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TASMANIA
__________
CRIMINAL CODE AMENDMENT BILL 2008
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Schedule 1 amended (Criminal Code)
[Bill 46]-I
2
CRIMINAL CODE AMENDMENT BILL 2008
(Brought in by the Minister for Justice, the Honourable David
Edward Llewellyn)
A BILL FOR
An Act to amend the Criminal Code
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Criminal Code
Amendment Act 2008.
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
3. Principal Act
In this Act, the Criminal Code Act 1924* is
referred to as the Principal Act.
*No. 69 of 1924
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4. Schedule 1 amended (Criminal Code)
Schedule 1 to the Principal Act is amended as
follows:
(a) by inserting the following definition after
the definition of "contaminate" in section
1:
"controlled substance" has the same
meaning as in the Misuse of
Drugs Act 2001;
(b) by inserting the following definition after
the definition of "ship" in section 1:
"trafficable quantity" has the same
meaning as in the Misuse of
Drugs Act 2001;
(c) by inserting the following Chapter after
section 389:
Chapter XLIV Exceptions to Double Jeopardy
Rules
390. Definitions
(1) In this chapter
"acquittal"
(a) includes
(i) an acquittal
in appeal
proceedings
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in relation
to a crime;
and
(ii) an acquittal
at the
direction of
a court; but
(b) does not include a
verdict of not
guilty on the
ground of
insanity;
"administration of justice
crime" means a crime
under Chapter X;
"Court" means the Court of
Criminal Appeal;
"fresh and compelling
evidence" see
section 395;
"interests of justice" see
section 397;
"serious crime" means a
crime punishable upon
indictment listed in
Appendix D;
"tainted acquittal" see
section 396;
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"very serious crime" means a
crime, or an attempt to
commit a crime, under
section 158, a crime under
section 159, 185 or 240(4)
or a crime under Part 2 of
the Misuse of Drugs Act
2001 being a crime that
relates to a trafficable
quantity of a controlled
substance.
(2) For the purposes of this chapter,
the retrial of an acquitted person
for a crime includes a trial if the
crime is not the same as the crime
of which the person was
acquitted.
(3) In this chapter, a reference to the
proceedings in which a person
was acquitted includes, if they
were appeal proceedings, a
reference to the earlier
proceedings to which the appeal
related.
391. Application of Chapter XLIV
(1) This chapter applies if, before or
after the commencement of this
chapter, a person is acquitted of a
crime, whether the crime is
committed before or after the
commencement of this chapter.
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(2) This section extends to a person
acquitted in proceedings outside
this State of a crime under the
law of the place where the
proceedings were held.
(3) However, this section does not
extend as mentioned in
subsection (2) if the law of the
place where the proceedings were
held does not permit the person to
be retried and the application of
this chapter to the retrial is
inconsistent with the Constitution
of the Commonwealth or a law of
the Commonwealth.
392. Circumstances in which person may
be charged with administration of
justice crime relating to previous
acquittal
(1) The Court may, on application by
the Director of Public
Prosecutions, order a person who
has been acquitted of a crime to
be tried for an administration of
justice crime that is related to the
crime of which the person has
been acquitted if the Court is
satisfied that
(a) there appears to be fresh
evidence against the
acquitted person in
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relation to the
administration of justice
crime; and
(b) in all the circumstances it
is in the interests of
justice for the order to be
made.
(2) If the Court orders a person to be
tried for an administration of
justice crime that is related to a
crime of which the person has
been acquitted, the Court must
quash the person's acquittal or
remove the acquittal as a bar to
the person being tried.
(3) On the trial of a person for an
administration of justice crime,
section 355(1)(b) does not apply
in relation to the charge of the
administration of justice crime.
(4) For the purposes of this section,
evidence is "fresh" if
(a) it was not adduced in the
proceedings in which the
person was acquitted; and
(b) it could not have been
adduced in those
proceedings with the
exercise of reasonable
diligence.
