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PARLIAMENT OF VICTORIA
Crimes (Sexual Offences) Act 2005
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 2
PART 2--AMENDMENT OF CRIMES ACT 1958 3
3. New definition inserted 3
4. Jury directions on consent 3
5. New sections 37A and 37B inserted 4
37A. Objectives of Subdivisions 8A to 8G 4
37B. Guiding principles 4
6. Rape 5
7. New section 38A inserted 5
38A. Compelling sexual penetration 5
8. Incest 6
9. Sexual penetration of child under the age of 16 7
10. Indecent act with child under the age of 16 7
11. Sexual relationship with child under the age of 16 7
12. Sexual penetration of 16 or 17 year old child 8
13. New section 49 substituted 9
49. Indecent act with 16 or 17 year old child 9
14. Subdivision heading substituted 10
15. Definitions 11
16. New section 51 substituted 12
51. Sexual offences against persons with a cognitive
impairment by providers of medical or therapeutic
services 12
17. Sexual offences against residents of residential facilities 13
18. New section 58 substituted 15
58. Procuring sexual penetration of a child 15
19. Repeal of section 60 17
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551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Clause Page
PART 3--AMENDMENT OF CRIMES (CRIMINAL TRIALS)
ACT 1999 18
20. Definition 18
21. Presentment to be filed 18
22. Directions hearing 19
23. Manner of giving evidence 19
PART 4--AMENDMENT OF EVIDENCE ACT 1958 20
24. Definitions 20
25. Evidence of children and persons with a cognitive impairment 20
26. Repeal of section 23A 22
27. New section 32AB inserted 22
32AB. Guiding principles 22
28. Definition 23
29. Exclusion of evidence of confidential communications 23
30. Restriction on granting leave 24
31. Limitations on privilege 25
32. Insertion of Note 26
33. Special rules of evidence in relation to certain offences which
relate to rape 26
34. Alternative arrangements for giving evidence in certain
proceedings 27
35. New section 37CA inserted 28
37CA. Special rules for cross-examination of protected
witnesses 28
36. Video link evidence from overseas in certain proceedings 31
37. New section 37E inserted 31
37E. Evidence of specialised knowledge in certain cases 31
38. New Division 3AA inserted 32
Division 3AA--Examination and Cross-Examination of
Certain Witnesses 32
41A. Definition 32
41B. Application of Division 32
41C. Evidence of specialised knowledge to determine
competency 32
41D. Evidence of previous representations made by child
complainants 33
41E. Alternative arrangements for giving of evidence in
certain proceedings 34
41F. Improper questions 36
41G. Pre-recording evidence at special hearing 37
41H. Use of pre-recorded evidence 39
ii
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Clause Page
PART 5--AMENDMENT OF MAGISTRATES' COURT
ACT 1989 42
39. Definitions 42
40. New Part 3A of Schedule 5 inserted 42
41. Procedure where hand-up brief served 43
PART 6--CONSEQUENTIAL AMENDMENT OF OTHER ACTS 44
42. Consequential amendment of Crimes Act 1958 44
43. Consequential amendment of Sentencing Act 1991 44
44. Consequential amendment of Serious Sex Offenders
Monitoring Act 2005 45
45. Consequential amendment of Sex Offenders Registration
Act 2004 46
46. Consequential amendment of Victims of Crime Assistance
Act 1996 47
47. Consequential amendment of Working with Children
Act 2005 48
ENDNOTES 49
iii
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
PARLIAMENT OF VICTORIA
A BILL
to amend the Crimes Act 1958, the Crimes (Criminal Trials) Act
1999, the Evidence Act 1958 and the Magistrates' Court Act 1989
in relation to sexual offences and for other purposes.
Crimes (Sexual Offences) Act 2005
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The main purpose of this Act is to amend the
Crimes Act 1958, the Crimes (Criminal Trials)
Act 1999, the Evidence Act 1958 and the
5
Magistrates' Court Act 1989 to make further
provision in relation to sexual offences, including
the definition of offences and the giving of
1
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 1--Preliminary
s. 2
evidence in legal proceedings that relate to a
charge for a sexual offence.
2. Commencement
(1) Subject to sub-section (2), this Act comes into
operation on a day or days to be proclaimed.
5
(2) If a provision of this Act does not come into
operation before 1 December 2006, it comes into
operation on that day.
__________________
2
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 2--Amendment of Crimes Act 1958
s. 3
See:
PART 2--AMENDMENT OF CRIMES ACT 1958
Act No.
6231.
3. New definition inserted Reprint No. 18
as at
(1) In section 35(1) of the Crimes Act 1958 insert 1 July 2005
and
the following definition-- amending
Act Nos
' "domestic partner" of a person means a person
5 16/2004,
to whom the person is not married but with 18/2005,
56/2005 and
whom the person is living as a couple on a 66/2005.
genuine domestic basis (irrespective of LawToday:
www.dms.
gender);'. dpc.vic.
gov.au
(2) After section 35(1) of the Crimes Act 1958
10
insert--
'(1A) For the purposes of the definition of
"domestic partner" in sub-section (1), in
determining whether persons are domestic
partners of each other, all the circumstances
15
of their relationship are to be taken into
account, including any one or more of the
matters referred to in section 275(2) of the
Property Law Act 1958 as may be relevant
in a particular case.'.
20
4. Jury directions on consent
For section 37(1)(a) of the Crimes Act 1958
substitute--
"(a) the fact that a person did not say or do
anything to indicate free agreement to a
25
sexual act at the time at which the act took
place is enough to show that the act took
place without that person's free agreement;".
3
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 2--Amendment of Crimes Act 1958
s. 5
5. New sections 37A and 37B inserted
After section 37 of the Crimes Act 1958 insert--
"37A. Objectives of Subdivisions 8A to 8G
The objectives of Subdivisions (8A) to (8G)
are--
5
(a) to uphold the fundamental right of
every person to make decisions about
his or her sexual behaviour and to
choose not to engage in sexual activity;
(b) to protect children and persons with a
10
cognitive impairment from sexual
exploitation.
37B. Guiding principles
It is the intention of Parliament that in
interpreting and applying Subdivisions (8A)
15
to (8G), courts are to have regard to the fact
that--
(a) there is a high incidence of sexual
violence within society; and
(b) sexual offences are significantly under-
20
reported; and
(c) a significant number of sexual offences
are committed against women, children
and other vulnerable persons including
persons with a cognitive impairment;
25
and
(d) sexual offenders are commonly known
to their victims; and
(e) sexual offences often occur in
circumstances where there is unlikely
30
to be any physical signs of an offence
having occurred.".
4
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 2--Amendment of Crimes Act 1958
s. 6
6. Rape
(1) For section 38(3) of the Crimes Act 1958
substitute--
"(3) A person (the offender) also commits rape if
he or she compels a person--
5
(a) to sexually penetrate the offender or
another person, irrespective of whether
the person being sexually penetrated
consents to the act; or
(b) who has sexually penetrated the
10
offender or another person, not to cease
sexually penetrating the offender or that
other person, irrespective of whether
the person who has been sexually
penetrated consents to the act.".
