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Wrongs Amendment (Prisoner Related Compensation) Bill 2015

PARLIAMENT OF VICTORIA Wrongs Amendment (Prisoner Related Compensation) Bill 2015 TABLE OF PROVISIONS Clause Page 1 Purpose 1 2 Commencement 1 3 New Part VBAA inserted 2 4 Repeal of amending Act 7 Endnotes 8 1 General information 8 581032B.I-4/5/2015 i BILL LA INTRODUCTION 4/5/2015

 


 

PARLIAMENT OF VICTORIA Introduced in the Assembly Wrongs Amendment (Prisoner Related Compensation) Bill 2015 A Bill for an Act to amend the Wrongs Act 1958 to restrict the amount of damages that may be awarded for non-economic loss in respect of mental harm caused by the death or injury of a prisoner if as an adult the claimant has been convicted of an offence and for other purposes. The Parliament of Victoria enacts: 1 Purpose The purpose of this Act is to amend the Wrongs Act 1958 to restrict the amount of damages that may be awarded for non-economic loss in respect 5 of mental harm caused by the death or injury of a prisoner if as an adult the claimant has been convicted of an offence, in particular, a profit motivated offence. 2 Commencement 10 This Act comes into operation on the day after the day on which it receives the Royal Assent. 581032B.I-4/5/2015 1 BILL LA INTRODUCTION 4/5/2015

 


 

Wrongs Amendment (Prisoner Related Compensation) Bill 2015 3 New Part VBAA inserted After Part VB of the Wrongs Act 1958 insert-- "Part VBAA--Awards of damages related to death or injury of 5 prisoners 28LAD Definitions In this Part-- claimant means a person who makes, or is entitled to make, a claim for the 10 recovery of damages for non-economic loss in respect of mental harm caused by the death or injury of a prisoner; court includes tribunal, and, in relation to a claim for damages, means any court or 15 tribunal by or before which the claim falls to be determined; criminal record, in relation to a person, means a document that sets out-- (a) all the person's previous 20 convictions; and (b) in relation to each previous conviction-- (i) the date of the conviction; and 25 (ii) the court in which the conviction took place; and (iii) the place of sitting of that court; and (iv) the offence committed; and 30 (v) the sentence imposed; 581032B.I-4/5/2015 2 BILL LA INTRODUCTION 4/5/2015

 


 

Wrongs Amendment (Prisoner Related Compensation) Bill 2015 Crown Prosecutor has the same meaning as in the Criminal Procedure Act 2009; damages includes any form of monetary compensation; 5 legal practitioner has the same meaning as in the Criminal Procedure Act 2009; mental harm means psychological or psychiatric injury; non-economic loss means any one or more 10 of the following-- (a) pain and suffering; (b) loss of amenities of life; (c) loss of enjoyment of life; police officer has the same meaning as in the 15 Victoria Police Act 2013; prisoner means a person referred to in section 28LAE(1)(a); profit motivated offence means-- (a) an offence referred to in 20 Schedule 2 to the Confiscation Act 1997, and if circumstances are specified in that Schedule in relation to that offence, means an offence committed in those 25 circumstances; or (b) an offence that, at the time it was committed, was an offence referred to in Schedule 2 to the Confiscation Act 1997, and if 30 circumstances were specified in that Schedule in relation to that offence, means an offence committed in those circumstances. 581032B.I-4/5/2015 3 BILL LA INTRODUCTION 4/5/2015

 


 

