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1998
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Bail Act 1978
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Justices Act 1902
The amendments are explained in detail below in relation to each Act to be
amended.
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 amendments to the Bail
Act 1978 set out in Schedule 1.
Clause 4 is a formal provision giving effect to the amendments to the
Children (Criminal Proceedings) Act 1987 set out in Schedule 2.
Clause 5 is a formal provision giving effect to the amendments to the
Crimes Act 1900 set out in Schedule 3.
Clause 6 is a formal provision giving effect to the amendments to the
Criminal Appeal Act 1912 set out in Schedule 4.
Clause 7 is a formal provision giving effect to the amendments to the
Criminal Procedure Act 1986 set out in Schedule 5.
Clause 8 is a formal provision giving effect to the amendments to the
Justices Act 1902 set out in Schedule 6.
Schedule 1 Amendment of Bail Act 1978
Point at which a person's entitlement to liberty under bail
ends
Section 7 of the Bail Act 1978 provides that, if an accused person who is
granted bail in respect of a particular offence enters into the bail undertaking
(and into any bail conditions), the person is entitled "to remain at liberty in
respect of the offence until the person is required to appear before a court" in
accordance with the bail undertaking. Section 11 uses the same language in
relation to circumstances in which the requirement for bail is dispensed with.
However, it is not clear precisely when the requirement "to appear before a
court" takes effect (and, accordingly, the entitlement to liberty comes to an
end).
Schedule 1 [ l ] inserts proposed section 16A to clarify the matter and
Schedule 1 [2] makes a consequential amendment.
Explanatory note page 2
Transitional
Schedule 1 [3] inserts a transitional provision relating to the proposed section
in Schedule 1 (Savings and transitional provisions) to the Act.
Schedule 2 Amendment of Children (Criminal
Proceedings) Act 1987
Powers of courts other than the Children's Court in relation
to orders of recognizance and probation
Under section 18 of the Children (Criminal Proceedings) Act 1987, a court
exercising certain functions of the Children's Court may, among other things,
make a recognizance or probation order in relation to a person who has
pleaded guilty to an indictable offence (other than a serious indictable
offence, as defined in that Act) in that court or has been found guilty or
convicted of the offence by that court. However, the Act contains no express
power for the court concerned to terminate, vary or enforce the order.
Section 40 provides that the Children's Court may terminate, reduce the
period of, or vary any condition of, an order of recognizance or probation on
application made by or on behalf of the person to whom the order relates (or
by an authorised officer, as defined in section 39). Schedule 2 [2] inserts
proposed section 40 (1A), which enables (but does not oblige) the Children's
Court to refer any such application to the court that made the order (if the
order was made by a court other than the Children's Court), to be dealt with
by that court. Schedule 2 [ l ] confers on the court that made the order the
requisite power to deal with the application.
Similarly, Schedule 2 [3] amends section 41 (Enforcement of conditions of
recognizance or probation) so as to empower the Children's Court and the
Local Court to order that a person brought before the court concerned in
relation to a failure to comply with a condition of the person's recognizance
or probation be brought, instead, before the court that made the relevant
order. to be dealt with by that court. The proposed amendment also confers
on the court that made the order the requisite power to deal with the person.
Transitional
Schedule 2 [4] and [5] amend Schedule 2 (Savings and transitional
provisions) to the Act to allow regulations of a savings and transitional nature
to be made under that Act as a consequence of the enactment of Schedule 2
to the proposed Act. Schedule 2 [6] inserts a transitional provision relating to
the proposed amendments to sections 18, 40 and 41.
Explanatory note page 3
Schedule 3 Amendment of Crimes Act 1900
Abolition of common law rule concerning wives as
accessories after the fact
Schedule 3 inserts proposed section 347A in the Crimes Act 1900. The
proposed section abolishes the common law rule granting immunity to a wife
against prosecution as an accessory after the fact to a felony committed by
her husband.
Schedule 4 Amendment of Criminal Appeal Act 1912
Statement of point of law for determination by Court of
Criminal Appeal
Schedule 4 [2] repeals section 5A (1A) of the Criminal Appeal Act 1912.
That subsection requires, in certain circumstances, a question of law
submitted to the Court of Criminal Appeal for determination to be dealt with
as if the submission were an appeal to that Court under section 5AA (l).
