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A 'new' government and a new Attorney-General saw lots of new criminal laws passed by the NSW Parliament in 2007. As usual they were a mixed bag:
One major reform, which was the product of considered review and submission - consent in sexual assault - has been stuffed up badly. It is inevitable that after a couple of years of chaos, amendments will be made to rectify problems that were obvious and pointed out during the consultation process: problems the government were too stubborn to rectify while the Bill was before Parliament.
Given the number of changes over the last years both in NSW and Federally I have restricted my review to changes to NSW legislation governing: Crimes; Bail; Police Powers and Forensic Procedures; and Criminal Procedure. As I have cautioned in past papers what follows is a summary only. This review is no substitute for reading the new sections in context. It is always handy to check commencement dates by looking to the Schedule at the back of the amended Act.
Part 1 commenced on 18.01.2008.
A new s 66EB Crimes Act 1900 creates offences of procuring or grooming children under 16 years for unlawful sexual activity.
If an adult intentionally procures a child, under 16, for unlawful sexual activity or exposes a child to indecent material or provides a child with an intoxicating substance, with the intention of making it easier to procure the child for unlawful sexual activity they face maximum penalties of between 15 years and 10 years (depending on the age of the child). A police officer pretending to be a child on the internet is still a 'child' if the accused believes that he or she is a child: s 66EB (5). Consent is not a defence to a prosecution under s 66EB: Section 77.
Commenced 7.12.2007.
The offence of possessing or making an explosive (s 93 FA (2)) of the Crimes Act was expanded to include 'supplying explosives'. The maximum penalty is increased from two to three years.
A new ss.11C Drug Misuse and Trafficking Act 1985 prohibits possession of instructions for the manufacture or production of a prohibited drug. So stay off the Internet! There is a defence of reasonable excuse. (c) that the defendant is in possession of the document for the purposes of an activity that is not unlawful, or
(d) that the defendant otherwise has a reasonable excuse for possessing the document This is a good thing as a defence counsel involved in the area I have a rudimentary knowledge of how drugs are manufactured in order to defend my clients!
Commenced 21.12.2007.
The sunset provision with respect to the offence of assault during public disorder has been lifted: s. 59A Crimes Act 1900
Part 1 commenced 27.09.2007.
The definition of "maliciously" has been omitted from s 5 Crimes Act 1900. The word 'maliciously" has also been removed from all sections of the Crimes Act and replaced with "recklessly" or "intentionally".
Section 35 of the Crimes Act 1900 has been rewritten or recast as "reckless grievous bodily harm or wounding. There are also increased penalties said to be a response to recent rock attacks on vehicles. This is despite the fact that one of the 'outrages' used to justify the law turned out to be a false claim. Increasing the penalties was intended to send a strong message that this dangerous activity should stop.
Schedule 2 contains a number of amendments that update cross-referenced provisions, renames Part and Division headings and renumbers some offence provisions. Schedule 3.1 makes consequential amendments to the Criminal Procedure Act 1986.
Part 2 commenced 15.2.2008.
Part 1 saw the removal of the definition of 'maliciously' from s. 5 Crimes Act. The Eleventh Schedule 'savings and transitional provisions' makes it clear that the repeal does not affect the operation of any provision of the Crimes Act (including a repealed provision) that refers to 'malicious' or 'maliciously' or of any indictment or charge in which malice is by law an ingredient of the crime.
The definition of Grievous bodily harm in section 4 (1) now includes:
(c) any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).
The amendment extends the definition to make it clear that causing harm to a person includes causing a person to contract a disease. As a consequence there is no need for the separate offence that was in s. 36
Section 33 'Wounding or grievous bodily harm with intent' has been written as a consequence of the omission of the concept of 'malicious' It also separates the offence relating to intention to cause grievous bodily harm from the offence relating to resisting or preventing arrest or detention. The offence relating to discharging firearms is to be transferred to the related offences in section 33A.
Section 33A 'Discharging firearm etc with intent' has also been re-written as a consequence of the omission of the concept of 'malicious'. As with s.33 the offence has been separated into components. Here distinguishing intention to cause grievous bodily harm from the offence relating to resisting or preventing arrest or detention. The revised section also covers offences transferred from section 33 dealing with related offences concerning firearms. The offences in the old section 33A that carried a lesser penalty than the virtually identical offences in section 33 have not been carried forward.