Wrongs Amendment (Prisoner Related Compensation) Bill 2015 28LAE Application of Part (1) This Part applies to an award of damages for non-economic loss in respect of mental harm if-- 5 (a) the mental harm is caused by the death or injury of a person who was, when the death or injury occurred, the subject of-- (i) a sentence of imprisonment 10 imposed by a court; or (ii) a preventative detention order within the meaning of the Terrorism (Community Protection) Act 2003 or an order 15 for a person's detention made under a corresponding preventative detention law within the meaning of that Act; or (iii) a detention order or interim 20 detention order within the meaning of the Serious Sex Offenders (Detention and Supervision) Act 2009; and (b) the claimant, as an adult, has been 25 convicted of an offence. (2) This Part applies in addition to any other provision of this Act applicable to an award of damages of a kind described in subsection (1). 30 (3) If there is an inconsistency between a provision of this Part and a provision of any other Part of this Act, the provision of this Part prevails to the extent of the inconsistency. 581032B.I-4/5/2015 4 BILL LA INTRODUCTION 4/5/2015

 


 

Wrongs Amendment (Prisoner Related Compensation) Bill 2015 28LAF Assessment of damages (1) In determining an award of damages to which this Part applies, the jury or the court if the trial is without a jury, must-- 5 (a) consider the factors set out in subsection (2); and (b) having regard to those factors, reduce the amount of damages-- (i) in the case of a claimant who has 10 been convicted of an offence other than a profit motivated offence-- by a percentage that the jury or the court (as the case requires) considers appropriate; 15 (ii) in the case of a claimant who has been convicted of an offence that is a profit motivated offence--by a percentage that the jury or the court (as the case requires) 20 considers appropriate, being a percentage that is not less than 90 per cent. (2) For the purposes of subsection (1), the factors are-- 25 (a) the number and seriousness of the claimant's previous convictions; and (b) the nature of the relationship between the claimant and the prisoner including any agreement, arrangement or 30 understanding with respect to criminal activity; and 581032B.I-4/5/2015 5 BILL LA INTRODUCTION 4/5/2015

 


 

Wrongs Amendment (Prisoner Related Compensation) Bill 2015 (c) the relationship (if any) between the conduct constituting an offence for which the claimant has been convicted and the conduct constituting an offence 5 for which the prisoner has been convicted; and (d) the claimant's character, behaviour or attitude at any time, whether before, during or after the commission of an 10 offence for which the claimant has been convicted, including any evidence of rehabilitation, remorse or subsequent offending; and (e) any other factor that the court considers 15 relevant. (3) The jury or the court (as the case requires) may determine a reduction of 100 per cent, with the result that the claim for damages is defeated. 20 (4) The jury or the court (as the case requires) must specify the percentage by which the amount of damages is reduced under this Part. (5) Except as provided by this Part, nothing in 25 this Part affects any other law relating to the discounting of sums awarded as damages. 28LAG Criminal record (1) For the purposes of this Part, the court may require the production of a claimant's 30 criminal record. (2) A claimant's criminal record is inadmissible as evidence unless it is signed by-- (a) a police officer; or (b) a Crown Prosecutor; or 581032B.I-4/5/2015 6 BILL LA INTRODUCTION 4/5/2015

 


 

Wrongs Amendment (Prisoner Related Compensation) Bill 2015 (c) a member of staff of the Office of Public Prosecutions established under the Public Prosecutions Act 1994 who is a legal practitioner. 5 Note Section 178 of the Evidence Act 2008 provides for proof of previous convictions by the filing of a certificate. 28LAH Transitional (1) This Part applies to an award of damages 10 irrespective of when the act or omission causing the death or injury and giving rise to the claim for the recovery of damages occurred. (2) Despite section 14(2) of the Interpretation 15 of Legislation Act 1984, this Part applies to an award of damages in a proceeding that immediately before the commencement of the Wrongs Amendment (Prisoner Related Compensation) Act 2015 has commenced 20 but has not been finally determined.". 4 Repeal of amending Act This Act is repealed on the first anniversary of its commencement. Note 25 The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). 581032B.I-4/5/2015 7 BILL LA INTRODUCTION 4/5/2015

 


 

Wrongs Amendment (Prisoner Related Compensation) Bill 2015 Endnotes Endnotes 1 General information See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. By Authority. Government Printer for the State of Victoria. 581032B.I-4/5/2015 8 BILL LA INTRODUCTION 4/5/2015