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Crimes Legislation Further Amendment Act 2017

Act

Act No.

Endnotes

Crimes Legislation Further Amendment Act2017No. 6 of 2017

Crimes Legislation Further Amendment Act2017

No. 6 of 2017

table of provisions

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Confidential Draft prepared by the Office of Chief Parliamentary Counsel Victoria

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Part 1Preliminary1

1Purposes1

2Commencement2

Part 2Amendment of the Criminal Procedure Act 20093

3New section 232A inserted3

4Accused entitled to respond after close of prosecution case4

5Note inserted5

6Summary offence related to indictable offence5

7Unrelated summary offence6

8Orders etc. on successful appeal6

9New section 447 inserted6

Part 3Amendment of the Crimes (MentalImpairment and Unfitness tobeTried) Act 19977

10Procedure on investigation under Part 27

11Procedure at special hearings under Part 37

12Transitional provision inserted7

Part 4Amendment of the Crimes Act 19588

13Attempt to commit certain sexual offences8

14New section 631 inserted8

Part 5Amendment of the Jury DirectionsAct 201510

15Application of Division 1 of Part 510


17New clause 3 of Schedule 1 inserted10

Part 6Repeal of amending Act11

18Repeal of amending Act11

Endnotes12

SectionPage

1General information12

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Victoria

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Crimes Legislation Further Amendment Act2017[endnoteRef:2] [2: Minister's second reading speechLegislative Assembly: 26 October 2016Legislative Council: 24 November 2016The long title for the Bill for this Act was "A Bill for an Act to make miscellaneous amendments to the CriminalProcedure Act 2009, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the Crimes Act 1958 and theJury Directions Act 2015 and for other purposes."]

No. 6 of 2017

[Assented to 15 March 2017]


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The Parliament of Victoria enacts:

Part 1Preliminary

1Purposes

The purposes of this Act are

(a)to amend the Criminal Procedure Act2009

(i)to enable expert evidence to be given concurrently or consecutively in a criminal trial; and

(ii)to enable the Supreme Court or the County Court to hear and determine a charge for a summary offence when the prosecution discontinues a proceeding for an indictable offence; and

(iii)to expand the orders available to the Court of Appeal on a successful appeal against conviction; and

(b)to amend the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to enable expert evidence to be given concurrently or consecutively in

(i)an investigation into the fitness of an accused to stand trial under Part 2 of that Act; and

(ii)a special hearing under Part 3 of that Act; and

(c)to amend the Crimes Act 1958 to clarify thefault element for an offence of attempt tocommit certain sexual offences; and

(d)to amend the Jury Directions Act 2015 to ensure that Part 5 of that Act also applies toacharge for an offence of conspiracy, incitement or attempt to commit certain sexual offences.

2Commencement

(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 April 2017, it comes into operation on that day.

Part 2Amendment of the Criminal Procedure Act 2009

3New section 232A inserted

After section 232 of the Criminal Procedure Act2009 insert

"232ATrial judge may give directions about thegiving of concurrent or consecutive evidence by expert witnesses

(1)This section applies despite sections 226 and231(2).

(2)The trial judge, with the consent of the prosecution and the accused, may direct that2 or more expert witnesses give evidence concurrently or consecutively.

(3)In determining the procedure to be followed for the giving of evidence concurrently or consecutively, the trial judge may direct that any expert witness

(a)give evidence at any stage of the trial, including after all factual evidence hasbeen adduced on behalf of the prosecution and the accused; or

(b)give an oral exposition of the opinion of the expert witness on any issue; or

(c)give the opinion of the expert witness of any opinion given by another expert witness; or

(d)be examined, cross-examined or reexamined in a particular manner orsequence, including by putting toeach expert witness in turn each question relevant to one matter or issueat a time; or

(e)be permitted to ask questions of anyother expert witness who is concurrently giving evidence.

(4)The trial judge may question any expert witness to identify the real issues in dispute between 2 or more expert witnesses, including questioning more than one expert witness at the same time.

(5)Nothing in this section limits any other power the court may have in relation to casemanagement, evidence or witnesses, including expert witnesses.".

4Accused entitled to respond after close of prosecution case

(1)At the end of section 226 of the Criminal Procedure Act 2009 insert

"(2)When ruling on a no-case submission by anaccused, the trial judge may take into account the evidence already given of an expert witness called on behalf of any accused in the trial.".

(2)At the foot of section 226(1) of the Criminal Procedure Act 2009 insert

"Note

Section 232A enables the trial judge, with the consent of the prosecution and the accused, to direct that expert witnesses give their evidence concurrently or consecutively. The trial judge may direct that this evidence be given at any stage of the trial, including before the prosecution has closed its case.".

5Note inserted

At the foot of section 231(2) of the Criminal Procedure Act 2009 insert

"Note

Section 232A enables the trial judge, with the consent of the prosecution and the accused, to direct that expert witnesses give their evidence concurrently or consecutively. The trial judge may direct that this evidence be given at any stage of the trial, including before the prosecution has closed its case.".