Section 34 'Feloniously wounding' has been omitted as a consequence of the transfer of the alternative verdict provision to section 33 (3).
Section 35A 'causing dog to inflict grievous bodily harm or actual bodily harm' recasts the offences as a consequence of the omission of the concept of 'malicious'. In addition, the maximum penalty for recklessness in causing a dog to inflict grievous bodily harm is increased from 7 years to 10 years (consistently with the proposed increase for the general offence of reckless infliction of grievous bodily harm).
Section 36 'Causing a grievous bodily disease' has been omitted as a result of the extension of the meaning of 'grievous bodily harm' to cover diseases and the consequent extension of the offence under section 33 of inflicting grievous bodily harm.
Sections 39, 40, 41 and 41A have been replaced with new versions which recasts the offences relating to poisoning as a consequence of the omission of the concept of 'malicious'.
The new s.39 is 'Using poison etc to endanger life or inflict grievous bodily harm' (maximum penalty: Imprisonment for 10 years).
The new s.41 is 'Administering poison etc to injure or to cause distress or pain'(Maximum penalty: Imprisonment for 5 years).
The new s.41A is 'Poisoning etc of water supply'(Maximum penalty: Imprisonment for 5 years.)
Rather than repeal Section 44, which deals with 'Not providing wife or servant apprentice or insane person with food etc', it too has been recast to take into account the omission of 'maliciously'.
A number of particular breaking offences such as 106 'Breaking and entering place of divine worship and committing serious indictable offence' have been omitted because of the omission of 'maliciously' and the consequent rewriting and extension of s. 112 'Breaking etc into any house etc and committing serious indictable offence' and s. 113 'Breaking etc into any house etc with intent to commit serious indictable offence'. The new sections extend to all dwelling houses and other buildings.
Part 4B Crimes Act - sections 249K - 249O replace the blackmail/extortion offences previously found in sections 100-103, with offences based on the Model Criminal Code and the Commonwealth Criminal Code. The new offences cover influencing the exercise of public duties and to threats of any kind. The maximum penalty for the offence is imprisonment for 10 years, or imprisonment for 14 years if a person is accused or threatened to be accused of a serious indictable offence.
At last a repeal if of little or no consequence (apart from the fact it is a genuine repeal) - s. 511 'killing pigeons' has gone. It has at last been recognised that that in many instances such killing or wounding amounts to unnecessary cruelty for which proceedings may be taken under the Prevention of Cruelty to Animals Act 1979.
Commenced on 1.01.2008.
Despite continuing and persistent criticism of standard non-parole periods more standard non-parole periods have been introduced for 11 offences, together with seven new aggravating factors under s. 21A. There is also a significant qualification on remorse being taken into account as mitigating factor. The amendments apply to offences "whenever committed" unless a conviction or plea has been entered before 1 January 2008.
The additional aggravating factors under s. 21A(2) are all available by the application of common law principles. They add nothing except another layer of complexity to the sentencing process. The chances for error are thus magnified. Since standard non-parole periods were first introduced errors in the application of the provision have been responsible for most successful Crown appeals and defence applications to the Court of Criminal Appeal. I suppose this could be seen as a good thing for lawyers but it hardly inspires confidence in the system and the judges' capacity to understand the earlier changes. It is obvious how some (many/most?) judges at first instance will cope with the new changes: believe me if the experience of the CCA over the last years is any guide - they won't!
Many of the 'new' matters of aggravation, such as the actual or threatened use of explosives, are already inherent in or elements of the offence charged. Others are rarely, if ever, ignored as aggravating features, e.g.: the commission of an offence in the presence of a child or the commission of an offence in a person's home or involving a grave risk of death. Some, such as 'the offence committed for financial gain', are just silly.
In R v McNaughten (2006) 66 NSWLR 566, the Court of Criminal Appeal sat 5 judges to resolve how a person's criminal record was to be taken into account in an attempt to reconcile the general common law and s 21A(2)(d). Parliament was not content. To the aggravating factor of having a record of previous convictions is now added the phrase "particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences". A "serious personal violence offence" is a personal violence offence as defined in s 562A of the Crimes Act 1900 and punishable by imprisonment for life or a term of 5 years or more.
How remorse may be taken into account as a mitigating factor has been qualified by an amendment to s 21A(3)(i). Remorse may now only be taken into account if the offender has provided evidence that he or she has accepted responsibility and has acknowledged any injury, loss or damage caused, or made reparation (or both). How is a court to assess and measure this? Must every offender be called to give evidence on oath? Will the rich be able to buy mitigation?
