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By Andrew Haesler S.C.
Public Defender
What I propose to do in this paper is to discuss briefly, recent consideration by the courts of legislation introduced in 2003, before going on to outline the new legislation which came into force in 2004 and discuss it implications. I then speculate on what we can expect in the coming months.
As is my wont I add the occasional commentary to some of the 'reforms'. Once in another life I proposed that there be a parliamentary rule that every time a new criminal law is introduced there should be a reciprocal repeal of a law we don't need or use. I got nowhere with that suggestion, but I still think it is a good idea!
The revised list of aggravating and mitigating factors in s 21A has been considered by the Court of Criminal Appeal in a number of cases, including R v Cramp [2004] NSWCCA 264, R v Way [2004] NSWCCA 131, R v Berg [2004] NSWCCA 300 and R v Wickham [2004] NSWCCA 193.
A number of principles can be extracted from these decisions:
For a detailed review of the present state of the law relating to suspended sentences see my paper 'Suspended Sentences'(2005).
The 2003 amendments, which followed the introduction of standard non-parole periods, also brought changes to s12, which allows for suspended sentences. As it originally appeared in 1999 s12 required a court to set only the total term of the sentence and leave the fixing of a non-parole period until breach. With the introduction of standard non-parole periods in 2003 came a reversion to the requirement that the non-parole period be set out first (bottom up sentencing). This, it was said, required a change to s.12. Section 12(3) now says that Part 4 of the Crimes (Sentencing Procedure) Act does not apply, ' except to the extent to which it deals with setting the non-parole period and the balance of the term of the sentence'.
The Court of Criminal Appeal considered s 12 a number of times last year. The following principles can be extracted from their decisions although the section still continues to vex them:
The Standard Non-Parole Period regime was considered by the Court of Criminal Appeal in the Guideline judgment R v Way [2004] NSWCCA 131. Special Leave to appeal to the High Court was refused on 11 March 2005.
The relevant principles were succinctly summarised in R v Pellew [2004] NSWCCA 434 by Simpson J at [13]. Adams J in dissent, was, as always, interesting and thought provoking.
The statutory limitation on the cross-examination of complainants by an unrepresented accused in sexual assault trials was confirmed by the Court of Criminal Appeal in R v MSK & MAK [2004] NSWCCA 308. Special Leave to appeal to the High Court was refused on 4 February 2005.
Section 39 deals with the disposition of accused who have been found not guilty at trial on the basis of their mental illness. Previously, anyone found not guilty on this basis had to be ' detained' until further order of the Mental Health Review Tribunal and confirmation of the order by the Minister of Health. This requirement applied even if the accused had previously been on bail prior to trial. Detention involved either gaol or secure accommodation in a mental hospital. It was not possible to detain such people at home or on bail type conditions ( R v Stephens [1999] NSWSC 811).
The new s 39 allows either for detention in gaol or mental hospital or orders releasing a person from custody conditionally or otherwise, pending assessment by the Mental Health Review Tribunal. Recently in R v Xu [2005] NSWSC 70, Kirby J allowed conditional release of a mother found not guilty by reason of mental illness of killing her child. The evidence established that Ms Xu had made sufficient recovery to be conditionally released into the community prior to reassessment by the Mental Health Review Tribunal.
The Act amends the Jury Act 1977 to penalise jurors in criminal trials who make certain inquiries about an accused outside of court (s 68C). It also prevents disclosure of criminal trial information by jurors and others (s 68B) and allows sheriff to investigate suspected improper conduct by jurors (s 73A) and a court to examine jurors on oath about possible contraventions of s 68C (s 55DA).
Glanville Williams once commented on the significance of 'reforms - that flow from sex cases that have attracted the prurient interest of the press and general public. ' These are notoriously the occasions on which the law tends to be bent to give expression to feelings of moral outrage' Glanville Williams Criminal Law 3rd Edition p.182 When Bilal Skaf's conviction was set aside by the Court of Criminal Appeal R v Skaf [2004] NSWCCA the court called for change to penalise recalcitrant jurors. The court got their request. No real consideration was given to how effective the penalty provisions might be. We have simply no idea whether the deterrent effect of penalties will prevent independent research or merely make it harder to discover when it has occurred.
