Justice Legislation Amendment (Sex Offences Procedure) Act 2008

Justice Legislation Amendment (Sex Offences Procedure) Act 2008

No. 18 of 2008

table of provisions

SectionPage

Part 1—Preliminary

1Purpose

2Commencement

Part 2—Amendment of Crimes Act 1958

3Time limit on certain prosecutions

4New section 612 inserted

612Transitional provision—Justice Legislation Amendment (Sex Offences Procedure) Act 2008

5Schedule 8 amended—Forensic sample offences

Part 3—Amendment of Crimes (Criminal Trials) Act1999

6Presentment to be filed

7Directions hearing

8New section 35 inserted

35Transitional provision—Justice Legislation Amendment (Sex Offences Procedure) Act 2008

Part 4—Amendment of Evidence Act 1958

9Use of recorded evidence-in-chief in certain proceedings

10Evidence of previous representations made by child
complainants

11Alternative arrangements for giving evidence in certain proceedings by child complainants or complainants with a cognitive impairment

12Pre-recording evidence at special hearing

13New section 160 inserted

160Transitional provision—Justice Legislation Amendment (Sex Offences Procedure) Act 2008

PArt 5—Amendment of Magistrates' Court
Act1989

14Schedule 5 amended

Part 6—Amendment of Sentencing Act 1991

15Definitions for purposes of Part 2A

16New section 136 inserted

136Transitional provision—Justice Legislation Amendment (Sex Offences Procedure) Act 2008

17Schedule 1 amended—Serious offender offences

Part 7—Amendment of Sex Offenders
Registration Act 2004

18Length of reporting period

19New section 73C inserted

73CTransitional provision—Justice Legislation Amendment (Sex Offences Procedure) Act 2008

Part 8—Repeal of Amending Act

20Repeal of Act

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Endnotes

SectionPage

Victoria

SectionPage

Justice Legislation Amendment (Sex Offences Procedure) Act 2008[†]

No. 18 of 2008

[Assented to 13 May 2008]

Justice Legislation Amendment (Sex Offences Procedure) Act 2008
No. 18 of 2008

The Parliament of Victoriaenacts:

Part 8—Repeal of Amending Act

Justice Legislation Amendment (Sex Offences Procedure) Act 2008
No. 18 of 2008

Part 1—Preliminary

1Purpose

The purpose of this Act is to amend the following Acts in relation to a legal proceeding that relates (wholly or partly) to a charge for a sexual offence—

(a)the Crimes Act 1958;

(b)the Crimes (Criminal Trials) Act 1999;

(c)the Evidence Act 1958;

(d)the Magistrates' Court Act 1989;

(e) the Sentencing Act 1991;

(f) the Sex Offenders Registration Act 2004.

2Commencement

s. 2

(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2)If a provision of this Act does not come into operation before 1 July 2008, it comes into operation on that day.

______

Part 2—Amendment of Crimes Act 1958

3Time limit on certain prosecutions

s. 3

See:
Act No. 6231.
Reprint No. 19
as at
1 December 2006 and amending
Act Nos
16/2004, 97/2005, 23/2006, 48/2006, 50/2006, 50/2007, 32/2007 and 57/2007.
LawToday:
www.
legislation.
vic.gov.au

(1)In section 359A(1)(a) of the Crimes Act 1958 omit "(if the complainant was under the age of 16 at the time of the alleged offence)".

(2)After section 359A(2) of the Crimes Act 1958 insert—

"(2AA) The trial of a person that relates (wholly or partly) to a charge for a sexual offence in relation to which the complainant was a child or a person who had a cognitive impairment at the time at which the legal proceeding commenced, must commence,and the jurymust be empanelled,not more thanthree months after the person is directed to be tried or the person is charged on indictment or presentment with the alleged offence.

Notes

1See section 41G of the Evidence Act 1958 regarding the requirement to hold a special hearing.

2See section 26 of the Magistrates' Court Act 1989 in relation to the commencement of a proceeding.

(2AAB) The court may grant an extension of the period referred to in subsection (2AA) if the court is satisfied that it is in the interests of justice to do so.

(2AAC) The court may grant an extension of the period referred to in subsection (2AA) whether or not the time has expired, being an extension for a period not exceeding three months.".

(3)In sections 359A(2A), 359A(3) and 359A(4) of the Crimes Act 1958 after "subsection (2)" insert "or (2AA)".

(4)After section 359A(5) of the Crimes Act 1958 insert—

"(6)For the purposes of subsection (2AA),sexual offence means an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) of Division 1 of Part I or under any corresponding previous enactment or an attempt to commit any such offence or an assault with intent to commit any such offence.".