The new standard non-parole periods are also disturbing. No attempt was made to justify the new provisions. No assessment about the effectiveness or otherwise of the existing standard non-parole periods was offered. It is enough that we all as a community condemn the murder of a child for it to now carry a standard non-parole period of 25 years. Where however the usual offence may involve, as it often does, a mother with significant depression, how is a court to reconcile mercy with a requirement to impose a standard non-parole period?
Other standard non-parole periods such as: recklessly causing of grievous bodily harm in company (5 years); recklessly causing of grievous bodily harm (4 years); recklessly wounding in company (4 years); reckless wounding (3 years); fail to address problems caused by the almost infinite variety of circumstances that can lead to these offences and the circumstance of 'in company'.
Commenced on 1.1.20.08.
I am aware that some thought and effort went into these changes. The Act is said to be based on recommendations contained in the report of the Criminal Justice Sexual Offences Taskforce, Responding to sexual assault: the way forward (April 2006) and subsequent submissions to the Criminal Law Review Division of the Attorney General's Department. It doesn't show! The new s 61HA sets out the statutory definition of consent in unlawful sexual intercourse cases in ss. 61I, 61J and 61JA. A person consents to sexual intercourse 'if the person freely and voluntarily agrees to the sexual intercourse'. The terms 'free and voluntary' can be found in R v Clark, unreported, CCA, 17 April 1998 and Question of Law (No. 1 of 1993) (1993) 59 SASR 214 at [20].
The section sets out circumstances in which consent is negated. An objective fault element for the purpose of determining the accused's mens rea is also introduced.
The new changes apply to offences committed on and after 1 January 2008.
Section 61HA(7) provides, 'A person who does not offer physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.' This provision was previously contained in s 61R(2)(d).
Consent is negated s 61HA(4) if:
(a) the person does not have the capacity to consent, for example, due to age or cognitive incapacity;
(b) the person does not have the opportunity to consent because he/she is unconscious or asleep;
(c) the person consents because of threats of force or terror; or
(d) the person consents because he/she is unlawfully detained.
Factors (a), (b) and (d) are new.
In the Judicial Commission's summary of the new law it was pointed out that the common law has long recognised that a complainant who is asleep may be incapable of consenting. R v Mayers (1872) 12 Cox CC 311 The provision in (b) however makes the fact of unconsciousness or sleep determinative of lack of consent.
A person is presumed not to have consented to sexual intercourse if the person is:
(a) under a mistaken belief as to the other person's identity;
(b) under a mistaken belief that he or she is married to the other person; or
(c) under a mistaken belief that the intercourse is for medical or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means): (s 61HA(5)).
Controversially, consent can be negated, if:
(a) the person was substantially intoxicated by alcohol or any drug;
(b) the person had sexual intercourse because of intimidatory or coercive conduct or other threat (other than a threat of force, which would always negate consent); Factor (b) was not previously recognised as a circumstance vitiating consent. It was a separate offence. Section s 65A (now repealed) dealt with this situation (R v Aiken (2005) 63 NSWLR 719). or
(c) the person has sexual intercourse because of the abuse of a position of authority or trust: (s 61HA(6)).
An accused 'knows' that the person was not consenting if he or she:
(a) knows that the person does not consent;
(b) is reckless as to whether the person consents; or
(c) has no reasonable grounds for believing that the other person consents. s 61HA(3).
For the purpose of determining knowledge of lack of consent, the jury is to have regard to all the circumstances of the case, including any steps taken by the accused to ascertain whether the complainant consents, but excluding any self-induced intoxication on the part of the accused. Where the common law applied, an accused could say he believed the complainant was consenting, even if there were no reasonable grounds for such a view (DPP v Morgan [1976] AC 192).
Paragraph (c) introduces an objective element. It is a significant departure from both the pre-Act statutory position and the common law.
Critically, the new provisions do not apply to other sexual offences, such as indecent assault. As commonly an indictment contains both sexual assault and indecent assault charges, a judge will need to instruct the jury on two quite different definitions and applications of 'consent' and two different methods of proof: one objective, the other, subjective. These results from an act which was intended to improve the plight of victims and make the judge or jury's job easier!
Commenced on 1.1.2008.
