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1997
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Bail Act 1978
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Justices Act 1902
Listening Devices Act 1984
The amendments are explained in detail below in relation to each Act
amended.
Explanatory note
Clause 2 provides for the commencement of the proposed Act on a day or
days to be appointed by proclamation.
Clause 3 is a formal provision giving effect to the Schedule which contains
amendments to the Acts listed above.
Schedule 1
Amendment of Acts
Bail Act 1978
Section 6 of the Bail Act 1978 enables bail to be granted under the Act in
respect of the periods set out in the section. The proposed amendment
(Schedule 1.1 [2]) will enable bail to be granted to a person during the
following periods:
the period between the making and hearing of an application to annul a
conviction under section 100A of the Justices Act 1902,
the period between the referral of a conviction under section 100B of
the Justices Act 1902 and the hearing of the matter referred,
the period between the annulment of a conviction under section 100A
or 100B of the Justices Act 1902 and the rehearing of the information
in respect of which the conviction was made,
the period between an application for review under section 45 of the
Children (Criminal Proceedings) Act 1987 of a decision in respect of
an offence and the determination of the application,
the period between the determination of an application for review
under section 45 of the Children (Criminal Proceedings) Act 1987 of a
decision in respect of an offence and any further proceedings on the
information laid or complaint made in relation to the offence.
Schedule 1.1 [ l ] contains a consequential amendment.
Schedule 1.1 [3] contains a transitional provision.
Explanatory note page 2
Crimes Act 1900
Offenders who are minors
Section 61 S of the Crimes Act 1900 currently provides that, for the purposes
of sections 61H-61U of that Act, a person is not, by reason only of age, to be
presumed incapable of having sexual intercourse, or intent to have sexual
intercourse, with another person. The provision has the effect of abolishing
the common law presumption that a boy under 14 years of age is incapable of
sexual intercourse in relation to the sexual assault offences referred to in
sections 6 1H-61U (offences in the nature of rape and other offences relating
to sexual assault). The proposed amendment will extend the application of
section 61S to other offences where the presumption might otherwise apply
(for example, offences under sections 66A-66D of having sexual intercourse
with children under 10, or between 10 and 16, years of age (Schedule 1.2
[1]).
Time for commencing prosecutions relating to unlawful
access to data in a computer
Section 309 (1) of the Crimes Act 1900 makes it an offence for a person,
without authority or lawful excuse, to intentionally obtain access to a
program or data stored in a computer. As the offence is a summary offence,
section 56 of the Justices Act 1902 requires any prosecution for the offence to
be commenced within 6 months after the date the program or data is
accessed. The proposed amendment will extend the 6-month period to 2 years
in order to enable adequate time for the detection of such offences (Schedule
1.2 [2]).
Prosecutions for concealing a serious offence
Section 3 16 ( 1 ) of the Crimes Act 1900 makes it an offence for a person who
knows or believes that a serious offence has been committed and that he or
she has information that might be of material assistance in securing the
apprehension of the offender or the prosecution or conviction of the offender
to fail, without reasonable excuse, to bring the information to the attention of
the police or another appropriate authority. Proposed section 316 (4) will
require the approval of the Attorney General to be obtained before a
prosecution for an offence against the subsection is commenced against a
person who has formed the knowledge or belief that an offence has been
committed or obtained the information referred to in the subsection in the
Explanatory note page 3
Explanatory note
course of practising or following a profession, calling or vocation prescribed
by the regulations. A regulation could be made to cover, for example,
lawyers, doctors, nurses or social workers. Proposed section 3 16 (5) enables
the making of the regulation (Schedule 1.2 [3]).
Orders for taking of photographs, finger-prints and other
particulars
Section 353A (4) of the Crimes Act 1900 enables a court that finds an offence
specified by section 353A (7) proven against a person to order the person to
submit to the taking of any particulars necessary for the identification of the
person, including the person's photograph or finger-prints. At present the
specified offences include certain driving offences under the Traffic Act 1909
but do not include the offence of negligently driving a motor vehicle on a
public street occasioning death or grievous bodily harm. The proposed
amendment will enable an order to be made when such an offence is proven
(Schedule 1.2 [4]).
Autrefois convict and autrefois acquit
The special pleas of autrefois convict and autrefois acquit assert that the
accused person has already been convicted or acquitted of the offence with
which he or she is charged. Currently the issue is determined by a jury. The
proposed amendment provides for such pleas, which almost always involve
complex matters of law, to be determined by a judge and not a jury (Schedule
1.2 [5]).
Savings and transitional provisions
Schedule 1.2 [6] contains savings and transitional provisions relating to the
amendments to the Crimes Act 1900 described above.