15
(2) In section 38(4) of the Crimes Act 1958, for
"a male" substitute "another".
7. New section 38A inserted
After section 38 of the Crimes Act 1958 insert--
"38A. Compelling sexual penetration
20
(1) A person must not compel another person to
take part in an act of sexual penetration.
Penalty: Level 2 imprisonment (25 years
maximum).
(2) A person (the offender) compels another
25
person (the victim) to take part in an act of
sexual penetration if--
(a) the offender compels the victim to
introduce (to any extent) an object or a
part of his or her body into his or her
30
own anus or, in the case of a female
victim, her own vagina, other than in
the course of a procedure carried out in
5
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 2--Amendment of Crimes Act 1958
s. 8
good faith for medical or hygienic
purposes; or
(b) the offender compels the victim to take
part in an act of bestiality within the
meaning of section 59.
5
(3) For the purposes of sub-section (2), a person
compels another person (the victim) to take
part in an act of sexual penetration if the
person compels the victim (by force or
otherwise) to engage in that act--
10
(a) without the victim's consent; and
(b) while being aware that the victim is not
consenting or might not be
consenting.".
8. Incest
15
For section 44(6) of the Crimes Act 1958
substitute--
"(6) A person who is compelled by another
person to take part in an act of sexual
penetration in any of the circumstances
20
referred to in sub-section (1), (2), (3) or (4) is
not guilty of an offence against this section.
(6A) For the purposes of this section, a person
compels another person (the victim) to take
part in an act of sexual penetration if the
25
person compels the victim (by force or
otherwise) to engage in that act--
(a) without the victim's consent; and
(b) while being aware that the victim is not
consenting or might not be
30
consenting.".
6
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 2--Amendment of Crimes Act 1958
s. 9
9. Sexual penetration of child under the age of 16
(1) In section 45(4)(a) and (c) of the Crimes Act
1958, after "accused" insert "satisfies the court on
the balance of probabilities that he or she".
(2) After section 45(4) of the Crimes Act 1958
5
insert--
"(4A) If consent is relevant to a charge under sub-
section (1), the prosecution bears the burden
of proving lack of consent.".
10. Indecent act with child under the age of 16
10
(1) In section 47(2)(a) and (c) of the Crimes Act
1958, after "accused" insert "satisfies the court on
the balance of probabilities that he or she".
(2) After section 47(2) of the Crimes Act 1958
insert--
15
"(3) If consent is relevant to a charge under sub-
section (1), the prosecution bears the burden
of proving lack of consent.".
11. Sexual relationship with child under the age of 16
(1) Insert the following heading to section 47A of the
20
Crimes Act 1958--
"Persistent sexual abuse of child under the age
of 16".
(2) In section 47A(1) of the Crimes Act 1958, for
"maintains a sexual relationship with" substitute
25
"persistently sexually abuses".
7
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 2--Amendment of Crimes Act 1958
s. 12
12. Sexual penetration of 16 or 17 year old child
(1) Insert the following heading to section 48 of the
Crimes Act 1958--
"Sexual penetration of 16 or 17 year old child".
(2) In section 48(2) of the Crimes Act 1958, after
5
"unless" insert "the accused satisfies the court on
the balance of probabilities that".
(3) After section 48(2) of the Crimes Act 1958
insert--
"(3) If consent is relevant to a charge under sub-
10
section (1), the prosecution bears the burden
of proving lack of consent.
(4) For the purposes of sub-section (1), and
without limiting that sub-section, a child is
under the care, supervision or authority of a
15
person if the person is--
(a) the child's teacher;
(b) the child's foster parent;
(c) the child's legal guardian;
(d) a minister of religion with pastoral
20
responsibility for the child;
(e) the child's employer;
(f) the child's youth worker;
(g) the child's sports coach;
(h) the child's counsellor;
25
(i) the child's health professional;
(j) a member of the police force acting in
the course of his or her duty in respect
of the child;
8
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 2--Amendment of Crimes Act 1958
s. 13
(k) employed in, or providing services in, a
remand centre, youth residential centre,
youth training centre or prison and is
acting in the course of his or her duty in
respect of the child.".
5
13. New section 49 substituted
For section 49 of the Crimes Act 1958
substitute--
"49. Indecent act with 16 or 17 year old child
(1) A person must not wilfully commit, or
10
wilfully be in any way a party to the
commission of, an indecent act with or in the
presence of a 16 or 17 year old child to
whom he or she is not married and who is
under his or her care, supervision or
15
authority.
Penalty: Level 6 imprisonment (5 years
maximum).
(2) Consent is not a defence to a charge under
sub-section (1) unless the accused satisfies
20
the court on the balance of probabilities that
at the time of the alleged offence the accused
believed on reasonable grounds--
(a) that the child was aged 18 or older; or
(b) that he or she was married to the child.
25
(3) If consent is relevant to a charge under sub-
section (1), the prosecution bears the burden
of proving lack of consent.
9
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 2--Amendment of Crimes Act 1958
s. 14
(4) For the purposes of sub-section (1), and
without limiting that sub-section, a child is
under the care, supervision or authority of a
person if the person is--
(a) the child's teacher;
5
(b) the child's parent, adoptive parent,
foster parent or step parent;
(c) the child's legal guardian;
(d) a minister of religion with pastoral
responsibility for the child;
10
(e) the child's employer;
(f) the child's youth worker;
(g) the child's sports coach;
(h) the child's counsellor;
(i) the child's health professional;
15
(j) a member of the police force acting in
the course of his or her duty in respect
of the child;
(k) employed in, or providing services in, a
remand centre, youth residential centre,
20
youth training centre or prison and is
acting in the course of his or her duty in
respect of the child.".
14. Subdivision heading substituted
For the heading to Subdivision (8D) of Division 1
25
of Part I of the Crimes Act 1958 substitute--
"(8D) Sexual Offences against Persons with a
Cognitive Impairment".
10
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 2--Amendment of Crimes Act 1958
s. 15
15. Definitions
In section 50(1) of the Crimes Act 1958--
(a) insert the following definitions--
' "cognitive impairment" includes
impairment because of mental illness,
5
intellectual disability, dementia or brain
injury;
"facility" means a service operated by any
person or body (government or non-
government) that provides programs
10
specially designed to meet the
developmental or educational needs of
persons with a cognitive impairment
and includes a residential facility;';
(b) the definitions of "impaired" and "resident"
15
are repealed;
(c) for the definition of "worker" substitute--
' "worker" means a person who delivers, or
assists in delivering, at a facility
(whether as an employee or as a
20
volunteer or in any other capacity) a
program specially designed to meet the
developmental or educational needs of
persons with a cognitive impairment
residing at the facility or attending the
25
facility to take part in the program but
does not include a person with a
cognitive impairment who also resides
at the facility or attends the facility to
take part in the program.'.