Additional jurors can now be selected for criminal trials that are likely to go for more than three months. The changes were long coming. All other States have similar provisions. The prospects that the long 'terrorist' trial due to start this year could be forced to start again if one juror fell ill was quite an incentive to this sensible reform.
The new s 19 Jury Act 1977 enables up to three additional jurors to be selected. One additional peremptory challenge is given to the Crown and to each defendant: s 42.
When the jury retires only 12 members may consider the verdict. The foreperson is to be included among the 12 persons, who are otherwise selected by ballot: s 55G.
Commenced 21.12.2007.
The first orders have been made against serious sex offenders requiring them to stay in custody after their sentence is served. To date all application for orders have been granted. All but one offender was detained. One was released on a supervision order. Cornwall v Attorney General NSW [2007] NSWCA However he was so upset by the electronic bracelet he was forced to wear and so disorientated after 15 years of custody he breached his reporting conditions immediately and has been returned to custody.
Fears that challenges to the Act might succeed led to amendments to the Crimes (Serious Sex Offenders) Act 2006, before those challenges had in fact succeeded. As it was, most did not.
The primary object of the Crimes (Serious Sex Offenders) Act 2006 is now to ensure the safety and protection of the community; rehabilitation is only a secondary consideration.
The Bail Act 1978 is also amended to create a presumption against bail for persons accused of breaching supervision orders Crimes (Serious Sex Offenders) Act 2006. The amendments now allow for the State of New South Wales to apply for supervision and continuing detention orders.
Additional powers are given to the Commissioner of Corrective Services. It can be a condition of a supervision order that the offender reside at an address approved by him or her.
If the Court of Appeal remits a matter to the Supreme Court for decision after the hearing of an appeal, any order the subject of the appeal remains in force.
As at 10 February 2008, 2,408 people This is only about 20 more than this time last year. But I will be interested to see what the figures look like in a years time. were on remand in New South Wales. Studies by the Bureau of Crime Statistics See for example, What Causes Crime in 54 Crime & Justice Bulletin; Do targeted arrests reduce Crime? in 64 Crime & Justice Bulletin; Absconding on Bail in 68 Crime & Justice Bulletin The impact of the Bail Amendment (Repeat Offenders) Act 2002 in (2002) 83 Crime & Justice Bulletin indicate that most of these people will either be acquitted or receive no or little extra gaol time when their matter is finalised. Refusing bail for persistent offenders can have an impact on their crime rates and encourage rehabilitation by forcing them into drug rehabilitation programmes. But the law of diminishing returns apply. For the small number of remanded from which we as a community gain a benefit from their incarceration there are significantly more whom we gaol for no benefit and real detriment to them, their families and to the community.
Commenced 21.12.2007.
The Bail Act 1987 is amended (again). There is now a presumption against bail for an offence of breaching a supervision order under s12 of the Crimes (Serious Sex Offenders) Act 2006.
The sunset provision in relation to the presumption against bail for offences committed in the course of riots or other civil disturbances is lifted from 14.12.07.
Section 9D of the Bail Act 1978 sets out crimes where exceptional circumstances are required before granting bail. It now applies to an offence under s 66D of the Crimes Act 1900 - attempt or assault with intent to have sexual intercourse with child between 10 and 16 years).
Commenced 14.12.2007.
The Act amends the Bail Act 1987. The presumption against bail for firearms offences has been extended.
Importantly, the Court's ability to hear repeat bail applications have been seriously circumscribed. The new s. 22A Bail Act 1978 says that the court "is to refuse" to entertain a bail application if an application in relation to that bail has already been made and dealt with by a court. Exceptions are limited to cases where the person did not previously have legal representation but now has legal representation, or where new facts or circumstances have arisen which satisfy the court that a new bail application is justified.
A court can refuse frivolous or vexatious bail applications. Obligations are also imposed on a person's legal representative. A lawyer cannot make an application for bail on behalf of a client where a court has previously dealt with that person's bail application, unless the lawyer is first satisfied that the person did not previously have legal representation or new facts or circumstances have arisen which justify a new bail application. Transitional provisions The amendment to s 8B extends to a grant of bail to a person for an offence committed before 14.12.2007, but only if the person is charged on or after 14.12.2007: s 36. The amendments relating to the court's power to refuse to hear bail applications extends to cases where an accused person's previous bail applications have been dealt with by the court before 14.12.2007: s 37.