Criminal Appeal Act 1912
Crown appeal against sentence where related summary
offences are dealt with under Part 10 of the Criminal
Procedure Act 1986
Sections 5AA and 5AD of the Criminal Appeal Act 1912 provide a right of
appeal against conviction and sentence to a person convicted by the Supreme
Court or District Court in the exercise of its jurisdiction to deal with related
summary offences under Part 10 of the Criminal Procedure Act 1986
Explanatory note page 4
Explanatory note
(described in more detail below in relation to the amendments to that Act
contained in Schedule 1.4 [4]-[7]). However, the Crown currently has no
right of appeal against an inadequate sentence imposed by the Supreme Court
or District Court in the exercise of that jurisdiction.
Proposed section 5DB will confer such a right of appeal. The powers
conferred on the Court of Criminal Appeal in respect of such an appeal are
broadly similar to those conferred by section 13 l AB of the Justices Act 1902
(Schedule 1.3 [l]).
Schedule 1.3 [2]-[4] makes consequential amendments.
The proposed amendments will not apply to any appeal from a decision made
in proceedings in respect of an offence committed before the commencement
of the amendments (Schedule 1.3 [6]).
Powers of judge sitting alone
Section 22 of the Criminal Appeal Act 1912 sets out the powers that a judge
of the Court of Criminal Appeal sitting alone may exercise in the same
manner as they may be exercised by the Court, and subject to the same
provisions. The proposed amendment adds to the powers already listed the
power to dismiss an appeal as incompetent (Schedule 1.3 [5]).
Criminal Procedure Act 1986
Procedure for dealing with related summary matters
Accused persons who are charged with indictable offences may also be
charged with summary offences relating to the same matter ("related
summary offences"). Such charges are commonly called "back up charges"
and may be proceeded with after the indictable offence has been dealt with.
A related summary offence is defined in Part 10 of the Criminal Procedure
Act 1986 as a summary offence that is capable of being dealt with by a Local
Court that arises from substantially the same circumstances as those from
which the indictable offence arose.
Part 10 currently gives the Supreme Court and District Court a discretion, at
the end of the trial for the indictable offence, to dispose of related summary
offences without the jury (but only if both the prosecuting authority and the
accused person consent). The Supreme Court or District Court deals with the
related summary offence as if it were a Local Court. If the Courts do not
exercise the discretion the matter will be heard by a Local Court.
Explanatory note page 5
Part 10 provides no mechanism to assist a Court to decide which related
summary offences might be dealt with under Part 10 or to distinguish the
charges for related summary offences that cannot lead to a conviction if the
person is convicted of the indictable offence concerned because of the
overlap in the elements of the indictable and summary offences.
The proposed amendments insert a definition of the latter category of
offences ("back up summary offences") and distinguishes these from related
summary offences as currently defined.
The proposed amendments will require the prosecuting authority to specify
all the back up summary offences and related summary offences with which a
person charged with an indictable offence has been charged. The amendments
will require the Supreme Court and District Court (unless the court considers
it inappropriate to do so) to dismiss any charges for back up summary
offences while retaining the existing discretion to deal with related summary
offences under Part 10 in the case of the other specified summary offences
(Schedule 1.4 [4]-[ 13]).
Schedule 1.4 [1] and 14] inserts a Schedule containing provisions of a
savings or transitional nature. The proposed Schedule will also enable
regulations of a savings or transitional nature to be made to supplement the
other provisions of the Schedule.
Procedure for dealing with offences relating to false
instruments
At present offences under sections 300-302 of the Crimes Act 1900 are listed
in Table 1 to Part 9A of the Criminal Procedure Act 1986 and so are required
to be dealt with summarily unless the prosecuting authority or the person
charged with the offence elects to have them dealt with on indictment. The
proposed amendments provide for the offences to continue to be dealt with in
this way where the value of the property, or amount of remuneration, greater
remuneration or financial advantage in respect of which the offence is
charged exceeds $5,000 (or is not specified) (Schedule 1.4 [2]) but provides
for offences where the value or amount does not exceed $5,000 to be listed in
Table 2 to Part 9A (Schedule 1.4 [3]). The effect of this will be that in those
cases the offences are required to be dealt with summarily unless the
prosecuting authority elects to have them dealt with on indictment.
Explanatory note page 6
Justices Act 1902
The proposed amendment is consequential on the proposed amendments to
the Criminal Procedure Act 1986 relating to the procedure for dealing with
related summary matters (Schedule 1.4 [4]-[7]) described above.
Listening Devices Act 1984
Sections 13 and 14 of the Listening Devices Act 1984 make evidence of
private conversations that have been unlawfully obtained or obtained
inadvertently pursuant to a warrant inadmissible in criminal proceedings
except in specified circumstances. The proposed amendments make it clear
that the reference to criminal proceedings extends to proceedings in
connection with bail.
Explanatory note page 7