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393. Court may order retrial for a very
serious crime fresh and compelling
evidence
(1) The Court may, on the
application of the Director of
Public Prosecutions, order an
acquitted person to be retried for
a very serious crime if satisfied
that
(a) there appears to be fresh
and compelling evidence
against the acquitted
person in relation to the
crime; and
(b) in all the circumstances it
is in the interests of
justice for the order to be
made.
(2) The Court may order a person to
be retried for a very serious crime
under this section even if the
person had been charged with and
acquitted of a lesser crime.
(3) If the Court orders an acquitted
person to be retried for a very
serious crime, the Court must
quash the person's acquittal or
remove the acquittal as a bar to
the person being retried.
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(4) On the retrial, section 355(1)(b)
does not apply in relation to the
charge of the very serious crime.
394. Court may order retrial for a serious
crime tainted acquittal
(1) The Court may, on the
application of the Director of
Public Prosecutions, order an
acquitted person to be retried for
a serious crime if satisfied that
(a) the acquittal is a tainted
acquittal; and
(b) in all the circumstances it
is in the interests of
justice for the order to be
made.
(2) The Court may order a person to
be retried for a serious crime
under this section even if the
person had been charged with and
acquitted of a lesser crime.
(3) If the Court orders an acquitted
person to be retried for a serious
crime, the Court must quash the
person's acquittal or remove the
acquittal as a bar to the person
being retried.
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(4) On the retrial, section 355(1)(b)
does not apply in relation to the
charge of the serious crime.
395. Fresh and compelling evidence
meaning
(1) This section applies for the
purpose of deciding under this
chapter whether there is fresh and
compelling evidence against an
acquitted person in relation to a
very serious crime.
(2) Evidence is "fresh" if
(a) it was not adduced in the
proceedings in which the
person was acquitted; and
(b) it could not have been
adduced in those
proceedings with the
exercise of reasonable
diligence.
(3) Evidence is "compelling" if
(a) it is reliable; and
(b) it is substantial; and
(c) in the context of the
issues in dispute in the
proceedings in which the
person was acquitted, it is
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highly probative of the
case against the acquitted
person.
(4) Evidence that would be
admissible on a retrial under this
chapter is not precluded from
being fresh and compelling
evidence merely because it would
have been inadmissible in the
earlier proceedings against the
acquitted person.
396. Tainted acquittal meaning
(1) This section applies for the
purpose of deciding under this
chapter whether the acquittal of
an accused person is a tainted
acquittal.
(2) An acquittal is "tainted" if
(a) the accused person or
another person has been
convicted in this State or
elsewhere of an
administration of justice
crime in relation to the
proceedings in which the
accused person was
acquitted; and
(b) it is more likely than not
that, but for the
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commission of the
administration of justice
crime, the accused person
would have been
convicted.
(3) An acquittal is not a tainted
acquittal during any of the
following periods:
(a) the period provided under
section 407 for the person
convicted of the
administration of justice
crime (the "convicted
person") to appeal, or
obtain leave to appeal,
from the conviction;
(b) if, within the period
mentioned in
paragraph (a), the
convicted person gives
notice of appeal, the
period ending when the
appeal is decided;
(c) if, within the period
mentioned in
paragraph (a), the
convicted person gives
notice of an application
for leave to appeal, the
period ending
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(i) if the application
is refused, when
the decision
refusing the
application is
made; or
(ii) if the application
is granted, when
the appeal is
decided.
(4) If the conviction for the
administration of justice crime is,
on appeal, quashed after the
Court has ordered the acquitted
person to be retried under this
chapter because of the conviction,
the person may apply to the Court
to set aside the order and
(a) restore the acquittal that
was quashed; or
(b) restore the acquittal as a
bar to the person being
retried for the crime.
397. Interests of justice matters for
consideration
(1) This section applies for the
purpose of deciding under this
chapter whether it is in the
interests of justice for an order to
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be made for the retrial of, or
prosecution of an administration
of justice crime against, an
acquitted person.