The changes were said Attorney-General Mr Hatzistergos, Legislative Assembly Second reading Speech, 17/10/207 by the Attorney-General to be balanced. They are not. The Attorney justified the changes by reference to cost and the problem of unnecessary and repeated applications by well funded litigants. He spoke of the anguish to victims of repeated applications and the danger of Magistrate shopping. He assured parliament that unrepresented applicants would get a second go if they subsequently got a lawyer. What he didn't say was that the changes ignored the practical reality of life in a Magistrate's Court and the impact of an ill prepared application.
A simple scenario familiar to most practitioners: A young person is arrested on the weekend. The client fronts the bail Magistrate Section 22A does not apply if the initial bail was refused by an authorised justice ( s.22A(6))., hungover and in a sorry state. They are represented by a duty solicitor who sees them for a few minutes and makes a heartfelt but under prepared and resourced application. It is refused. The following Monday the client is now represented by someone who has not had to deal with 20 applications in an hour, wants to make a fresh submission. There are no new facts so the Magistrate cannot allow the application. In fact applying the legislation, the Solicitor should not have made it.
Consequence: The Children's Detention Centres are now full. Long term older detainees who have been kept in juvenile detention because of their special rehabilitation needs are being transferred to adult gaols. This is despite orders made by eh sentencing court pursuant to s. 19 Children (Criminal Proceedings) Act 1987. The power to do this can be found in s 28 Children (Detention Centres) Act 1987 and ss. 23 and 41C Crimes (Administration of Sentences) Act 1999. The reason: not enough beds in the detention centre!
A number of changes to the Law Enforcement (Powers and Responsibilities) Act 2002 were made in 2007.
Commenced 21.12.2007.
The lifting of sunset provisions in other Acts all commenced on 14 December 2007.
The Law Enforcement (Powers and Responsibilities) Act 2002 is amended to lift the sunset provision which previously applied in relation to Part 6A. These were the so called emergency powers introduced in the wake of the Cronulla riots. As expected, once introduced, these powers were used in situations that were not emergencies. As expected they have been made permanent powers. The government took comfort from the Ombudsman's findings that the police use of their powers had been 'responsible' and 'measured'. Senior police called on to authorise the powers had on occasions refused requests. At the same time however the government rejected the Ombudsman's major recommendation that extra protections including a right to public assembly be given legislative basis. Attorney-General Mr Hatzitergos, Legislative Assembly, Second Reading speech, 21/11/2007.
The community can take some solace from the fact that before they are exercised, the Commissioner of Police or Deputy or Assistant Commissioner must be satisfied that the nature and extent of the powers are appropriate to the public disorder to which the authorisation is directed;
However, the power of police to seize items for the purpose of preventing or controlling a public disorder which was previously limited to vehicles, mobile phones and other communication devices has been extended.
So too is operation of authorisations for actions outside target areas. Where a police officer suspects on reasonable grounds that occupants of a vehicle have participated or intend to participate in a public disturbance, they can act.
More generally the Act now permits a police officer to direct persons in a group of three or more intoxicated persons to leave a public place for up to six hours.
Although the Terrorism (Police Powers) Act 2002 has never been used the amending Act introduces more powers which extend the power to stop and search vehicles and to allow the entry of vehicles and their covert search.
Police officers do not need not arrange an interpreter for a person detained under a preventative detention order, if arranging an interpreter is "not reasonably practicable".
If a child is 'inadvertently' detained under a preventative detention order, the child is to be released into the care of a parent or other appropriate person;
Commenced on 17.12.07.
A new s. 23A makes it clear that when a person is under arrest they can be required to open their mouth or shake their hair to enable inspection for concealed drugs and other items.
Changes are made to s. 67 to remove the requirement that the name of the authorised officer who issues a search warrant be included in the occupier's notice.
Crime scene warrants in connection to terrorism offences can be extended for a maximum period of up to 720 hours (or 30 days): ss. 73A(7) and (8). Reasonable grounds are required for extending the warrant beyond the current maximum period of 144 hours (six days).
Scene of crime officers can exercise crime scene powers in relation to vehicles in public places that are reported as being stolen, without the necessity of a police officer being present: s 95A. Section 3 is amended to include a definition of scene of crime officer (a member of the NSW Police Force responsible for examining or maintaining crime scenes)
Police can now use tyre deflation devices i.e. road spikes, not just in a continuing police pursuit but also to prevent the use of a vehicle by a person to escape lawful custody or avoid arrest: s 187(1).