30
11
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 2--Amendment of Crimes Act 1958
s. 16
16. New section 51 substituted
For section 51 of the Crimes Act 1958
substitute--
"51. Sexual offences against persons with a
cognitive impairment by providers of
5
medical or therapeutic services
(1) A person who provides medical or
therapeutic services to a person with a
cognitive impairment who is not his or her
spouse or domestic partner must not take part
10
in an act of sexual penetration with that
person.
Penalty: Level 5 imprisonment (10 years
maximum).
(2) A person who provides medical or
15
therapeutic services to a person with a
cognitive impairment who is not his or her
spouse or domestic partner must not commit,
or be in any way a party to the commission
of, an indecent act with that person.
20
Penalty: Level 6 imprisonment (5 years
maximum).
(3) In a proceeding for an offence against sub-
section (1) or (2) in circumstances in which
the services provided by the accused were
25
related to the cognitive impairment of the
other person, it is a defence to the charge for
the accused to prove on the balance of
probabilities that at the time at which the
offence is alleged to have been committed,
30
the accused believed on reasonable grounds
that the other person did not have a cognitive
impairment.
12
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 2--Amendment of Crimes Act 1958
s. 17
(4) In a proceeding for an offence against sub-
section (1) or (2) in circumstances in which
the services provided by the accused were
not related to the cognitive impairment of the
other person, it is a defence to the charge for
5
the accused to prove on the balance of
probabilities that at the time at which the
offence is alleged to have been committed,
the accused was not aware that the other
person had a cognitive impairment.
10
(5) Consent is not a defence to a charge against
sub-section (1) or (2) unless the accused
satisfies the court on the balance of
probabilities that at the time at which the
offence is alleged to have been committed,
15
the accused believed on reasonable grounds
that he or she was the spouse or domestic
partner of the other person.
(6) If consent is relevant to a charge against sub-
section (1) or (2), the prosecution bears the
20
burden of proving lack of consent.".
17. Sexual offences against residents of residential
facilities
(1) Insert the following heading to section 52 of the
Crimes Act 1958--
25
"Sexual offences against persons with a
cognitive impairment by providers of special
programs".
(2) For section 52(1) of the Crimes Act 1958
substitute--
30
"(1) A worker at a facility must not take part in
an act of sexual penetration with a person
with a cognitive impairment who--
(a) is residing at the facility or attending
the facility to take part in a program
35
specially designed to meet the
13
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 2--Amendment of Crimes Act 1958
s. 17
developmental or educational needs of
persons with a cognitive impairment;
and
(b) is not his or her spouse or domestic
partner.
5
Penalty: Level 5 imprisonment (10 years
maximum).".
(3) For section 52(2) of the Crimes Act 1958
substitute--
"(2) A worker at a facility must not commit, or be
10
in any way a party to the commission of, an
indecent act with a person with a cognitive
impairment who--
(a) is residing at the facility or attending
the facility to take part in a program
15
specially designed to meet the
developmental or educational needs of
persons with a cognitive impairment;
and
(b) is not his or her spouse or domestic
20
partner.
Penalty: Level 6 imprisonment (5 years
maximum).".
(4) In section 52(3) of the Crimes Act 1958--
(a) after "unless" insert "the accused satisfies
25
the court on the balance of probabilities
that";
(b) for "de facto spouse of the resident"
substitute "domestic partner of the person
residing at or attending the facility".
30
14
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 2--Amendment of Crimes Act 1958
s. 18
(5) After section 52(3) of the Crimes Act 1958
insert--
"(4) If consent is relevant to a charge under this
section, the prosecution bears the burden of
proving lack of consent.".
5
18. New section 58 substituted
For section 58 of the Crimes Act 1958
substitute--
"58. Procuring sexual penetration of a child
(1) A person aged 18 years or more must not
10
solicit or procure a child under the age of
16 years to take part in an act of sexual
penetration, or an indecent act (within the
meaning of Subdivision (8D)), outside
marriage with him or her or another person.
15
Penalty: Level 5 imprisonment (10 years
maximum).
(2) A person aged 18 years or more must not
solicit or procure another person to take part
in an act of sexual penetration, or an indecent
20
act (within the meaning of Subdivision
(8D)), outside marriage with a child under
the age of 16 years.
Penalty: Level 5 imprisonment (10 years
maximum).
25
(3) A person aged 18 years or more must not
solicit or procure a 16 or 17 year old child to
whom he or she is not married and who is
under his or her care, supervision or
authority to take part in an act of sexual
30
penetration, or an indecent act (within the
meaning of Subdivision (8D)), with him or
her or another person.
Penalty: Level 5 imprisonment (10 years
maximum).
35
15
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 2--Amendment of Crimes Act 1958
s. 18
(4) If--
(a) a person does an act or thing referred to
in sub-section (1), (2) or (3) outside, or
partly outside, Victoria; and
(b) there is a real and substantial link
5
within the meaning of sub-section (5)
between the doing of the act or thing
and Victoria--
those sub-sections apply to the act or thing as
if it had been done wholly within Victoria.
10
(5) For the purposes of sub-section (4), there is a
real and substantial link with Victoria--
(a) if a significant part of the conduct
relating to, or constituting the doing of,
the act or thing occurred in Victoria; or
15
(b) where the act or thing was done wholly
outside Victoria, if the act or thing was
done with the intention that the act of
sexual penetration or the indecent act
occur in Victoria.
20
(6) For the purposes of sub-section (3), and
without limiting that sub-section, a child is
under the care, supervision or authority of a
person if the person is--
(a) the child's teacher;
25
(b) the child's foster parent;
(c) the child's legal guardian;
(d) a minister of religion with pastoral
responsibility for the child;
(e) the child's employer;
30
(f) the child's youth worker;
(g) the child's sports coach;
16
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 2--Amendment of Crimes Act 1958
s. 19
(h) the child's counsellor;
(i) the child's health professional;
(j) a member of the police force acting in
the course of his or her duty in respect
of the child;
5
(k) employed in, or providing services in, a
remand centre, youth residential centre,
youth training centre or prison and is
acting in the course of his or her duty in
respect of the child.".
10
19. Repeal of section 60
Section 60 of the Crimes Act 1958 is repealed.
__________________
17
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 3--Amendment of Crimes (Criminal Trials) Act 1999
s. 20
See: PART 3--AMENDMENT OF CRIMES (CRIMINAL TRIALS)
Act No.
ACT 1999
35/1999 and
amending
Act Nos
20. Definition
53/2000 and
18/2005.
In section 3 of the Crimes (Criminal Trials) Act
LawToday:
1999 insert the following definition--
5 www.dms.
dpc.vic.
' "cognitive impairment" includes impairment
gov.au
because of mental illness, intellectual
disability, dementia or brain injury;'.