4New section 612 inserted

At the end of Part 7 of the Crimes Act 1958 insert—

"612 Transitional provision—Justice Legislation Amendment (Sex Offences Procedure) Act 2008

The amendments made to this Act by section3 of the Justice Legislation Amendment (Sex Offences Procedure) Act2008—

(a)apply to any legal proceeding that commencesbefore or after the commencement of section 3, irrespective of when the offence to which the proceeding relates is alleged to have been committed; but

(b) do not apply to any legal proceeding that commenced before the commencement of section 3 if, before the commencement of section 3, the accused had been committed for trial or charged on indictment or presentment with the offence to which the proceeding relates.".

5Schedule 8 amended—Forensic sample offences

s. 5

In Schedule 8 to the Crimes Act 1958—

(a)after item 7(a) insert—

"(ab)section 38A (compelling sexual penetration);";

(b)in item 7(k), for "residents of residential facilities" substitute "persons with a cognitive impairment by providers of special programs";

______

Part 3—Amendment of Crimes (Criminal Trials) Act1999

6Presentment to be filed

s. 6

See:
Act No. 35/1999 and amending
Act Nos
53/2000, 18/2005, 2/2006 and 50/2006.
LawToday:
www.
legislation.
vic.gov.au

In section 4(2)(aa) of the Crimes (Criminal Trials) Act 1999, for "7 days" substitute "14days".

7Directions hearing

(1)In section 5(2) of the Crimes (Criminal Trials) Act 1999, for "At the beginning" substitute "Except in the case of a trial referred to in subsection (4)(ba), at the beginning".

(2)After section 5(2) of the Crimes (Criminal Trials) Act 1999 insert—

"(2A)At a directions hearing in the case of a trial referred to in subsection (4)(ba), each count in the presentment may be read to the accused and the accused asked to plead to that count.".

(3)In section 5(4)(ba) of the Crimes (Criminal (Trials) Act 1999 for "is a child or a person with a cognitive impairment" substitute "was a child or a person who had a cognitive impairment at the time at which the legal proceeding commenced".

8New section 35inserted

s. 8

At the end of Part 5 of the Crimes (Criminal Trials) Act 1999 insert—

"35 Transitional provision—Justice Legislation Amendment (Sex Offences Procedure) Act 2008

The amendments made to this Act by sections 6 and 7 of the Justice Legislation Amendment (Sex Offences Procedure) Act 2008—

(a)apply to any legal proceeding that commences before or after the commencement of those provisions, irrespective of when the offence to which the proceeding relates is alleged to have been committed;but

(b) do not apply to any legal proceeding that commenced before the commencement of those provisions if, before that commencement, the accused had been committed for trial or charged on indictment or presentment with the offence to which the proceeding relates.".

______

Part 4—Amendment of Evidence Act 1958

9Use of recorded evidence-in-chief in certain proceedings

s. 9

See:
Act No. 6246.
Reprint No. 15
as at 1 September 2006 and amending
Act Nos 97/2005, 2/2006, 48/2006 and 76/2006.
LawToday:
www.
legislation.
vic.gov.au

After section 37B(3) of the Evidence Act 1958 insert—

"(3A)The admissibility of the recording of the evidence of a person under the age of 18 is not affected only because the person attains the age of 18 years before the evidence is presented in a proceeding.".

10Evidence of previous representations made by child complainants

(1)In section 41D(1) of the Evidence Act 1958 omit "who is under 17 years of age and".

(2)In section 41D(5) of the Evidence Act 1958, after "subsection (1)" insert "for the purpose referred to in subsection (4)(a)".

11Alternative arrangements for giving evidence in certain proceedings by child complainants or complainants with a cognitive impairment

In section 41E(1) of the Evidence Act 1958—

(a)in paragraph (c), for "him or her." substitute "him or her;";

(b)after paragraph (c) insert—

"(d)permitting only persons specified by the court to be present while the witness is giving evidence.".

12Pre-recording evidence at special hearing

s. 12

(1)In section 41G(2) of the Evidence Act 1958, for "child complainant or of a complainant with a cognitive impairment" substitute "complainant who was a child or who had a cognitive impairment at the time at which the proceeding was commenced".

(2)In section 41G(4)(a) of the Evidence Act 1958, for "21 days" substitute "3 months".

(3) At the foot of section 41G(4) of the Evidence Act 1958 insert—

"Note

See section 359A of the Crimes Act 1958regarding time limits on certain prosecutions.".