Scheduled to commence on 25 March 2008.
A revised s 11 Crimes (Forensic Procedures) Act 2000 will allow a police officer to request a suspect to undergo a non-intimate forensic procedure involving the taking of a sample of a suspect's hair or the carrying out of a self-administered buccal swab in connection with the investigation of any offence (rather than just indictable offences and other prescribed offences).
New sections 23 and 24 make similar changes to the provisions of the Crimes (Forensic Procedures) Act 2000 that allow a police officer or Magistrate to order a suspect to undergo a forensic procedure. The amendments will allow a non-intimate forensic procedure involving the taking of a sample of a suspect's hair or the carrying out of a self-administered buccal swab to be ordered by a police officer or Magistrate in connection with the investigation of any offence (rather than just indictable offences and other prescribed offences).
These amendments also clarify that a police officer or Magistrate may order a forensic procedure only if there are reasonable grounds to believe that a suspect has committed an offence, and the sample is taken for the purpose of proving or disproving that the suspect has committed that offence. The provisions do not permit forensic procedures to be used to investigate whether the suspect has committed an offence if there are no reasonable grounds to believe that the suspect has committed that offence.
The new s 88(2)(c) is designed to ensure that if forensic material is taken in relation to an offence but proceedings are taken in relation to another offence arising out of the same act or omission by the suspect, the provisions of the Crimes (Forensic Procedures) Act 2000 relating to destruction of the forensic material do not apply.
Commenced 15.11.2007.
Amendments to Crown appeals (s14A) in Criminal Appeal Act 1912; Sch 4[2]-[6] are not yet in force.
Section 6 of the Criminal Procedure Act is amended to affirm the general principle that offences with maximum penalties of two years or less should be dealt with summarily unless the offence is permitted to be dealt with on indictment under another Act or is listed in Table 1 Offences listed in Schedule 1 may be dealt with on indictment if the prosecutor or the accused makes such an election, regardless of the maximum penalty. Or Table 2 Schedule 1.
All offences listed in Schedule 1 to the Act are indictable offences, subject to the provisions of the Act that require them to be dealt with summarily in certain circumstances: s 259.
Recklessness: Section 41 is inserted into the Crimes Act to put beyond any doubt that 'recklessness' when it is an element of an offence, may also be established by proof of intention or knowledge. This is in line with the Criminal Code Act 1995 (C'th). The change applies to offences committed before the commencement of the amendment.
Accessories: Amendments to 345 (principals in the second degree), s 346 (accessories before the fact) and s 351B (aiders and abettors), are intended to ensure that an accessory should be sentenced on the same basis as the principal offender would have been sentenced rather than on the basis of the circumstances of the accessory. As set out in the explanatory note to the Act.
I have no idea how this will apply in practice or why it was thought necessary.
Commenced 7.12.2007.
Pre-trial disclosure: When a court is considering whether to require pre-trial disclosure (pursuant to Part 3 of Chapter 3 of the Criminal Procedure Act 1986) it is sufficient if the court finds that pre-trial disclosure is warranted on the basis of at least one of the criteria under s 136.
Withdrawal of matter: If a matter is dismissed because of its withdrawal by the prosecution, this does not prevent a later proceeding against that person in the same matter: ss. 295 and 208 of the Criminal Procedure Act.
Crown Appeals: The CCA's powers in a Crown appeal when imposing a sentence of full-time imprisonment on a respondent who is absent and not in custody are clarified: s.14A Criminal Appeal Act 1912.
Commenced 14.11.2007.
The Criminal Procedure Act 1986 is amended in relation to the service of briefs by prosecutors where a person is charged with an indictable offence triable summarily listed in Table 1 of Schedule 1.
Section 183 requires the service of briefs of evidence in proceedings for offences that are dealt with summarily, but only where the defendant has pleaded not guilty. Similarly, s. 75 will still require the service of briefs of evidence in all proceedings for offences that are to be tried on indictment. Previously, s 265 Criminal Procedure Act required that a person charged with an indictable offence listed in Table 1 had to be served with a copy of the brief of evidence and a copy of their criminal record before the time fixed by the Local Court for the making of an election to have the offence tried summarily or on indictment. The 'reforms' amend s. 265. There is now no requirement that a brief of evidence in proceedings for an indictable offence listed in Table 1 be served prior to the time fixed for making an election. The amendments do not apply to proceedings commenced prior to the commencement of the Act: Schedule 1[4].
