaint is made for an
apprehended violence order. As first instance warrants remain current for
several years, a defendant may be arrested despite the earlier resolution of
Explanatory note page 6
the domestic situation. To avoid the unnecessary deprivation of the
defendant's liberty and the waste of police and court time in such a situation,
first instance warrants are to automatically expire after 12 months. A fresh
complaint for an apprehended violence order may be made if necessary.
(Schedule 1.2 (20))
The amendments are to apply to warrants whenever issued. (Schedule 1.2
(24), clause 17)
Disclosure of addresses and telephone numbers of witnesses
The Crimes Act 1900 is to be amended by the insertion of proposed
section 577A to provide that a witness in criminal proceedings is not
required to disclose his or her address or telephone number unless it is a
materially relevant part of the evidence or the court makes an order requiring
the disclosure. Such an order can only be made if the court is satisfied that
the disclosure is not likely to present a reasonably ascertainable risk to the
welfare or protection of any person or that the interests of justice outweigh
any such risk. (Schedule 1.2 (22))
Abolition of common law offences of eavesdropping and
being a common scold
The common law is the unwritten law as distinct from the written or statute
law. Included among common law offences are the offences of
eavesdropping and being a common scold. `"Eavesdropping" involves the
act of listening through walls or under windows (within the eaves' drop) to
private conversations for the purpose of spreading scandals. A "common
scold" is a troublesome woman who, by brawling and wrangling with her
neighbours, breaks the public peace, increases discord and becomes a public
nuisance to the neighbourhood. These offences have become obsolete. There
is no record of them having been prosecuted in New South Wales this
century.
Proposed section 580B abolishes these offences but not so as to affect any
offences that may have been committed before the commencement of the
proposed section. (Schedule 1.2 (23) and (24), clause 19)
Criminal Appeal Act 1912
Decisions of the Court of Criminal Appeal in R v Puena (15 August 1992)
and R v Hallocoglu (1 September 1992) have drawn attention to the
difficulty of sentencing respondents to Crown appeals in their absence. The
Criminal Appeal Act 1912 is to be amended by the insertion of proposed
section 14A to enable the Court of Criminal Appeal to deal with Crown
appeals in the absence of the respondent as long as the Court is satisfied that
Explanatory note page 7
the respondent has been given notice of the appeal and that it would not be
unjust to deal with the appeal in the absence of the respondent.
(Schedule 1.3)
Criminal Procedure Act 1986
Section 32 of the Criminal Procedure Act 1986 permits an accused person in
criminal proceedings in the Supreme Court or District Court to dispense with
a jury and elect instead to be tried by a judge alone. An election may only be
made with the consent of the prosecutor. As administrative problems have
been encountered in contacting the particular prosecutor in order to obtain
his or her consent, section 32 is to be amended to enable the Director of
Public Prosecutions (or the Director's delegate) to consent to the election.
(Schedule 1.4 (1))
The amendment made to section 33J of the Criminal Procedure Act 1986 is
consequential on the insertion of section 33AA into the Drug Misuse and
Trafficking Act 1985. (Schedule 1.4 (2))
The amendments made to section 33K and Table 2 to Part 9A of the
Criminal Procedure Act 1986 are Consequential on the amendments to the
Crimes Act 1900 concerning acts of indecency. (Schedule 1.4 (3) and (4))
Drug Misuse and Trafficking Act 1985
Equipment for use in administration of a prohibited drug
Section 11 of the Drug Misuse and Trafficking Act 1985 makes it an offence
to have possession of an item of equipment for use in the administration of a
prohibited drug. In order that no one, including a health worker, is exposed
to the risk of prosecution, the section does not apply to hypodermic syringes
or hypodermic needles. The section is being amended to provide that it will
not apply to "any item of equipment that is required to minimise health risks
associated with the intravenous administration of a prohibited drug" such as
alcohol swabs, spoons and infusion sets if the equipment is in the possession
of persons identified in regulations to be made under the Act. It is proposed
that the regulations will identify only health workers. (Schedule 1.5 (1))
A consequential amendment to the Criminal Procedure Act 1986 is made by
Schedule 1.4 (2).
Penalties for offences involving supply to persons under 16
years
Section 25 of the Drug Misuse and Trafficking Act 1985 is being amended
to make it an offence for a person who is 18 years of age or older to supply
prohibited drugs (other than cannabis leaf) to a person who is under 16 years
Explanatory note page 8
of age. This amendment is made so as to enable an increased penalty to be
applied for these offences. The increased penalty is provided for in proposed
section 33AA. The increased penalty, whether imprisonment or a fine, is
generally one-fifth higher than the penalty that would otherwise apply.
(Schedule 1.5 (2), (3) and (6))
Schedule 1.5 (4) and (5) make consequential amendments.
Traffic Act 1909
The same amendment is being made to section 4DA of the Traffic Act 1909
as that made to section 414A of the Crimes Act 1900 to enable the
inspection of red light cameras to be carried out within 84 hours instead of
48 hours. (Schedule 1.6)
Explanatory note page 9