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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Crimes (Questioning of Suspects) Act 2000
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purpose 1
2. Commencement 2
3. Principal Act 2
4. Questioning or investigation of person already held for another
matter 2
5. Right to communicate with friend, relative and legal practitioner 9
6. Video-recording of confessions and admissions 9
7. New section 593A inserted in Principal Act 10
593A. Transitional provision--Crimes (Questioning of
Suspects) Act 2000 10
8. Consequential amendments 10
ENDNOTES 11
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PARLIAMENT OF VICTORIA
Initiated in Assembly 22 November 2000
A BILL
to amend the Crimes Act 1958 so as to make further provision for the
questioning or investigation of certain persons who are suspected of
having committed an offence, to amend the Corrections Act 1986 and
for other purposes.
Crimes (Questioning of Suspects) Act
2000
The Parliament of Victoria enacts as follows:
1. Purpose
The main purpose of this Act is to amend the
Crimes Act 1958 so as to make further provision
for the questioning or investigation of certain
5 persons who are suspected of having committed
an offence.
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2. Commencement
This Act comes into operation on the day after the
day on which it receives the Royal Assent.
3. Principal Act
See:
5 In this Act, the Crimes Act 1958 is called the Act No. 6231.
Principal Act. Reprint No. 15
as at
1 September
1999 and
amending Act
No. 26/1999.
LawToday:
www.dms.
dpc.vic.
gov. au
4. Questioning or investigation of person already held
for another matter
(1) In section 464B(1) of the Principal Act--
10 (a) omit "under the age of 17 years";
(b) for paragraph (a) substitute--
"(a) who is--
(i) held in a prison or police gaol; or
(ii) a forensic resident or a security
15 resident within the meaning of the
Intellectually Disabled Persons'
Services Act 1986; or
(iii) a forensic patient or a security
patient within the meaning of the
20 Mental Health Act 1986; or
(iv) detained under section 93 of the
Sentencing Act 1991 in an
approved mental health service
within the meaning of the Mental
25 Health Act 1986 as an
involuntary patient or security
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patient within the meaning of that
Act; and";
(c) in paragraph (b), after "an offence" insert
"(being, in the case of an application in
5 respect of a child, an indictable offence)".
(2) In section 464B(2)(c) of the Principal Act--
(a) for "being held" substitute "who is the
subject of the application";
(b) for sub-paragraph (ii) substitute--
10 "(ii) to the person in charge of the place
where the person is being held or
detained.".
(3) In section 464B(3) of the Principal Act, for "being
held in a prison or police gaol" substitute "who is
15 the subject of the application".
(4) In section 464B of the Principal Act, for sub-
section (5) substitute--
"(4A) The Magistrates' Court or the Children's
Court (as the case may be) must not hear or
20 determine an application under sub-section
(1) unless the person who is the subject of
the application is before the Court.
(4B) If the person who is the subject of an
application under sub-section (1) is not
25 legally represented in a proceeding on the
application, the Magistrates' Court or the
Children's Court (as the case may be)--
(a) must adjourn the hearing of the
proceeding to enable the person to
30 obtain legal representation unless
satisfied that the person has had, or has
refused to have, legal advice provided
to him or her in relation to the
application; and
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(b) must not resume the hearing unless the
person is legally represented or the
Court is satisfied that he or she has had,
or has refused to have, legal advice
5 provided to him or her in relation to the
application.
(4C) The Magistrates' Court or the Children's
Court (as the case may be) may order
Victoria Legal Aid to provide legal
10 assistance (of a kind to which section 26(1)
of the Legal Aid Act 1978 applies) to the
person who is the subject of an application
under sub-section (1) and, despite anything
to the contrary in that Act, Victoria Legal
15 Aid must provide legal assistance in
accordance with the order.
(5) On an application under sub-section (1), the
Magistrates' Court or the Children's Court
(as the case may be) may, if satisfied that it
20 is in the interests of justice to do so but
subject to sub-section (5C), order the transfer
of the custody of the person who is the
subject of the application to the applicant for
the purpose of questioning or investigation
25 for a maximum period of time specified in
the order, being a reasonable period within
which the questioning or investigation may
take place.
(5A) In determining what constitutes a reasonable
30 period for the purposes of an order under
sub-section (5), the Magistrates' Court or the
Children's Court (as the case may be) must
have regard to--
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(a) the matters specified in section
464A(4), with any necessary
modifications; and
(b) if the person is a child, his or her age.
5 (5B) The Magistrates' Court or the Children's
Court (as the case may be), on making an
order under sub-section (5), may make any
further order that it thinks fit as to where,
and the circumstances under which, the
10 questioning or investigation may take place
but it must not order that the questioning or
investigation take place somewhere other
than the place at which the person who is the
subject of the order was held or detained at
15 the time of the application for the order
under sub-section (5) unless it is not
practicable for the questioning or
investigation to take place there.
(5C) The Magistrates' Court or the Children's
20 Court (as the case may be) must not make an
order under sub-section (5) in respect of a
person referred to in sub-section (1)(a)(ii),
(iii) or (iv) unless--
(a) having considered any known likely
25 psychological effect of the questioning
on the person; and
(b) having received evidence (whether oral
or written) on the fitness of the person
to be questioned given by a medical
30 practitioner--
it is satisfied on the balance of probabilities
that the person is fit to be questioned.
