Executive Summary and Recommendations
|1||On 21 March 2007, the Legislative Council referred the Criminal Law and Evidence Amendment Bill 2006 (Bill) and the Bill’s policy to the Standing Committee on Legislation (Committee) for inquiry with a reporting deadline of 28 June 2007. Pursuant to the Committee’s requests, the Legislative Council extended the reporting deadline to 30 August 2007. |
|2||The Bill proposes: |
|-||to make amendments to the prosecution of sexual assault cases; |
|-||to introduce a limited prosecution right to appeal against acquittal verdicts in trials heard by Judge and jury; and |
|-||to make other amendments which have been identified in various reviews of crime legislation as well as minor consequential amendments. |
|3||While the Committee has analysed all of the provisions of the Bill, it has only provided comments on specific clauses and the issues raised in respect of them. These issues are summarised as follows: |
|-||Clauses 5 and 9 are discussed in terms of the range of people who should be further ‘protected’ against the commission of grievous bodily harm and serious assault. The Committee has recommended that both clauses be amended so as to increase this range of people (refer to Recommendations 1 and 2). |
|-||Clause 10 is discussed in light of the various significant changes it proposes to make in relation to the prosecution of multiple and persistent sexual conduct with a child who is under 16 years of age. The Committee has recommended that the responsible Minister explain why proposed section 321A(12) of The Criminal Code is required (Recommendation 3). The Committee also draws the attention of the Legislative Council to the ‘Committee Comments’ which have been made in relation to clause 10 of the Bill. |
|-||In the discussion about clause 26, the Committee explores the potential for injustice to occur if the court is or is not authorised to determine a set of material facts which differs from the statement of material facts upon which a guilty plea is based. The Committee supports clause 26. |
|-||Clause 28 of the Bill proposes to restrict the defence opening address in a criminal trial. The Committee is not convinced of the need for the restriction and has recommended that clause 28 be opposed (refer to Recommendation 4). |
|-||Clause 34 is discussed in the context of double jeopardy reform. Clause 34, in introducing a limited prosecution right of appeal against acquittal verdicts, extends the principle of finality in criminal proceedings. A minority of the Committee (comprising Hon Giz Watson MLC) has recommended that the number of times a person be retried following an appeal by the Director of Public Prosecutions be limited to one. |
|-||Clauses 37 and 41 raised concerns about precluding the application of the principle that allows a court to take account of the circumstances that might flow to an offender from being twice exposed to the judicial determination of whether the offender should be imprisoned and if so, for how long. The Committee has recommended that the Bill be amended to take this principle into account (refer to Recommendation 5). |
|-||The Committee has recommended that the proposed amendments to the Criminal Appeals Act 2004 in Part 4 of the Bill be reviewed within five years (refer to Recommendation 6). |
|-||Clause 43 makes admissible, expert opinion evidence of typical patterns of behaviour and responses of child victims of abuse. The Committee supports this clause but has recommended the Bill be amended to clarify, what warnings the judge should make to a jury about this type of evidence (refer to Recommendation 7). |
|-||Clause 47 raised formatting issues in the Bill. The clause links the evidence of mentally impaired people with children in proposed amendments to the Evidence Act 1906. The Committee is of the view that this is inappropriate and has recommended that the Bill be reformatted so as to distinguish their evidence (refer to Recommendation 8). |
|-||Clause 72 seeks to provide an accused person who faces a retrial (resulting from the successful appeal by the prosecution against their acquittal by a jury) with the opportunity to apply for their costs of the retrial to be reimbursed out of the Suitors’ Fund. Having considered whether this proposal is likely to provide adequate reimbursement for the accused person, the Committee supports clause 72. |
Recommendation 1: The Committee recommends that clause 5 of the Criminal Law and Evidence Amendment Bill 2006 be amended so that proposed section 297(4) of The Criminal Code includes private sector health workers (such as nurses and doctors), court security officers, prison officers and volunteer State emergency service workers.
Recommendation 2: The Committee recommends that clause 9 of the Criminal Law and Evidence Amendment Bill 2006 be amended so that section 318(1) of The Criminal Code will be amended to include private sector health workers (such as nurses and doctors), court security officers, prison officers and volunteer State emergency service workers.
Recommendation 3: The Committee recommends that during debate on the Criminal Law and Evidence Amendment Bill 2006, the responsible Minister explain why proposed section 321A(12) of The Criminal Code is required given the effect of proposed new section 321A(6) of The Criminal Code.
Recommendation 4: The Committee recommends that clause 28 of the Criminal Law and Evidence Amendment Bill 2006 be opposed.
Recommendation 5: The Committee recommends that the Government amend clause 41 of the Criminal Law and Evidence Amendment Bill 2006 to expressly enable the Court of Appeal to take into account any materially changed circumstances of an offender.
Recommendation 6: The Committee recommends that the proposed amendments to the Criminal Appeals Act 2004 in Part 4 of the Criminal Law and Evidence Amendment Bill 2006 be reviewed within five years.
Recommendation 7: The Committee recommends that the Government amend clause 43 of the Criminal Law and Evidence Amendment Bill 2006 so as to ensure that trial Judges give a warning to the jury in relation to admissible expert evidence.
Recommendation 8: The Committee recommends that the Government amend the Criminal Law and Evidence Amendment Bill 2006 so that the Evidence Act 1906 distinguishes the evidence of mentally impaired people from that of children.