Do we really need to punish members of the public who take their role as jurors too seriously? There is a need to discourage independent research outside the evidence at trial, however the fact that one high profile trial had to be re-heard was hardly sufficient justification for new criminal sanctions against jurors.
This is another example of legislation drafted on the hop in response to a "media" outrage. It came after a young person was caught on a security video in a 'sex act' with his girlfriend, a visitor to his juvenile detention centre. The incident which no other visitor saw involved the girlfriend putting her hands down the boy's pants while they were having a kiss and a cuddle. Yes, he was a convicted sex offender and yes, it shouldn't have happened - he received a minor administrative punishment. However once the tape was leaked it became "necessary" to change the law. The housing detention and administration of young offenders at the Kariong Detention Centre changed overnight, and not for the better.
The Act amends the Children (Criminal Proceedings) Act 1987, Children (Detention Centres) Act1987 and the Crimes (Administration of Sentences) Act 1999. It allows for the creation of Juvenile Correctional Centres to house inmates under 21 years old. It allows for the transfer of juvenile offenders between detention centres, juvenile correctional centres and correctional centres. For those under 16 this requires Ministerial consent and a decision of a Review Council appointed by the Minister. For those over 18, transfer is at the almost unfettered discretion of the Commissioner for Corrective Services (s 41C Crimes (Administration of Sentences) Act 1999).
Section 19 Children (Criminal Proceedings) Act 1987, which allowed courts to direct that those who commit offences as children can serve their sentences in juvenile institutions until aged 21 has also been amended. The Court now directs such person be "juvenile offenders". Juvenile offenders now serve imprisonment not in " detention centre" but a ' juvenile correction centre'. This can lead to administrative transfer to an adult gaol.
The amendments followed no major review or recommendation. They come at a time when, contrary to what is occurring in adult gaols, the number of juveniles in custody is dropping. The need to be perceived to be tough again triumphed over good policy. An Upper House committee is reviewing the amendments. From the terms of reference and speeches about the Bill I suspect this may simply provide an opportunity for grandstanding not an assessment of whether we needed these 'reforms'.
The Act doubles the maximum penalty for using a child for pornographic purposes (s.91G). It makes the production, dissemination and possession of child pornography an indictable offence (s.91H transferred from ss.578B and 578C) and increases the maximum penalty to 19 years. It extends the definition of child pornography to cases of sexual activity or activity in a sexual context (I am not sure what this means or how it will be interpreted), torture, cruelty or physical abuse (whether or not in a sexual context).
It attempts to resolve some of the potential problems with the old s 578B Crimes Act 1900. The definition of child porn does not rely, as did the earlier section, on a requirement that the material be or be able to be classified Restricted Classification (RC). However a classification other than 'RC' is a defence.
The Act provides for the voluntary transfer of a community service order, home detention order, periodic detention order or a good behaviour bond to the supervisions and administration of another State or Territory. A failure to comply with provision means offenders will be re-sentenced in the new jurisdiction and according to that State or Territory's laws. Any appeal against the original sentence or conviction stays in the original jurisdiction. Similar sentences from participating jurisdictions may be registered for supervision and administration in NSW under reciprocal arrangements.
Miscellaneous changes were made to the Crimes Act 1900 and Criminal Procedure Act 1986 amending and refining offences dealing with terrorism type conduct. Particular changes relate to administering and use of poisons (ss 39 and 41 Crimes Act 1900) and the use and possession of explosives (ss 48, 55, 93FA (new) and 200).
In addition, changes were made to the Terrorism (Police Powers) Act 2002 and the State Emergency and Rescue Management Act 1989 arising from a review of powers relating to terrorism. The Commissioner or Deputy Commissioners special powers now come into operation when they believe there is a reasonable possibility of a terrorist act occurring in the near future (as opposed to the previous 'imminent threat'(s 5).