(5D) A person is unfit to be questioned for the
purposes of sub-section (5C) if, because the
35 person's mental processes are disordered or
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impaired, the person is or, at some time
during the questioning, will be--
(a) unable to understand the nature of the
questioning (namely that it is
5 questioning to ascertain his or her
involvement in the commission of an
offence); or
(b) unable to follow the course of
questioning; or
10 (c) unable to give instructions to his or her
legal practitioner; or
(d) unable to understand that he or she does
not have to say or do anything but that
anything he or she does say or do may
15 be given in evidence.
(5E) On making an order under sub-section (5) in
respect of a person referred to in sub-section
(1)(a)(ii), (iii) or (iv), the Magistrates' Court
or the Children's Court (as the case may
20 be)--
(a) must include in that order a condition
that--
(i) subject to sub-section (5F), an
independent person is to be
25 present while any questioning or
investigation takes place in
accordance with the order; and
(ii) before the commencement of any
questioning or investigation, the
30 investigating official must allow
the person to communicate with
the independent person in
circumstances in which as far as
practicable the communication
35 will not be overheard; and
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(b) may include in that order any other
condition that it thinks fit in the
interests of the well-being of the person
during any questioning or investigation.
5 (5F) The Magistrates' Court or the Children's
Court (as the case may be) is not required to
include in an order under sub-section (5) a
condition referred to in sub-section (5E)(a)(i)
if the person who is the subject of the order
10 applies to the Court for that condition not to
be included and the Court is satisfied that, in
all the circumstances, it is appropriate not to
include it.
(5G) On making an order under sub-section (5),
15 the Magistrates' Court or the Children's
Court (as the case may be) must inform the
person who is the subject of the order--
(a) that he or she does not have to say or
do anything but that anything he or she
20 does say or do may be given in
evidence; and
(b) that the investigating official must give
him or her the information required to
be given by sub-section (6) and section
25 464C(1).
(5H) The following must be video-recorded--
(a) the giving of any information required
to be given by sub-section (6) and
section 464C(1);
30 (b) any response of the person in custody
to the giving of that information;
(c) any questioning that takes place in
accordance with an order made under
sub-section (5) and anything said by the
35 person questioned.".
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(5) In section 464B(6) of the Principal Act, for "in
custody" substitute "who is the subject of the
order".
(6) In section 464B(8) of the Principal Act--
5 (a) for "with the consent of the person held"
substitute "subject to sub-section (8A)";
(b) in paragraph (b), omit "held".
(7) In section 464B of the Principal Act, after sub-
section (8) insert--
10 "(8A) The Magistrates' Court or the Children's
Court (as the case may be) must not extend a
period of custody ordered under sub-section
(5) or, on a subsequent application under
sub-section (1), make an order against the
15 same person in respect of the same offence
unless satisfied that there is a reasonable
prospect that further questioning or
investigation will assist in determining the
involvement (if any) of the person in the
20 commission of the offence.
(8B) In determining the length of any extension of
a period of custody ordered under sub-
section (5), the Magistrates' Court or the
Children's Court (as the case may be) must
25 have regard to--
(a) the matters specified in section
464A(4), with any necessary
modifications; and
(b) if the person is a child, his or her age.".
30 (8) In section 464B(9) of the Principal Act--
(a) for "in custody" substitute "who is the
subject of the order";
(b) after "held" insert "or detained".
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(9) In section 464B of the Principal Act, after sub-
section (9) insert--
'(10) In this section--
"child", in relation to a person suspected of
5 having committed an offence, means a
person who at the time of the suspected
commission of the offence was under
the age of 17 years but does not include
any person who is of or above the age
10 of 18 years at the time of the making of
an application in respect of him or her
under this section.'.
5. Right to communicate with friend, relative and legal
practitioner
15 In section 464C(3) of the Principal Act, omit
"(except sub-section (1)(a))".
6. Video-recording of confessions and admissions
(1) In section 464H(1) of the Principal Act--
(a) in paragraph (e) for "tape-recorded--"
20 substitute "tape-recorded; or";
(b) after paragraph (e) insert--
"(f) if the confession or admission was
made during questioning in accordance
with an order made under section
25 464B(5), the questioning and anything
said by the person was video-
recorded--";
(c) after "the tape-recording" insert "or video-
recording".
30 (2) In section 464H(3) of the Principal Act--
(a) for "section 464G" substitute "section
464B(5H) or 464G";
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(b) in paragraphs (a) and (b), after "tape-
recording" insert "or video-recording".
(3) In section 464H(4) of the Principal Act, after
"tape-recording" insert "or video-recording".
5 7. New section 593A inserted in Principal Act
After section 593 of the Principal Act insert--
"593A. Transitional provision--Crimes
(Questioning of Suspects) Act 2000
The amendments of this Act made by the
10 Crimes (Questioning of Suspects) Act
2000 applies to any person who is, at any
time on or after the commencement of that
Act, a person of a kind referred to in
section 464B(1)(a), irrespective of when the
15 offence to which the questioning or
investigation relates was committed or
alleged to have been committed.".
8. Consequential amendments
(1) In section 464G of the Principal Act, at the end of
20 the section insert--
"(2) Sub-section (1) is subject to section
464B(5H).".
(2) In section 464I of the Principal Act, after "464H"
insert "(except as provided by an order made
25 under section 464B(5))".
(3) In section 41 of the Corrections Act 1986, after
sub-section (5) insert--
"(6) Nothing in this section applies to any
questioning or investigation by a member of
30 the police force in accordance with an order
made under section 464B(5) of the Crimes
Act 1958.".
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Endnotes
Act No.
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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