21. Presentment to be filed
(1) In section 4(2) of the Crimes (Criminal Trials)
10
Act 1999, before paragraph (a) insert--
"(aa) in the case of a trial for a sexual offence in
which the complainant is a child or a person
with a cognitive impairment, not more than
7 days after the day on which the defendant
15
is committed for trial; or".
(2) In section 4(2)(a) of the Crimes (Criminal
Trials) Act 1999, for "a" (where first appearing)
substitute "any other".
(3) After section 4(5) of the Crimes (Criminal
20
Trials) Act 1999 insert--
"(6) If a recording referred to in section 41G of
the Evidence Act 1958 is admitted in
evidence in a trial under section 41H of that
Act, then despite anything to the contrary in
25
the Crimes Act 1958 or in any other Act, the
presentment can only be amended in
accordance with an order made by the court
under section 372 of the Crimes Act 1958.".
18
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 3--Amendment of Crimes (Criminal Trials) Act 1999
s. 22
22. Directions hearing
After section 5(4)(b) of the Crimes (Criminal
Trials) Act 1999 insert--
"(ba) in the case of a trial for a sexual offence in
which the complainant is a child or a person
5
with a cognitive impairment, require the
prosecutor to advise as to the availability of
the complainant, and the accused to advise as
to his or her own availability, for the special
hearing to be held under section 41G of the
10
Evidence Act 1958;".
23. Manner of giving evidence
In section 20(3) of the Crimes (Criminal Trials)
Act 1999, after "sections" insert "41G,".
__________________
19
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 4--Amendment of Evidence Act 1958
s. 24
See: PART 4--AMENDMENT OF EVIDENCE ACT 1958
Act No.
6246.
24. Definitions
Reprint No. 14
as at 6 June
In section 3(1) of the Evidence Act 1958--
2002 and
amending
Act Nos (a) insert the following definitions--
20/2004,
60/2004,
' "child" means a person who is under the
5 72/2004,
age of 18 years;
108/2004,
15/2005 and
"cognitive impairment" includes
18/2005.
LawToday:
impairment because of mental illness,
www.dms.
intellectual disability, dementia or brain
dpc.vic.
gov.au
injury;';
10
(b) the definition of "impaired" is repealed.
25. Evidence of children and persons with a cognitive
impairment
(1) Insert the following heading to section 23 of the
Evidence Act 1958--
15
"Evidence of children and persons with a
cognitive impairment".
(2) For section 23(1) of the Evidence Act 1958
substitute--
"(1) Subject to this section, a child or a person
20
with a cognitive impairment is competent
and compellable to give evidence.
(1A) A child or a person with a cognitive
impairment is competent to give sworn
evidence only if he or she is capable of
25
understanding that, in giving evidence, he or
she is under an obligation to give truthful
evidence.
20
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Crimes (Sexual Offences) Act 2005
Act No.
Part 4--Amendment of Evidence Act 1958
s. 25
(1B) Subject to sub-section (1C), a child or a
person with a cognitive impairment who is
not competent to give sworn evidence is
competent to give unsworn evidence only if
he or she is capable of understanding, and of
5
giving an answer that can be understood to, a
question that is put to him or her.
(1C) If a child or a person with a cognitive
impairment is not capable of understanding,
and of giving an answer that can be
10
understood to, a question that is put to him or
her, that child or person is not competent to
give evidence about the fact to which that
question relates, but may be competent to
give evidence about another fact that relates
15
to a question which the child or person is
capable of understanding and of giving to it
an answer that can be understood.
(1D) If a child or a person with a cognitive
impairment is competent to give evidence,
20
the court must, before the evidence is given,
explain to the child or person in the absence
of the jury (if any)--
(a) the importance of telling the truth and
of not telling lies; and
25
(b) that he or she may be asked questions
that he or she does not know, or cannot
remember, the answer to, and that he or
she should let the court know if this
occurs; and
30
(c) that he or she may be asked questions
that make suggestions that are true or
untrue and that he or she should agree
with the statements that are true and
should not feel pressured to agree with
35
statements that he or she believes are
untrue.".
21
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Crimes (Sexual Offences) Act 2005
Act No.
Part 4--Amendment of Evidence Act 1958
s. 26
(3) In section 23(2) of the Evidence Act 1958, for
"person with impaired mental functioning or
under the age of 14" substitute "child or a person
with a cognitive impairment".
(4) In section 23(2A) of the Evidence Act 1958, for
5
"people with impaired mental functioning or
children" substitute "children or persons with a
cognitive impairment".
26. Repeal of section 23A
Section 23A of the Evidence Act 1958 is
10
repealed.
27. New section 32AB inserted
Before section 32B of the Evidence Act 1958
insert--
"32AB. Guiding principles
15
It is the intention of Parliament that in
interpreting and applying Divisions 3 and
3AA and this Division in any legal
proceeding that relates (wholly or partly) to a
charge for a sexual offence, courts are to
20
have regard to the fact that--
(a) there is a high incidence of sexual
violence within society; and
(b) sexual offences are significantly under-
reported; and
25
(c) a significant number of sexual offences
are committed against women, children
and other vulnerable persons including
persons with a cognitive impairment;
and
30
(d) offenders are commonly known to their
victims; and
22
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Crimes (Sexual Offences) Act 2005
Act No.
Part 4--Amendment of Evidence Act 1958
s. 28
(e) sexual offences often occur in
circumstances where there is unlikely
to be any physical signs of an offence
having occurred.".
28. Definition
5
In section 32B(1) of the Evidence Act 1958, in
the definition of "protected evidence", for
"adduced" substitute "produced or adduced".
29. Exclusion of evidence of confidential
communications
10
(1) For section 32C(1) of the Evidence Act 1958
substitute--
"(1) In a legal proceeding--
(a) a party cannot seek to compel another
party to produce a document containing
15
a confidential communication;
(b) a document is not to be produced if it
would disclose a confidential
communication;
(c) evidence is not to be adduced if it
20
would disclose--
(i) a confidential communication; or
(ii) the contents of a document
recording a confidential
communication--
25
unless the court grants leave to compel the
production of the document or to produce it
or to adduce the evidence, and the party
seeking to have the document produced or to
produce it or to adduce the evidence has
30
given notice of their intention in accordance
with sub-section (2).".
23
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Crimes (Sexual Offences) Act 2005
Act No.
Part 4--Amendment of Evidence Act 1958
s. 30
(2) In section 32C(2) of the Evidence Act 1958--
(a) for "adduce" substitute "compel the
production of, or to produce or adduce,";
(b) after "before the evidence is proposed to be"
insert "compelled to be produced, produced
5
or".
(3) In section 32C(7) of the Evidence Act 1958, after
"is not to be" insert "compelled to be produced,
produced or".
30. Restriction on granting leave
10
(1) In section 32D(1) of the Evidence Act 1958--
(a) After "A court must not grant leave" insert
"to compel the production of, to produce or";
and
(b) for paragraph (a) substitute--
15
"(a) the evidence will, either by itself or
having regard to other evidence
produced or adduced or to be produced
or adduced by the party seeking leave,
have substantial probative value to a
20
fact in issue; and".