Amends the Crimes Act 1900 to revise child neglect offences. In particular the s 43 offence of unlawful abandonment of child is changed to 'intentional abandonment'. It introduces a new s 43A to create the offence of unexcused, reckless or intentional failure to provide for child. Section 43A carries a maximum penalty of 5 years imprisonment.
A number of offences were introduced to The Criminal Code. New telecommunication offences include crimes relating to Internet and child pornography; re-birthing of stolen mobile phones; improper use of emergency phone services; harassing and threatening communication and communications promoting or procuring suicide.
There are also new financial offences relate to credit card skimming, internet banking fraud and obtaining financial information by deception. A new contamination of goods offences was also added.
In addition, the principle offence governing unlawful importation of drugs- s.233B Customs Act 1901 was reworded to make it clear that the prosecution do not have to prove the accused had an intention to import a prohibited drug. It is now enough that the person imported the goods and they were a prohibited import. As no fault elements are specified the default provisions of the Criminal Code apply (s 5.6) and it will be sufficient if the prosecution proves the accused was reckless as the nature of the goods imported. See I Leader Elliot, Cases & Comment (2005) Crim Law J. 55 The amendment cures the problem for the prosecution raised by the decision of the Court of Criminal Appeal in Narongchai Saengsai-Or (2004) 147 A Crim R 172. There, the old version of s.233B was held to require that the prosecution prove the accused knew the nature of the goods (i.e. drugs) being imported.
The amendment to the Crimes (Sentencing Procedure) Act 1999 expands the category of offences in respect of which a Local Court may receive and consider victim impact statements to include some Table 1 offences Table 1 of Schedule 1 to the Criminal Procedure Act 1986. They are indictable offences, which are dealt with summarily unless prosecutor or accused elects otherwise and which result in actual physical bodily harm to any person, or involve an act of actual or threatened violence or an act of sexual assault.
The Act amends s.58 Crimes (Sentencing Procedure) Act1999 and increases the maximum consecutive sentences which can be imposed by the Local Court from 3 to 5 years. The restriction on the number of sentences, which can be accumulated, has also been removed. The amendment considerably increases the overall sentences Magistrates can impose. It must have an impact on gaol numbers and the number of appeals to the District Court.
It also amended the Criminal Appeal Act1912 relating to appeals against dismissal of costs applications. A new s 5F(3A) allows the Attorney General or Director of Public Prosecutions to appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case. To date there have been six s 5F (3A) appeals to the Court of Criminal Appeal. Five have been successful with the matters being remitted to District Court for the trial to continue, with the previously excluded evidence back before the jury.
An amendment to s10 allows the Court to dispense with the notice of intention to appeal. The time limit for lodging a Notice of Severity Appeal to the Court of Criminal Appeal is 28 days.
The Act amends the Crimes (Administration of Sentences) Act 1999. The penalty for possession of a mobile phone by a correctional centre inmate was increased significantly to up to 6 months loss of privileges (s 56A). The Summary Offences Act 1988 was also amended, to make possession of a phone by an inmate an offence carrying 2 years gaol (s 27DA).
The types of samples that may be taken for the purpose of testing for the presence of prohibited drugs were re-defined. Urine and hair samples may now be taken. The Act brings in new rules for the conduct of correctional centre disciplinary proceedings. The powers of the Governor to impose loss of privileges, as a disciplinary punishment, were considerably increased from 28 to 56 days and up to 7 days confinement to a cell. A Visiting Justice can impose even greater punishments including increasing a sentence by up to six months.
The amendments also allows for the revocation of periodic detention orders after only one unexplained absence, where a prisoner already has had revocation and reinstatement of a periodic detention order and for the extension of sentences by the Parole Board (s 163).
The Criminal Appeal Act1912 is amended to correct an anomaly noted in Hall [2004] NSW CCA 127. There the court held that a sentence continued to run even though a prisoner had been admitted to bail pending his appeal to the CCA. The CCA is now empowered to make any order it thinks fit and specify the date of the commencement or re-commencement of the sentence. Time on bail does not count.