The Act also amends the Criminal Procedure Regulation to expand (on a 12 month trial basis) the prescribed list of proceedings for which a brief of evidence does not need to be served: cl 24.
Commenced on 16.11.07.
The Mental Health Act 1990 is repealed and replaced. Changes were made to rules relating to review of voluntary patients; care and treatment and involuntary admission, detention and treatment. The Act now includes a statement of rights of detained persons, principles of care and the objectives of the NSW public health system.
The forensic patient provisions of the Mental Health Act 1990 are now set out in the Mental Health (Criminal Procedure) Act 1990. There is a revised definition of 'forensic patient'.
Other changes mean that there are no separate orders for community counselling. Such community counselling is integrated into Community Treatment Orders. Those orders now have a maximum term of 12 months (up from 6 months). There is a right of appeal from a Community Treatment Order if term is greater than six months or if no term is specified.
Amendments were also made to s 32 Mental Health (Criminal Procedure) Act 1990 in relation to making it compatible with the new Mental Health Act.
Commenced on 12.10.2007.
The amendments to the Criminal Procedure Act 1986 do not extend to any proceedings commenced before the commencement of the Act. Any proceedings to which the Evidence (Children) Act 1997 applied that were "pending" immediately prior to the repeal of that Act are to continue as if the Act had not been repealed: Schedule 2.
The Evidence (Children) Act 1997 and the Evidence (Children) Regulation 2004 are repealed but are substantially re-enacted as ss. 306 M- 306ZP in Part 6 Chapter 6 Criminal Procedure Act 1986. Evidence can be given by a recorded interview with an investigating official, orally in the courtroom, or by alternative arrangements: ss. 306 S and 306W.
"Vulnerable persons" are children and intellectually impaired persons: s 306M(1). Part 6 applies to a child who is under 16 years of age at the time the evidence is given: s 306P(1).
Section 306 M(2) defines "intellectually impaired". Where evidence is given by an intellectually impaired person the Part applies "only if the court is satisfied that the facts of the case may be better ascertained" if the person's evidence is given in the manner provided by the Part: s 306P(2).
Committals: If the person is intellectually impaired a direction may not be given by a Magistrate requiring the attendance of a complainant at a committal hearing for a prescribed sexual offence: s 91. The amendment mirrors the protections already in place under s 91 for child complainants.
Similarly, the entitlements for complainants giving evidence in proceedings for a prescribed sexual offence applies to vulnerable persons: ss291A-291B, 294A-294C.
Recorded statements: A recorded statement may now be admitted into evidence "no matter what age the person is when the evidence is given": s 306U. Previously, s 11 of the Evidence (Children) Act 1997 allowed a recorded statement of a child to be admitted as evidence-in-chief where the child is over 16 years but less than 18 years of age if the recording of the previous representation was made when the child was less than 16 years.
A recorded statement may now be admitted into evidence, despite a failure to comply with notice requirements in the regulations, where the parties consent or if the accused has been given a reasonable opportunity to access the recording and it would be in the interests of justice to admit the recording: s 306V. This requirement is much less strict than the old s 12 of the Evidence (Children) Act
ID evidence: Section 306 ZE is intended to overcome problems with s 21 of the Evidence (Children) Act, which prohibited children giving identification evidence by CCTV and required the child to be brought to court. The new section retains the prohibition only where identification is a fact in issue in the proceedings.
Commenced on 4.7.2007.
Section 11 of the Children (Criminal Proceedings) Act 1987 prohibits the publication or broadcasting of the names of children (and adults who were children at the relevant time) in connection with certain criminal proceedings, including child victims and child witnesses.
After the amendments, certain family members of a deceased child connected with criminal proceedings can consent to the publication or broadcast of the child's name. The giving of consent is subject to a number of conditions: s 11(4G).
The prohibition in s 11 does not apply to the publication or broadcast of names that have previously been lawfully published or broadcast: Schedule 2, Part 13, cl 18.
Commenced 4.7.2007.
Section 27DA of the Summary Offences Act 1988 prohibits the use of mobile phone, SIM card or charger in place of detention. It has been amended to make it easier to attach liability for the use of such a phone. Previously, only possession was prohibited but when a phone was found secreted in common areas this was almost impossible to prove.