(2) For section 32D(2) of the Evidence Act 1958
substitute--
"(2) Without limiting the matters that the court
may take into account for the purposes of
25
sub-section (1)(c), the court must take into
account--
(a) the likelihood, and the nature or extent,
of harm that would be caused to the
protected confider if the protected
30
evidence is produced or adduced;
(b) the extent to which the protected
evidence is necessary to allow the
accused to make a full defence;
24
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Crimes (Sexual Offences) Act 2005
Act No.
Part 4--Amendment of Evidence Act 1958
s. 31
(c) the need to encourage victims of sexual
offences to seek counselling and the
extent to which victims may be
discouraged to do so, or the extent to
which the effectiveness of counselling
5
may be diminished, if the protected
evidence were produced or adduced;
(d) whether the party seeking to compel the
production of or to produce or adduce
the protected evidence is doing so on
10
the basis of a discriminatory belief or
bias;
(e) whether the protected confider objects
to the disclosure of the protected
evidence;
15
(f) the nature and extent of the reasonable
expectation of confidentiality and the
potential prejudice to the privacy of any
person.".
(3) In section 32D(3) of the Evidence Act 1958--
20
(a) for "Leave may be granted to adduce
evidence of" substitute "A court may grant
leave to compel the production of, or to
produce or adduce,";
(b) after "seeking to" insert "compel its
25
production or to produce or".
31. Limitations on privilege
(1) In section 32E(1) of the Evidence Act 1958 after
"prevent the" insert "production or".
(2) In section 32E(3) of the Evidence Act 1958 after
30
"consent to the" insert "production or".
25
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Crimes (Sexual Offences) Act 2005
Act No.
Part 4--Amendment of Evidence Act 1958
s. 32
32. Insertion of Note
At the foot of the heading to Division 3 of Part II
of the Evidence Act 1958 insert--
"Note: Section 32AB sets out guiding principles for
5 interpreting and applying this Division.".
33. Special rules of evidence in relation to certain
offences which relate to rape
(1) In section 37A(1) of the Evidence Act 1958, in
Rule (2)(a) and (b), after "activities" insert
"(whether consensual or non-consensual)".
10
(2) In section 37A(1) of the Evidence Act 1958, for
Rule (3)(a) substitute--
"(a) it is satisfied that the evidence has substantial
relevance to a fact in issue and that it is in
the interests of justice to allow the cross-
15
examination or to admit the evidence, having
regard to--
(i) whether the probative value of the
evidence outweighs the distress,
humiliation and embarrassment that the
20
complainant may experience as a result
of the cross-examination or the
admission of the evidence, in view of
his or her age and the number and
nature of the questions that he or she is
25
likely to be asked; and
(ii) the risk that the evidence may arouse
discriminatory belief or bias, prejudice,
sympathy or hostility in the jury; and
(iii) the need to respect the complainant's
30
personal dignity and privacy; and
(iv) the right of the accused person to fully
answer and defend the charge; or".
26
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Act No.
Part 4--Amendment of Evidence Act 1958
s. 34
(3) In section 37A(1) of the Evidence Act 1958, in
Rule (4) after "sexual activities" insert ", or had
freely agreed to engage in sexual activity with the
accused person or another person other than the
sexual activity to which the charge relates,".
5
(4) In section 37A(1) of the Evidence Act 1958, after
Rule (4) insert--
"(4A) Without limiting Rule (4), evidence of a kind
referred to in that Rule is not admissible to
support an inference that the complainant is
10
the type of person who is more likely to have
consented to the sexual activity to which the
charge relates.".
(5) In section 37A(1) of the Evidence Act 1958, in
Rule (5)(c), for "(3) and (4)" substitute "(3), (4)
15
and (4A)".
(6) In section 37B(2) of the Evidence Act 1958, for
"impaired mental functioning" substitute
"a cognitive impairment".
34. Alternative arrangements for giving evidence in
20
certain proceedings
(1) Before section 37C(2) of the Evidence Act 1958
insert--
"(1) This section does not apply to a witness who
is a complainant in relation to a charge for a
25
sexual offence and who is a child or a person
with a cognitive impairment.
Note: Section 41E provides for alternative
arrangements for the giving of evidence by a
30 complainant who is a child or a person with a
cognitive impairment in legal proceedings that
relate to a charge for a sexual offence.".
(2) In section 37C(2)(a)(iii) of the Evidence Act
1958, for "1958; or" substitute "1958.".
27
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Act No.
Part 4--Amendment of Evidence Act 1958
s. 35
(3) Section 37C(2)(b) of the Evidence Act 1958 is
repealed.
35. New section 37CA inserted
After section 37C of the Evidence Act 1958
insert--
5
'37CA. Special rules for cross-examination of
protected witnesses
(1) This section applies to a legal proceeding
that relates (wholly or partly) to a charge for
a sexual offence.
10
(2) In this section--
"family member", in relation to the
complainant or accused person,
includes--
(a) a person who is or has been
15
married to the complainant or
accused person; and
(b) a person who has or has had an
intimate personal relationship with
the complainant or accused
20
person; and
(c) a person who is or has been the
father, mother, step-father or step-
mother of the complainant or
accused person; and
25
(d) a child who normally or regularly
resides with the complainant or
accused person; and
(e) a guardian of the complainant or
accused person; and
30
(f) another person who is or has been
ordinarily a member of the
household of the complainant or
accused person;
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Act No.
Part 4--Amendment of Evidence Act 1958
s. 35
"protected witness" means--
(a) the complainant; or
(b) a family member of the
complainant; or
(c) a family member of the accused
5
person; or
(d) any other witness whom the court
declares under sub-section (3) to
be a protected witness.
(3) The court may at any time declare a witness
10
to be a protected witness.
(4) A protected witness must not be personally
cross-examined by the accused person.
(5) If the accused person is not legally
represented, the court must--
15
(a) inform the accused person and the jury
that the accused person is not permitted
personally to cross-examine a protected
witness; and
(b) ask the accused person whether he or
20
she has sought to obtain legal
representation for the cross-
examination of a protected witness; and
(c) if satisfied that the accused person has
not had a reasonable opportunity to
25
obtain legal representation, grant an
adjournment if so requested by the
accused person.
(6) If the accused person does not obtain legal
representation for the cross-examination of a
30
protected witness (after being given a
reasonable opportunity to do so), the court
must order Victoria Legal Aid to provide
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Act No.
Part 4--Amendment of Evidence Act 1958
s. 35
legal representation for the accused person
for that purpose.
(7) Despite anything in the Legal Aid Act 1978,
Victoria Legal Aid must provide legal
representation in accordance with an order
5
under sub-section (6).
(8) A legal practitioner provided by Victoria
Legal Aid must act in the best interests of the
accused person if the accused person does
not give any instructions to that legal
10
practitioner.