The Criminal Procedure Act was amended by adding a new s294B, which allows and creates a presumption that complainants of sexual assault can give evidence using alternative arrangements. A complainant who gives evidence is entitled to give it from a place other than the courtroom by means of closed-circuit television facilities or other technology. A court, on its own initiative or on application by a party to the proceeding, may order that such means not be used but only if it is satisfied that there are special reasons, in the interests of justice, for the complainant's evidence not to be given by such means.
The Bail Act 1978 was amended to create a presumption against the granting of bail for certain firearms and weapons offences (s 8 B) and repeat property offences
(s 8C). There are now provisions for automatic forfeiture of sureties. The provision whereby no penalty for failure to appear is allowed if a matter is dealt with ex-parte was deleted.
The Act also amends the Criminal Procedure Act 1986, inserting a new s317A which requires a court that issues a warrant for the arrest of a person to be brought before the court for sentencing to deal with the proceedings as expeditiously as possible after the person is arrested and brought before the court.
The Bail Act 1978 now has a presumption against bail for the terrorism offences in Division 101, 102 or 103 of the Commonwealth Criminal Code (s 8A (1)(b).
This new law amends various Acts. It introduces a new summary offence of secretly filming a person for sexual gratification (s21G & 21H Summary Offences Act1988) [Don't get me started on the prohibitions of photos of kids].
It prohibits publication of names of child witnesses, child victims (including deceased victims), child defendants and child siblings of victims (s11 Children (Criminal Proceedings) Act 1987).
It allows for a costs application by accused persons in special hearing (s 2 Costs in Criminal Cases Act 1967) and amends s 52A of the Crimes Act 1900 to extend the definition of " impact" to include circumstances where a person is thrown from a vehicle, and amends the s. 80A offence of forced sexual manipulation to include an aggravated form.
The power given to the Court of Criminal Appeal in s 7 Criminal Appeal Act 1912 to deal with an appellant found not guilty by reason of mental illness is amended to correspond with the powers now given a trial judge by s 39 Mental Health (Criminal Proceedings) Act 1990.
Amendments to ss 81 and 101 Mental Health Act 1900 clarify that a person who has been released conditionally under s 39 Mental Health (Criminal Proceedings) Act 1990 is still subject to the Mental Health Review Tribunal. The Tribunal has the same powers over such a person as it would have had they been detained as forensic patient under s 39.
The Act contains minor amendments to a large number of Acts dealing with courts, and court procedures and proceedings.
This is an interesting one, as Act amends the Law Enforcement (Powers and Responsibilities) Act 2002 which has not yet commenced. The amendment adds a Part 8A to the Act and allows police to use in-car videos to record them stopping and detaining motorists. The tape is to be turned off and not used after arrest. Part 8A is, to date, the only bit of the Law Enforcement (Powers and Responsibilities) Act 2002 which has commenced and is operational.
The Law Enforcement (Powers and Responsibilities) Act 2002 is itself due to commence by the end of 2005. A summary of the Act can be found in my paper 'Police Powers' available on the Public Defenders Office website.
Briefly, the Law Enforcement (Powers and Responsibilities) Act 2002 attempts to codify the powers of police to stop, search and seize individuals and evidence. The noble aim of consolidating police powers in one handy legislative package has led to some significant increases in police powers particularly over crime scenes. Despite the police demanding the 'reforms', the Act has languished for over two years. The latest date for commencement is 'before 2006'.
England and Wales have seen a significant number of 'reforms' designed to redress the supposed imbalance of fairness between the State and victims of crime and an accused. Often controversial the Blair government has a number of further amendments stalled in the House of Lords. As far as I know there are no plans to introduce these 'reform' here but caution needs to be exercised. At present laws in the UK require a suspect to answer questions or lose the presumption of innocence.
At a recent conference about the proposed Criminal Justice Act 2003 (UK) Dr David Thomas described the proposed Act as '...the most incompetent piece of legislation passed ... since the late 18th Century." Part of the procedure section will require the defence to, -in effect, - fully prepare their case before the first directions hearing (14 days). The defendant is to declare which witnesses s/he will call, their places of abode etc... They must declare all experts the solicitors have spoken to (not just instructed) about the defendant's case. There is no privilege in this respect. In the evidence part of the Act, the rule against hearsay is abolished! I wish I could say it will never happen here.