Schedule 4 [ 1 ] re-enacts the subsection (without that requirement) as a
stand-alone provision, and makes it clear that the Court of Criminal Appeal
may make any such order or give any such direction as it thinks fit to the
court from which the submission was made.
Statute law revision
Schedule 4 [3] corrects an incorrect reference.
Transitional
Schedule 4 [4] inserts a transitional provision relating to the proposed
amendments in Schedule 1 (Savings and transitional provisions) to the Act.
Schedule 5
Amendment of Criminal Procedure Act 1986
Attempts, accessories and abettors
Table 2 to Part 9A of the Criminal Procedure Act 1986 sets out the indictable
offences that a Local Court is required to deal with summarily unless the
prosecuting authority elects otherwise. Certain clauses of the Table provide
that an attempt to commit any of the offences specified in the clause
concerned is also an offence that is to be dealt with summarily unless the
prosecuting authority elects otherwise. As a consequence of Schedule 5 [2],
Schedule 5 [ 1 ] repeals those references to attempts to commit an offence.
Explanatory note page 4
Schedule 5 [2] inserts proposed Part 7 in the Table. That Part provides that
the offence of an attempt to commit any of the offences mentioned in a
preceding Part of the Table is an offence that is to be dealt with summarily
unless the prosecuting authority elects otherwise. It also makes similar
provision in relation to the offence of being an accessory before or after the
fact to any felony mentioned in a preceding Part of the Table and to the
offences of aiding, abetting, counselling or procuring the commission of any
misdemeanour mentioned in a preceding Part (other than Part 3) of the Table.
(Part 3 deals with certain offences under the Drug Misuse and Trafficking Act
1985. That Act makes provision for the summary disposal of the offences of
aiding, abetting, counselling, procuring, soliciting or inciting the commission
of the offences to which Part 9A of the Criminal Procedure Act 1986
applies.)
Schedule 5 [2] is not intended to create any new offences.
"Back up offences" and "related offences"
Part 10 of the Criminal Procedure Act 1986 currently requires the Supreme
Court and the District Court, at the end of a trial for an indictable offence, to
dismiss any charges for back up summary offences as defined in that Part
(unless the Court considers it inappropriate to do so), and gives the Court a
discretion to deal with any back up summary offences not so dismissed and
any related summary offences (as defined in Part 10).
To enable the Court to deal with a wider range of associated offences.
Schedule 5 [4] repeals the definitions of back up summary offence and
related summary offence and inserts, instead, definitions of back up offence
and related offence. The new definitions include within their ambit indictable
offences that are capable of being dealt with summarily by a Local Court in
accordance with Part 9A of the Act.
Schedule 5 [3] and [5][9] make consequential amendments.
Transitional
Schedule 5 [10] amends Schedule 1 (Savings. transitional and other
provisions) to the Act to allow regulations of a savings and transitional nature
to be made under that Act as a consequence of the enactment of Schedule 5
to the proposed Act.
Schedule 5 [11] inserts transitional provisions relating to the proposed
amendments to Table 2 to Part 9A and to Part 10.
Explanatory note page 5
Schedule 6 Amendment of Justices Act 1902
Direction to witness to attend committal hearing
At present, section 48E of the Justices Act 1902 allows a Justice or Justice
before whom committal proceedings are held to give a direction requiring the
attendance at the proceedings of a person who has made a written statement
for the purpose of the proceedings. The direction may be given only if the
Justice or Justices are of the opinion that there are substantial reasons why, in
the interests of justice, the witness should attend to give oral evidence.
However, if the offence to which the proceedings relate is an offence
involving violence (as defined in the section), and the witness is an alleged
victim of the offence, the Justices must be satisfied that there are special
reasons why the witness should attend.
The section defines offence involving violence so as to exclude from its
ambit "an offence to the extent that it is listed in Table 1 to Part 9A of the
Criminal Procedure Act 1986"-- that is, an indictable offence that is to be
dealt with summarily unless the prosecuting authority or person charged
elects otherwise. The effect is that witnesses who are alleged victims of some
alleged violent offences can be compelled to attend the committal
proceedings and give oral evidence on the "substantial reasons" test, while
others can be compelled only on the "special reasons" test.
Schedule 6 [ 1 ] amends that definition so as to remove this anomaly.
Transitional
Schedule 6 [2] inserts a transitional provision in the Second Schedule
(Savings, transitional and other provisions) in relation to the proposed
amendment.
Explanatory note page 6