6Summary offence related to indictable offence

(1)After section 242(1) of the Criminal Procedure Act 2009 insert

"(1A)If all charges for an indictable offence against an accused before the Supreme Court or the County Court have been discontinued, the court may hear and determine a charge for a related summary offence.".

(2)In section 242(3) of the Criminal Procedure Act2009

(a)in paragraph (a), for "the trial" substitute "atrial";

(b)in paragraph (b), for "offence." substitute "offence;";

(c)after paragraph (b) insert

"(c)in the case of a discontinuance of prosecution of an indictable offence against the accused, the depositions and all exhibits and all recordings referred to in section 139 that were admitted in evidence in the committal proceeding in relation to the indictable offence.".

7Unrelated summary offence

After section 243(1) of the Criminal Procedure Act 2009 insert

"(1A)If all charges for an indictable offence against an accused before the Supreme Court or the County Court have been discontinued, the court may hear and determine a charge for a summary offence that is not a related summary offence if the accused

(a)consents to the court hearing and determining the charge for the summary offence; and

(b)states an intention to plead guilty to the charge for the summary offence.".

8Orders etc. on successful appeal

In section 277(1)(c)(ii) of the Criminal Procedure Act 2009, after "jury" insert "or, in the case of a plea of guilty to offence A, the trial judge".

9New section 447 inserted

After section 446 of the Criminal Procedure Act2009 insert

"447Transitional provisionCrimes Legislation Further Amendment Act 2017

This Act as amended by sections 3, 4 and5of the Crimes Legislation Further Amendment Act 2017 applies to a trial thatcommences on or after the day on whichthose sections come into operation.".

Part 3Amendment of the Crimes (MentalImpairment and Unfitness tobeTried) Act 1997

10Procedure on investigation under Part 2

After section 11(1A) of the Crimes (MentalImpairment and Unfitness to beTried)Act1997 insert

"(1B)Section 232A of the Criminal Procedure Act 2009 applies to an investigation as if theinvestigation were a trial.".

11Procedure at special hearings under Part 3

At the foot of section 16(2) of the Crimes (Mental Impairment and Unfitness to be Tried)Act 1997 insert

"Note

At a special hearing the judge may give directions under section 232A of the Criminal Procedure Act 2009. Thatsection enables the judge, with the consent of the prosecution and the accused, to direct that expert witnesses give their evidence concurrently or consecutively. The judge may direct that this evidence be given at any stage of the special hearing, including before the prosecution has closed its case.".

12Transitional provision inserted

In Schedule 3 to the Crimes (Mental Impairment and Unfitness to be Tried) Act1997, after clause 15 insert


This Act as amended by Part 3 of the Crimes Legislation Further Amendment Act 2017 applies to an investigation into the fitness of an accused to stand trial that commences on or after the day on which that Part comes into operation.".


13Attempt to commit certain sexual offences

(1)In section 321N(2)(b) of the Crimes Act 1958, after "(b)" insert "subject to subsection (2A),".

(2)After section 321N(2) of the Crimes Act 1958 insert

"(2A)For the purposes of subsection (2)(b), in thecase of an attempt to commit an offence against section 38 (rape), section 39 (rape by compelling sexual penetration), section 40 (sexual assault) or section 41 (sexual assault by compelling sexual touching), instead ofthe element of the offence referred to insection 38(1)(c), 39(1)(c), 40(1)(d) or41(1)(d), it must be proved that at the timeof the attempt the person (A) does not reasonably believe that the person against whom the offence is to be committed (B) would consent to the penetration or the touching (as the case requires).".

14New section 631 inserted

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


(1)The amendments made to this Act by Part4of the Crimes Legislation Further Amendment Act 2017 apply only to offences alleged to have been committed onor after the commencement of that Part.

(2)For the purposes of subsection (1), if an offence is alleged to have been committed between 2 dates, one before and one on or after the commencement of Part 4 of the Crimes Legislation Further Amendment Act 2017, the offence is alleged to have been committed before that commencement.".

Part 5Amendment of the Jury DirectionsAct 2015


In section 45 of the Jury Directions Act 2015, after "1958" insert "or a charge for an offence ofconspiracy, incitement or attempt to commit anoffence against any of those provisions".


In section 48 of the Jury Directions Act 2015, after "offence" insert "or a charge for an offence of conspiracy or incitement to commit a sexual offence".

17New clause 3 of Schedule 1 inserted

At the end of Schedule 1 to the Jury Directions Act 2015 insert

"3Crimes Legislation Further Amendment Act 2017

The amendments made to this Act by Part5of the Crimes Legislation Further Amendment Act 2017 apply to a trial thatcommences (within the meaning of section 210 of the Criminal Procedure Act2009) on or after the day on which Part5 of the Crimes Legislation Further Amendment Act 2017 comes into operation.".

Part 6Repeal of amending Act

18Repeal of amending Act

This Act is repealed on 1 April 2018.

Note

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

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Endnotes1General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.


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