By extending s 27DA to prohibit the use of a mobile phone, it may be sufficient to prove that an inmate has contacted a person outside the correctional centre by mobile phone, without necessarily finding equipment in the inmate's possession.
The Act also consequently amends the power to withdraw privileges from an inmate who uses a mobile phone: s 56A of the Crimes (Administration of Sentences) Act 1999.
Commenced on 28.6.07.
The Child Protection (Offenders Registration) Act 2000 is amended in an attempt to ensure that an offender whose sentence is suspended without supervision is still subject to registration and reporting requirements.
This development was prompted by the case of Khanna v Commissioner of Police [207] NSWSC 17, in which Brereton J found that the applicant was not a registrable person because his suspended sentence "did not include a term of imprisonment", nor did it include a "requirement that he be under supervision": at [38].
Commenced from 23.2.07.
Part 7A substantially commenced on 15.03.07. All remaining provisions commenced on 1.7.2007.
A new Part 7A is introduced into the Crimes (Forensic Procedure) Act 2000. The provisions of Part 7A parallel those of Part 7 of the Act which authorises the conduct of forensic procedures on a person serving a sentence of imprisonment for a serious indictable offence. Part 7A authorises the conduct of forensic procedures on untested former serious indictable offenders where they are subsequently charged with the commission of an indictable offence.
There are also provisions addressing the exchange of DNA database information between States and Territories and to authorise police to conduct intimate and non-intimate forensic procedures, including obtaining buccal, hair and blood samples, on untested former offenders. The aim is to ensure that the person's DNA profile is contained on the NSW DNA database:
The section catches those offenders who were released from prison prior to the commencement of the Crimes (Forensic Procedure) Act 2000 on 1 January 2001.
Part 7A applies to any person who, after the commencement of that Part, is served with a court attendance notice referred to in s 75A(3)(b) and so applies regardless of when the person served the sentence of imprisonment referred to in s 75A(3)(a).
A new section 24 and amendments to sections 26 and 32 provide further guidance to Magistrates as to what they should have regard to when determining whether or not to make an order for the carrying out of a forensic procedure.
Commenced on 12.03.2007.
Part 15A (Apprehended Violence) of the Crimes Act has been repealed and a revised and re-numbered Part 15A enacted. The new Part 15A introduces a new statutory scheme for obtaining apprehended violence orders (AVO's): a revised test for power to order AVO's (s 562G). Changes are made to telephone interim orders (ss. 562O-562Z). There are new provisions to protect witnesses in AVO proceedings ss. 562ZH-562ZI).
Not yet commenced.
The Evidence (Audio and Audio Visual Links) Amendment Act 2000 is amended. The existing presumption that an accused person is to appear physically in court in committal sentence and appeal hearings has been reversed. A person in custody (whether an adult or a child) will appear via video link (where the facilities are available unless a court orders the prisoners appearance - in the interests of justice. The change was put forward as a perfectly viable and pragmatic alternative to the physical appearance of an accused. Second reading speech of the Attorney General It is not.
It is a pragmatic alternative to paying the cost of transport from gaol to court. However, a person's presence at such an important event is critical. If only so they in person can give confidential instructions during the hearing and so the court can get a realistic and real appreciation of them as a person instead of a disembodied telecast. It will also waste court time on applications. The extension of the proposed scheme that took it from a beneficial and sensible proposal to one with significant implications for the rights of prisoners is not a good idea.
So how to summarise the new criminal laws passed by the NSW Parliament in 2007? On the disaster scale: big points for the stuff up with the consent laws; the pernicious impact of the video link changes and the “reforms” to bail - which are already having a significant effect on the numbers of people (particularly children) on remand.
We got a lot of laws we didn’t really need and many more problems for the courts and the legal profession to solve (and be blamed for if solutions cannot be found). So I’d score the year: one out of ten for effort, four out of ten for distraction value and 7.5 for disasters.
There was however some useful work done tidying up the Crimes Act: so in 2007, for the first time in many years, a minus score for genuine and progressive law reform is avoided. In fact I can give a positive score here - two points for repealing the offence of “killing pigeons” in s. 511 Crimes Act.
Maybe some may think I’m a little harsh. Go back and read what I’ve set out again and you’ll realise I’ve been very, very generous!
Let’s see what this year brings.
Here’s one last positive thing to leave you with. The NSW prison population did not get above 10,000 at any time in 2007. We now have something to aim for in 2008!
Andrew Haesler
22 February 2008
20 Sep 2024