(2) It is not in the interests of justice
to make an order for the retrial of,
or prosecution of an
administration of justice crime
against, an acquitted person
unless the Court is satisfied that a
fair retrial or trial is likely in the
circumstances.
(3) The Court must have regard in
particular to
(a) the length of time since
the acquitted person
allegedly committed the
crime; and
(b) whether any police officer
or prosecutor has failed to
act with reasonable
diligence or expedition in
relation to
(i) the investigation
of the commission
of the crime of
which the person
was acquitted and
the prosecution of
the proceedings in
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which the person
was acquitted; and
(ii) the application for
the retrial of, or
prosecution of an
administration of
justice crime
against, the
acquitted person.
397A. Application for prosecution for
administration of justice crime
procedure
(1) An application under section 392
may not be made unless
(a) the person has been
charged with the
administration of justice
crime; or
(b) a warrant has been issued
for the person's arrest for
the administration of
justice crime.
(2) The application must be made not
later than 28 days after the person
is charged with the relevant crime
or the warrant is issued for the
person's arrest in relation to the
relevant crime.
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(3) The Court may extend the period
mentioned in subsection (2) for
good cause.
(4) The Court must consider the
application at a hearing.
(5) The person to whom the
application relates is entitled to
be present and heard at the
hearing, whether or not the
person is in custody.
(6) However, if the person has been
given a reasonable opportunity to
be present, the application may be
decided even if the person is not
present.
(7) The powers of the Court
mentioned in section 409(1) may
be exercised in relation to the
hearing of the application.
(8) The Court may at one hearing
consider more than one
application under section 392, but
only if the administration of
justice crimes concerned may be
tried on the same indictment.
(9) If the Court decides in
proceedings on an application
under section 392 that the
acquittal is not a bar to the person
being tried for an administration
of justice crime that is related to
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the crime of which the person has
been acquitted, it must make a
declaration to that effect.
397AB. Prosecution for administration of
justice crime
(1) An indictment for the trial of a
person in respect of whom the
Court has made an order under
section 392 may not, without
leave of the Court, be presented
after the end of the period of 2
months after the order was made.
(2) The Court may give leave only if
satisfied that
(a) the prosecutor has acted
with reasonable
expedition; and
(b) there is good and
sufficient reason why the
late presentation of the
indictment should be
allowed.
(3) If, after the end of the period of 2
months after an order for the trial
of an accused person was made
under section 392, an indictment
for the trial of the person has not
been presented or has been
withdrawn or quashed, the person
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may apply to the Court to set
aside the order for the trial and
(a) restore the acquittal that
was quashed; or
(b) restore the acquittal as a
bar to the person being
tried for the crime.
(4) If the order is set aside, a further
application may not be made
under section 392 for the trial of
the accused person in relation to
the administration of justice
crime.
(5) At the trial of a person for an
administration of justice crime,
the prosecution is not entitled to
refer to the fact that the Court has
found that there appears to be
fresh evidence against that
person.
397AC. Application for retrial procedure
(1) If a person has been acquitted,
not more than one application for
the retrial of the person may be
made under this chapter in
relation to the acquittal.
(2) If the acquittal results from a
retrial under section 393 or 394
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(a) an application may not be
made for an order under
section 393 in relation to
the acquittal; but
(b) an application may be
made for an order under
section 394 in relation to
the acquittal.
(3) An application for the retrial of
an acquitted person may not be
made under this chapter unless
(a) the person has been
charged with the crime for
which the retrial is sought
(the "relevant crime"); or
(b) a warrant has been issued
for the person's arrest in
relation to the relevant
crime.
(4) The application must be made not
later than 28 days after the person
is charged with the relevant crime
or the warrant is issued for the
person's arrest in relation to the
relevant crime.
(5) The Court may extend the period
mentioned in subsection (4) for
good cause.
(6) The Court must consider the
application at a hearing.
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(7) The person to whom the
application relates is entitled to
be present and heard at the
hearing, whether or not the
person is in custody.