Concerns have been expressed that victims of child sexual assault are not given a fair go by the criminal justice system. Complaints have attracted the prurient interest of the press and the commentators and there is a real risk popular pressure and data free research will lead to significant changes. Has the system been destroyed by ' misplaced altruism'? Are the Courts of Appeal setting aside jury verdicts on a whim or because of ' minor matters which would not have affected the jury verdict'? Has the ' pendulum swung too far in protecting the rights of the accused'. The Ninian Stephen Lecture to Newcastle Law School by M Cuneen - 10.3.2005. The premier seems to think so. The Premier Bob Carr commenting on Ms Cuneen's Lecture reported in the SMH 12.3.2005. Some put forward the view that as there are 8 - 9,000 complaints of sexual assault each year in NSW and only a few over a thousand convictions shouldn't the system be reformed to ensure there are more convictions The concern is with the courts and the legal system however most of these matters do not get to court! Of the thousand or so offenders that do come before the courts each year 45% plead guilty or convicted after trial. Is there really a need to ditch all protections for an accused to raise the conviction rate?
A high-powered Committee is presently looking into all aspects of the trial of sexual offences. If all important questions are being considered then the following may be asked: Do we adopt an inquisitorial system? Do we restrict cross-examination? How is evidence to be presented and explained by the court? Do we need to change or remove directions such as Crofts (1996) 186 CLR 427 (delay), Longman (1989) 168 CLR 79 (great delay), and Murray (1987) 11 NSWLR 12 (treat unsupported allegations with caution), generally given in sexual assault trials. Wood CJ CL R v BWT (2002) 129 A Crim R 153 considered such a review ' timely'.
I believe one last attempt will be made to restore some rationality to the section 12 Crimes (Sentencing Procedure)Act 1999 and remove the obscure provisions that so irritated the court in R v Tolley. It can only be an improvement particularly if it removes the requirement to fix a non-parole period prior to breach and gives the court more flexibility on breach.
The Australian Law Reform Commission Issues Paper No. 29 Sentencing of Federal Offenders raises an number of important issues in relation to Part 1B of the Crimes Act 1914 (Commonwealth). A comprehensive review of each aspect of Federal sentencing involving not only the structure of the Act but basic philosophical issues is contemplated.
The Australian Law Reform Commission Issues Paper No. 28 Review of the Evidence Act 1995 comprehensively raises most of the conundrums and dilemmas raises by the Act since its introduction.
The NSW Sentencing Council has a broad legislative mandate from s 100J Crimes (Sentencing Procedure) Act 1999 to advise and report on most issues of sentencing. A report recommending against abolition of sentences of 6 months or less was released recently. The report is available on the Public Defenders Office website. Further reports are being considered in relation to the sentencing jurisdiction of Magistrates, suspended sentences and firearms offences.
The current list of property offences in the Crimes Act 1900 are overly complex, confusing and often archaic. There are simply too many offences, for example, there are 41 fraud offences. The Police and DPP probably need 8 or so and rarely only use more than 2 - s 170 (false pretences) and s 178BA (obtain benefit by deception).
We are also are stuck with some amusing examples that are rarely if ever used. Some of the more interesting, archaic and silly laws in NSW went when in 2000 Jeff Shaw QC, as Attorney General, sponsored the repeal of the Police Offences Act 1901. We lost 's 66" Whosoever damages any public cock (fountain pump or waterpipe)... shall be liable to a penalty not exceeding $40" and s 70 " Whosoever in any street or public place beats or dusts any carpet or flies any kite... shall be liable to a penalty not exceeding $4".
The present Attorney still has a way to go to match his illustrious predecessor in repealing silly laws. The Crimes Act 1900 still contains such gems as:
Sensible proposals to bring the law of theft into the 2Oth century have unfortunately stalled. See the Article, Fixing the Crimes Act by Richard Button, Andrew Haesler and Chrissa Loukas in Bar News 2003 page 27. In the present law and order climate they are simply not sexy enough to do anything about.
Andrew Haesler SC
March 2005
15 Nov 2024