(9) If the accused person refuses the legal
representation provided to him or her in
accordance with sub-section (7), or
otherwise refuses to co-operate, the court
15
must warn the accused person that he or she
will not be permitted to adduce evidence
from a witness in relation to a fact in issue
with the intention of contradicting the
evidence of a protected witness in relation to
20
that fact, if the fact upon which he or she
intends to rely to contradict the evidence of
the protected witness has not been put to that
protected witness during cross-examination.
(10) If the accused person is only legally
25
represented for the cross-examination of a
protected witness the court must warn the
jury--
(a) that it is routine practice for an
unrepresented accused person to obtain
30
or be provided with legal representation
for the cross-examination of a protected
witness; and
30
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Act No.
Part 4--Amendment of Evidence Act 1958
s. 36
(b) that no adverse inference may be drawn
against the accused person as a result of
the cross-examination not being
conducted by the accused personally;
and
5
(c) that the evidence given under cross-
examination is not to be given any
greater or lesser weight as a result of
the cross-examination not being
conducted by the accused personally.'.
10
36. Video link evidence from overseas in certain
proceedings
In section 37D(8) of the Evidence Act 1958, for
"37B or 37C" substitute "37B, 37C or 41E".
37. New section 37E inserted
15
After section 37D of the Evidence Act 1958
insert--
"37E. Evidence of specialised knowledge in
certain cases
Despite any rule of law to the contrary, in
20
any legal proceeding that relates (wholly or
partly) to a charge for a sexual offence, the
court may receive evidence of a person's
opinion that is based on that person's
specialised knowledge (acquired through
25
training, study or experience) of--
(a) the nature of sexual offences; and
(b) the social, psychological and cultural
factors that may affect the behaviour of
a person who has been the victim, or
30
who alleges that he or she has been the
victim, of a sexual offence, including
the reasons that may contribute to a
delay on the part of the victim to report
the offence.".
35
31
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Act No.
Part 4--Amendment of Evidence Act 1958
s. 38
38. New Division 3AA inserted
After section 41 of the Evidence Act 1958
insert--
'Division 3AA--Examination and Cross-
Examination of Certain Witnesses
5
41A. Definition
In this Division--
"child complainant" means a complainant,
in relation to a charge for a sexual
offence, who is a child.
10
41B. Application of Division
If a provision of this Division is inconsistent
with a provision of Division 3, the provision
of this Division prevails to the extent of the
inconsistency.
15
Note: Section 32AB sets out guiding principles for
interpreting and applying this Division.
41C. Evidence of specialised knowledge to
determine competency
If, in a legal proceeding that relates (wholly
20
or partly) to a charge for a sexual offence, a
child or a person with a cognitive
impairment is called as a witness, the court
may receive evidence of a person's opinion
that is based on that person's specialised
25
knowledge (acquired through training, study
or experience) for the purpose of
determining whether or not the child or
person is competent to give sworn or
unsworn evidence.
30
Note: Section 23 provides for the giving of evidence
by children and persons with a cognitive
impairment.
32
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Act No.
Part 4--Amendment of Evidence Act 1958
s. 38
41D. Evidence of previous representations
made by child complainants
(1) If, in a legal proceeding that relates (wholly
or partly) to a charge for a sexual offence, a
child complainant who is under 17 years of
5
age and who has made a previous
representation is available to give
evidence--
(a) about the existence of a fact of which
he or she had personal knowledge and
10
that he or she intended to assert by the
representation; or
(b) if the child complainant's credibility is
relevant, to support his or her
credibility--
15
the hearsay rule, subject to sub-section (2),
does not apply to evidence of the
representation that is given by--
(c) the child complainant; or
(d) a person who saw, heard or otherwise
20
perceived the representation being
made.
(2) Sub-section (1) does not apply unless the
court is satisfied that the evidence is relevant
to a fact in issue and is sufficiently probative,
25
having regard to the nature and content of
the representation and the circumstances in
which it was made.
(3) A witness has personal knowledge of the
asserted fact if his or her knowledge of that
30
fact was, or might reasonably be supposed to
have been, based on something that the
person saw, heard or otherwise perceived,
other than a previous representation made by
another person about the fact.
35
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Act No.
Part 4--Amendment of Evidence Act 1958
s. 38
(4) Evidence of the kind referred to in sub-
section (1) is admissible for either or both of
the following purposes--
(a) to prove the truth of the fact contained
in the representation; or
5
(b) to support the credibility of the child
complainant as a witness.
(5) If the court receives evidence of the kind
referred to in sub-section (1), the court must
warn the jury that evidence of that kind may
10
not be as reliable as original evidence.
(6) Nothing in this section takes away from, or
limits, any discretion a court has to exclude
evidence.
41E. Alternative arrangements for giving of
15
evidence in certain proceedings
(1) Subject to sub-section (2), in a legal
proceeding that relates (wholly or partly) to a
charge for a sexual offence, the court must
direct that any of the following alternative
20
arrangements be made for the giving of
evidence by a child complainant or a
complainant with a cognitive impairment--
(a) permitting the evidence to be given
from a place other than the courtroom
25
by means of closed-circuit television or
other facilities that enable
communication between that place and
the courtroom;
(b) using screens to remove the defendant
30
from the witness' direct line of vision;
34
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Crimes (Sexual Offences) Act 2005
Act No.
Part 4--Amendment of Evidence Act 1958
s. 38
(c) permitting a person chosen by the
witness and approved by the court for
this purpose, to be beside the witness
while he or she is giving evidence for
the purpose of providing emotional
5
support to him or her.
(2) The court must direct that the alternative
arrangement referred to in sub-section (1)(a)
be made unless--
(a) the court is satisfied that the
10
complainant--
(i) is aware of his or her right to give
evidence in accordance with the
arrangement referred to in sub-
section (1)(a); and
15
(ii) is able and wishes to give
evidence in the courtroom; and
(b) the court, on the application of the
prosecution, determines not to direct
that the arrangement referred to in sub-
20
section (1)(a) be made.
(3) The court must direct that any evidence
given by a complainant in accordance with
the arrangement referred to in sub-section
(1)(a) is recorded.
25
(4) If a court directs that alternative
arrangements be made for the giving of
evidence by a witness, the judge must warn
the jury not to draw any inference adverse to
the defendant or give the evidence any
30
greater or lesser weight because of the
making of those arrangements.
35
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Act No.
Part 4--Amendment of Evidence Act 1958
s. 38
(5) Any place outside the courtroom where a
witness is permitted to give evidence under
this section is to be taken to be part of the
courtroom while the witness is there for the
purpose of giving evidence.
5
(6) The court may at any time in the course of
the proceeding vary or revoke a direction
made under this section either of its own
motion or on the application of a party to the
proceeding.