(8) However, if the person has been
given a reasonable opportunity to
be present, the application may be
decided even if the person is not
present.
(9) The powers of the Court
mentioned in section 409(1) may
be exercised in relation to the
hearing of the application.
(10) The Court may at one hearing
consider more than one
application under this chapter for
a retrial (whether or not relating
to the same person), but only if
the crimes concerned may be
tried on the same indictment.
(11) If the Court decides in
proceedings on an application
under this chapter that the
acquittal is not a bar to the person
being retried for the crime
concerned, it must make a
declaration to that effect.
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397AD. Retrial
(1) An indictment for the retrial of a
person that has been ordered
under this chapter may not,
without the leave of the Court, be
presented after the end of the
period of 2 months after the order
was made.
(2) The Court may give leave only if
it is satisfied that
(a) the prosecutor has acted
with reasonable
expedition; and
(b) there is good and
sufficient reason for the
retrial despite the lapse of
time since the order was
made.
(3) If, after the end of the period of 2
months after an order for the
retrial of an accused person was
made under this chapter, an
indictment for the retrial of the
person has not been presented or
has been withdrawn or quashed,
the person may apply to the Court
to set aside the order for the
retrial and
(a) restore the acquittal that
was quashed; or
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(b) restore the acquittal as a
bar to the person being
tried for the crime.
(4) If the order is set aside, a further
application may not be made
under this chapter for the retrial
of the accused person in relation
to the crime concerned.
(5) At the retrial of an accused
person, the prosecution is not
entitled to refer to the fact that the
Court has found that it appears
that
(a) there appears to be fresh
and compelling evidence
against the acquitted
person; or
(b) more likely than not, but
for the commission of the
administration of justice
crime, the accused person
would have been
convicted.
397AE. Authorisation of police investigations
(1) This section applies to any police
investigation of the commission
of a crime by an acquitted person
in relation to the possible retrial
of the person for the crime or
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prosecution of the person for an
administration of justice crime
under this chapter.
(2) For the purposes of this section, a
police investigation is an
investigation that involves,
whether with or without the
consent of the acquitted person
(a) any arrest, questioning or
search of the acquitted
person, or the issue of a
warrant for the arrest of
the person; or
(b) any forensic procedure
carried out on the person
or any search or seizure of
premises or property of or
occupied by the person.
(3) A police officer may not carry out
or authorise a police investigation
to which this section applies
unless the Director of Public
Prosecutions
(a) has advised that, in the
opinion of the Director of
Public Prosecutions, the
acquittal would not be a
bar to the retrial of the
acquitted person in this
State for the crime or the
trial of an acquitted
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person for an
administration of justice
crime; and
(b) has given written consent
to the police investigation
on the application in
writing of the
Commissioner of Police.
(4) However, a commissioned police
officer may authorise the carrying
out of a police investigation to
which this section applies,
without the advice and written
consent of the Director of Public
Prosecutions under
subsection (3)(a) or (b), if the
commissioned police officer
reasonably believes that
(a) urgent action is required
in order to prevent the
investigation being
substantially and
irrevocably prejudiced;
and
(b) it is not reasonably
practicable in the
circumstances to obtain
the consent of the
Director of Public
Prosecutions before
taking the action.
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(5) The Director of Public
Prosecutions must be informed,
as soon as practicable, of any
action taken under subsection (4)
and the investigation must not
proceed further without the
advice and written consent of the
Director of Public Prosecutions
under subsection (3)(a) or (b).
(6) The Commissioner of Police may
make an application for the police
investigation only if satisfied that
relevant evidence for the
purposes of an application for a
retrial under this chapter
(a) has been obtained; or
(b) is likely to be obtained as
a result of the
investigation.
(7) The Director of Public
Prosecutions may give consent to
the police investigation only if
satisfied that
(a) there is, or there is likely
as a result of the
investigation to be,
sufficient new evidence to
warrant the conduct of the
investigation; and
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(b) it is in the public interest
for the investigation to
proceed.