13New section 160 inserted

After section 159 of the Evidence Act 1958 insert—

"160 Transitional provision—Justice Legislation Amendment (Sex Offences Procedure) Act 2008

(1)The amendments made to this Act by sections 9, 10 and 11of the Justice Legislation Amendment (Sex Offences Procedure) Act 2008 apply to a proceeding for an offence that is commenced on or after the commencement of thoseprovisions, irrespective of when the offence to which the proceeding relates is alleged to have been committed.

(2)The amendments made to this Act by section12of the Justice Legislation Amendment (Sex Offences Procedure) Act2008—

(a)apply to any legal proceeding that commences before or after the commencement of section 12, irrespective of when the offence to which the proceeding relates is alleged to have been committed; but

(b) do not apply to any legal proceeding that commenced before the commencement of section 12 if, before the commencement of section 12, the accused had been committed for trial or charged on indictment or presentment with the offence to which the proceeding relates.".

s. 13

______

Part 5—Amendment of Magistrates' Court Act1989

14Schedule 5 amended

s. 14

See:
Act No. 51/1989.
Reprint No. 13
as at 15August 2007
and amending
Act Nos77/2004, 51/2006, 50/2007, 52/2007 and 53/2007.
LawToday:
www.
legislation.
vic.gov.au

For clause 11A(b) of Schedule 5 to the Magistrates' Court Act 1989 substitute—

"(b)was a child or a person with a cognitive impairment at the time at which the proceeding was commenced; and".

______

Part 6—Amendment of Sentencing Act 1991

15Definitions for purposes of Part 2A

s. 15

See:
Act No. 49/1991. Reprint No. 10 as at
23 April 2007 and amending
Act Nos 97/2005, 23/2006, 24/2006 and 56/2007.
LawToday:
www.
legislation.
vic.gov.au

In the definition of serious sexual offender in section 6B(2) of the Sentencing Act 1991, after paragraph (a) insert—

"(ab)who has been convicted of an offence to which clause 1(a)(viii) of Schedule 1 applies for which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre; or".

16New section 136 inserted

At the end of Part 12 of the Sentencing Act 1991 insert—

"136 Transitional provision—Justice Legislation Amendment (Sex Offences Procedure) Act 2008

(1)The amendment made to this Act by section15 of the Justice Legislation Amendment (Sex Offences Procedure) Act2008 applies to a sentence imposed in respect of an offence alleged to have been committed on or after that commencement.

(2)For the purposes of subsection (1), if an offence is alleged to have been committed between two dates, one before and one after the commencement of section 15 of the Justice Legislation Amendment (Sex Offences Procedure) Act 2008, the offence is alleged to have been committed before that commencement.

17Schedule 1 amended—Serious offender offences

s. 17

In item 1(a)(viiib) of Schedule 1 to the Sentencing Act 1991, after "with 16" insert "or17".

______

Part 7—Amendment of Sex Offenders Registration Act 2004

18Length of reporting period

s. 18

See:
Act No. 56/2004.
Reprint No. 2
as at 1 December 2006 and amending
Act Nos 24/2006, 48/2006, 28/2007 and 52/2007.
LawToday:
www.
legislation.
vic.gov.au

(1)In section 34(1)(b)(i) of the Sex Offenders Registration Act 2004, after "Class 1 offence" insert "(other than an offence referred to in item 2 of Schedule 1)".

(2)After section 34(1)(c)(i) of the Sex Offenders Registration Act 2004 insert—

"(ia)has ever been found guilty of a single offence referred to in item 2 of Schedule 1; or".

19New section 73C inserted

After section 73B of the Sex Offenders Registration Act 2004 insert—

"73C Transitional provision—Justice Legislation Amendment (Sex Offences Procedure) Act 2008

(1)The amendments made to this Act by section18 of the Justice Legislation Amendment (Sex Offences Procedure) Act 2008 apply to a person who is sentenced for a registrable offence on or after the commencement of that section.

(2)For the purposes of subsection (1), a sentence imposed by an appellate court on setting aside a sentencing order must be taken to have been imposed at the time the original sentencing order was made.".

______

Part 8—Repeal of Amending Act

20Repeal of Act

s. 20

This Act is repealedon 1 July 2009.

Note

The repeal of this Act does not affect the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Justice Legislation Amendment (Sex Offences Procedure) Act 2008
No. 18 of 2008

Endnotes

[†] Minister's second reading speech—

Legislative Assembly: 12 March 2008

Legislative Council: 10 April 2008

The long title for the Bill for this Act was "A Bill for an Act to amend the Crimes Act 1958, the Crimes (Criminal Trials) Act 1999, the Evidence Act 1958, the Magistrates' Court Act 1989, the Sentencing Act 1991 and the Sex Offenders Registration Act 2004 and for other purposes."