10
41F. Improper questions
(1) If, during cross-examination, a witness who
is under the age of 18 years or who has a
cognitive impairment is asked a question
that, in the opinion of the court, is--
15
(a) confusing or misleading; or
(b) phrased in inappropriate language; or
(c) annoying, harassing, intimidating,
offensive, oppressive or unduly
repetitive--
20
whether because of its content, or the manner
in which it is structured or sequenced or the
tone in which it is put, having regard to the
matters set out in sub-section (2), the court
must disallow the question or warn the
25
witness that he or she is not obliged to
answer the question.
(2) Without limiting the matters that the court
may have regard to for the purposes of sub-
section (1), the court must consider--
30
(a) any relevant condition or characteristic
of the witness, including his or her age,
cultural background, personality,
education and level of understanding;
and
35
36
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Crimes (Sexual Offences) Act 2005
Act No.
Part 4--Amendment of Evidence Act 1958
s. 38
(b) any cognitive impairment that the
witness is, or appears to be, subject to.
(3) Nothing in this section takes away from, or
limits, section 39 or 40.
41G. Pre-recording evidence at special hearing
5
(1) This section applies to a legal proceeding,
other than a committal proceeding, that
relates (wholly or partly) to a charge for a
sexual offence.
(2) Subject to sub-section (3), the whole of the
10
evidence of a child complainant or of a
complainant with a cognitive impairment
(including cross-examination and re-
examination) must be--
(a) taken at a special hearing under this
15
section and video recorded; and
(b) presented to the court in the form of
that recording.
(3) The court may, on the application of the
prosecution, direct that sub-section (2) is not
20
to apply and that the complainant is to give
direct testimony in the proceeding if the
court is satisfied that the complainant--
(a) is aware of his or her right to have his
or her evidence taken at a special
25
hearing under this section and video
recorded; and
(b) is able and wishes to give direct
testimony in the proceeding.
37
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Act No.
Part 4--Amendment of Evidence Act 1958
s. 38
(4) If a special hearing is to be held, it must be
held--
(a) within 21 days after the day on which
the defendant is committed for trial;
and
5
(b) before the court at which presentment is
made.
(5) The court may fix a longer time for the
holding of a special hearing if the court is
satisfied that it is in the interests of justice to
10
do so because of the existence of exceptional
circumstances.
(6) At a special hearing--
(a) the defendant and his or her legal
practitioner are to be present in the
15
courtroom;
(b) the defendant--
(i) is not to be in the same room as
the complainant when the
complainant's evidence is being
20
taken; but
(ii) is entitled to see and hear the
complainant while the
complainant is giving evidence
and to have at all times the means
25
of communicating with his or her
legal practitioner;
(c) no person, other than a person
authorised by the court, is to be present
in the same room as the complainant
30
when the complainant's evidence is
being taken;
38
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Crimes (Sexual Offences) Act 2005
Act No.
Part 4--Amendment of Evidence Act 1958
s. 38
(d) the evidence of the complainant is to be
given by means of closed-circuit
television that enables communication
between the room in which the
complainant is present and the
5
courtroom;
(e) except as provided by this section, the
usual rules of evidence apply.
(7) The room in which the complainant's
evidence is taken is to be taken to be part of
10
the courtroom while the complainant is there
for the purpose of giving evidence.
41H. Use of pre-recorded evidence
(1) Subject to sub-section (2), a recording
referred to in section 41G is admissible in
15
evidence as if its contents were the direct
testimony of the witness--
(a) in the proceeding; and
(b) unless the relevant court otherwise
orders, in--
20
(i) any rehearing or re-trial of, or
appeal from, the proceeding; or
(ii) another proceeding in the same
court for the relevant charge or for
another charge arising out of the
25
same, or the same set of,
circumstances; or
(iii) a civil proceeding arising from the
same facts as those on which the
charge for the relevant offence is
30
founded.
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Crimes (Sexual Offences) Act 2005
Act No.
Part 4--Amendment of Evidence Act 1958
s. 38
(2) The court may rule as inadmissible the whole
or any part of the contents of a recording
and, if so, the court may direct that the
recording be edited or altered to delete any
part of it that is inadmissible.
5
(3) Subject to sub-section (2), the whole of a
recording referred to in section 41G must be
heard by the court and the jury.
(4) The admissibility of the recording of the
evidence of a child is not affected only
10
because the child attains the age of 18 years
before the evidence is presented in a
proceeding.
(5) The judge must warn the jury not to draw
any inference adverse to the defendant or
15
give the evidence of the witness any greater
or lesser weight because it is recorded.
(6) Subject to sub-section (9), if under this
section the recorded evidence of a witness is
admitted into evidence in a proceeding, the
20
witness is not required to attend the
proceeding unless required to do so for
cross-examination or re-examination.
(7) A witness whose evidence is recorded under
section 41G cannot be cross-examined or
25
re-examined without leave.
(8) A court must not grant leave to cross-
examine a witness referred to in sub-
section (7) unless satisfied that--
(a) the defendant is seeking leave because
30
of becoming aware of a matter of which
he or she could not reasonably have
been aware at the time of the recording;
or
40
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 4--Amendment of Evidence Act 1958
s. 38
(b) if the witness were giving direct
testimony in the proceeding, he or she
could, in the interests of justice, be
recalled to give further evidence; or
(c) it is otherwise in the interests of justice
5
to permit the witness to be cross-
examined or re-examined.
(9) If leave is granted under sub-section (8), the
witness must attend the proceeding to be
cross-examined or re-examined.'.
10
__________________
41
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Crimes (Sexual Offences) Act 2005
Act No.
Part 5--Amendment of Magistrates' Court Act 1989
s. 39
See: PART 5--AMENDMENT OF MAGISTRATES' COURT ACT
Act No.
1989
51/1989.
Reprint No. 11
as at 1 July
39. Definitions
2005
and
In clause 1(1) of Schedule 5 to the Magistrates'
amending
Court Act 1989 insert the following definition--
5 Act Nos
77/2004,
' "cognitive impairment" includes impairment because of
2/2005,
16/2005, mental illness, intellectual disability, dementia or
18/2005,
brain injury;'.
19/2005,
45/2005,
40. New Part 3A of Schedule 5 inserted
62/2005 and
69/2005.
After Part 3 of Schedule 5 to the Magistrates'
10 LawToday:
Court Act 1989 insert--
www.dms.
dpc.vic.
gov.au "PART 3A--TIME LIMIT APPLICABLE TO
CERTAIN COMMITTAL PROCEEDINGS
10A. Time limit applicable to certain committal
15 proceedings
(1) This clause applies to a committal proceeding for a
sexual offence if--
(a) the complainant is a child or a person with a
cognitive impairment; and
20 (b) a witness, other than the complainant, is to be
cross-examined in the proceeding.
(2) The Court must determine a committal proceeding
within the period of 60 days after the committal
mention date or the final committal mention date if
25 more than one committal mention hearing is held.
(3) The Court may fix a longer or shorter period for the
determination of a committal proceeding but cannot
do so unless the Court is satisfied that, having regard
to all the circumstances of the case including the
30 seriousness of the offence and the overall interests of
justice, another period should be fixed because of the
existence of exceptional circumstances or another
good and sufficient reason.