(8) Despite section 8 of the Police
Service Act 2003, the
Commissioner of Police may not
delegate powers of the
Commissioner under this section
to a police officer or an employee
or officer, within the meaning of
the State Service Act 2000.
397AF. Restrictions on publication
(1) A person must not publish any
matter for the purpose of
identifying or having the effect of
identifying an acquitted person
who is being retried or tried for
an administration of justice crime
under this chapter or who is the
subject of
(a) a police investigation, or
an application for a police
investigation, mentioned
in section 397AE; or
(b) an application for a retrial
or trial for an
administration of justice
crime, or an order for
retrial or trial for an
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Act No. of
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administration of justice
crime, under this chapter.
(2) Subsection (1) does not apply if
the publication is authorised by
order of the Court or of the court
before which the acquitted person
is being retried or tried for the
administration of justice crime.
(3) The relevant court may make an
order authorising publication only
if the court is satisfied that it is in
the interests of justice to make the
order.
(4) Before making an order under
this section, the relevant court
must give the acquitted person a
reasonable opportunity to be
heard on the application for the
order.
(5) The relevant court may at any
time vary or revoke an order
under this section.
(6) The prohibition on publication
under this section ceases to have
effect, subject to any order under
this section, when whichever of
the following situations occurs
first:
(a) there is no longer any step
that could be taken which
would lead to the
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acquitted person being
retried or tried for the
administration of justice
crime under this chapter;
(b) if the acquitted person is
retried or tried for the
administration of justice
crime under this chapter,
the trial ends.
(7) Nothing in this section affects
any prohibition of the publication
of any matter under any other Act
or law.
(8) A contravention of a prohibition
on publication under this section
is punishable as contempt of the
Supreme Court.
(d) by inserting the following subsection
after subsection (4) in section 402:
(4A) The Court, on hearing an appeal
that does or may require it to
impose a sentence, or to vary a
sentence imposed, on a person for
an offence (whether the appeal
was brought, made or lodged by
the person or by the prosecutor)
(a) may take into account any
matter relevant to the
sentence that has occurred
between when the court of
trial dealt with the person
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and when the appeal is
heard; but
(b) despite paragraph (a),
must not take into account
the fact that the Court's
decision may mean that
the person is again
sentenced for the crime.
(e) by inserting the following Appendix after
Appendix C:
APPENDIX D SERIOUS CRIMES
1. Criminal Code Act 1924
Section 124 Sexual intercourse with a young person
under the age of 17 years
Section 125A Maintaining sexual relationship with a
young person under the age of 17 years
Section Procuring unlawful sexual intercourse
125C(2) with person under the age of 17 years
Section 126 Sexual intercourse with person with
mental impairment
Section 127A Aggravated sexual assault
Section 130 Involving person under age of 18 years in
production of child exploitation material
Section 130A Producing child exploitation material
Section 130B Distributing child exploitation material
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Section 133 Incest
Section 158 Murder
Section 159 Manslaughter
Section 161 Being accessory after the fact to murder
Section 165 Causing death of child before birth
Section 170 Committing an unlawful act intended to
cause grievous bodily harm
Section 172 Wounding or causing grievous bodily
harm
Section 178A Performing female genital mutilation
Section 179 Setting man-traps &c., or allowing man-
traps &c. to remain set
Section 185 Rape
Section 191A Kidnapping
Section 240(3) Armed robbery
Section 240(4) Aggravated armed robbery
Section 245 Aggravated burglary
Section 268 Arson
Section 268A Unlawfully setting fire to vegetation
2. Sex Industry Offences Act 2005
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Section 9(1) Procurring or otherwise causing or
permitting a child to provide sexual
services in a sexual services business
Section 9(2) Receiving a fee or reward that a person
knows &c. is derived, directly or
indirectly, from sexual services provided
by a child in a sexual services business
3. Misuse of Drugs Act 2001
A crime under Part 2 of the Misuse of Drugs Act 2001
being a crime that relates to a trafficable quantity of a
controlled substance
32 Government Printer, Tasmania