42
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Crimes (Sexual Offences) Act 2005
Act No.
Part 5--Amendment of Magistrates' Court Act 1989
s. 41
(4) Sub-clause (2) does not apply--
(a) if the defendant has failed to appear in
accordance with the conditions of his or her
bail; or
5 (b) if a warrant to arrest the defendant has been
issued and at the end of the relevant period
referred to in clause 4(2) from the
commencement of the proceeding for the
offence the defendant has not been arrested; or
10 (c) if the defendant requests that the committal
proceeding be determined after the period
referred to in sub-clause (2) and the Court is
satisfied that in the interests of justice the
request should be granted.
15 (5) If a committal proceeding has not been determined
before the expiry of the period referred to in sub-
clause (2), or any other period fixed under sub-
clause (3), the Court may, on the application of the
defendant, order the defendant to be discharged.".
41. Procedure where hand-up brief served
20
In Part 5 of Schedule 5 to the Magistrates' Court
Act 1989, before clause 12 insert--
"11A. No cross-examination of certain witnesses
Despite anything to the contrary in this Part, the Court
25 must not grant leave to cross-examine a witness
who--
(a) is a complainant in a legal proceeding that
relates (wholly or partly) to a charge for a
sexual offence; and
30 (b) is a child or a person with a cognitive
impairment; and
(c) made a statement a copy of which was served
in the hand-up brief or a transcript of a
recording of whose evidence-in-chief or
35 examination under section 56A was served in
the hand-up brief.".
__________________
43
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 6--Consequential Amendment of Other Acts
s. 42
PART 6--CONSEQUENTIAL AMENDMENT OF OTHER
ACTS
42. Consequential amendment of Crimes Act 1958
In Schedule 8 to the Crimes Act 1958--
(a) in clause 7(h), for "(sexual relationship with"
5
substitute "(persistent sexual abuse of";
(b) in clause 7(j) for "people with impaired
mental functioning)" substitute "persons
with a cognitive impairment)".
43. Consequential amendment of Sentencing Act 1991
10
(1) In section 3(1) of the Sentencing Act 1991, in the
definition of "serious offence" in paragraph
(c)(viii), for "(sexual relationship with" substitute
"(persistent sexual abuse of".
(2) In Schedule 1 to the Sentencing Act 1991--
15
(a) after clause 1(a)(i) insert--
"(ia) section 38A (compelling sexual penetration) if
the person against whom the offence is
committed is a child;";
(b) in clause 1(a)(viii), for "(sexual relationship
20
with" substitute "(persistent sexual abuse
of";
(c) in clause 1(a)(x), for "people with impaired
mental functioning)" substitute "persons
with a cognitive impairment by providers of
25
medical or therapeutic services)";
(d) in clause 1(a)(xi), for "residents of
residential facilities" substitute "persons
with a cognitive impairment by providers of
special programs";
30
(e) in clause 1(a)(xvi), for "child under the age
of 16" substitute "a child".
44
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 6--Consequential Amendment of Other Acts
s. 44
44. Consequential amendment of Serious Sex Offenders
Monitoring Act 2005
In the Schedule to the Serious Sex Offenders
Monitoring Act 2005--
(a) in the Note at the foot of item 1--
5
(i) for "impaired mental functioning"
substitute "a cognitive impairment by
providers of medical or therapeutic
services";
(ii) for "resident of residential facility"
10
substitute "person with a cognitive
impairment by providers of special
programs";
(b) after item 1 insert--
15 "1A. An offence against section 38A of the Crimes
Act 1958 (compelling sexual penetration) if the
person against whom the offence is committed
is a child.";
(c) in item 2, for "(sexual relationship with"
substitute "(persistent sexual abuse of";
20
(d) in item 9, after "16" insert "or 17";
(e) in item 10, for "impaired mental functioning"
substitute "a cognitive impairment by
providers of medical or therapeutic
services";
25
(f) in item 11, for "resident of residential
facility" substitute "person with a cognitive
impairment by providers of special
programs";
(g) in item 17, for "child under the age of 16"
30
substitute "a child";
(h) item 19 is repealed.
45
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 6--Consequential Amendment of Other Acts
s. 45
45. Consequential amendment of Sex Offenders
Registration Act 2004
(1) In Schedule 1 to the Sex Offenders Registration
Act 2004--
(a) in the Note at the foot of item 1--
5
(i) for "impaired mental functioning"
substitute "a cognitive impairment by
providers of medical or therapeutic
services";
(ii) for "resident of residential facility"
10
substitute "person with a cognitive
impairment by providers of special
programs";
(b) after item 1 insert--
15 "1A. An offence against section 38A of the Crimes
Act 1958 (compelling sexual penetration) if the
person against whom the offence is committed
is a child.";
(c) in item 2, for "(sexual relationship with"
substitute "(persistent sexual abuse of".
20
(2) In Schedule 2 to the Sex Offenders Registration
Act 2004--
(a) in item 4, after "16" insert "or 17";
(b) in item 5, for "impaired mental functioning"
substitute "a cognitive impairment by
25
providers of medical or therapeutic
services";
(c) in item 6, for "resident of residential facility"
substitute "person with a cognitive
impairment by providers of special
30
programs";
(d) in item 12, for "child under the age of 16"
substitute "a child";
(e) item 14 is repealed.
46
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 6--Consequential Amendment of Other Acts
s. 46
(3) In Schedule 3 to the Sex Offenders Registration
Act 2004--
(a) in the Note at the foot of item 1--
(i) for "impaired mental functioning"
substitute "a cognitive impairment by
5
providers of medical or therapeutic
services";
(ii) for "resident of residential facility"
substitute "person with a cognitive
impairment by providers of special
10
programs";
(b) after item 1 insert--
"1A. An offence against section 38A of the Crimes
Act 1958 (compelling sexual penetration) if the
15 person against whom the offence is committed
is a child.".
(4) In Schedule 4 to the Sex Offenders Registration
Act 2004--
(a) in item 3, for "impaired mental functioning"
substitute "a cognitive impairment by
20
providers of medical or therapeutic
services";
(b) in item 4, for "resident of residential facility"
substitute "person with a cognitive
impairment by providers of special
25
programs".
46. Consequential amendment of Victims of Crime
Assistance Act 1996
In section 42(3)(a)(iii) of the Victims of Crime
Assistance Act 1996, for "impaired mental
30
functioning" substitute "a cognitive impairment".
47
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Part 6--Consequential Amendment of Other Acts
s. 47
47. Consequential amendment of Working with
Children Act 2005
In section 51(4) of the Working with Children
Act 2005, for "impaired mental functioning"
substitute "a cognitive impairment".
5
48
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
Crimes (Sexual Offences) Act 2005
Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
49
551344B.I1-16/11/2005 BILL LA INTRODUCTION 16/11/2005
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