Justice Legislation Amendment (Victims) Act 2018

Authorised by the Chief Parliamentary Counsel Authorised Version i Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 TABLE OF PROVISIONS Section Page Part 1—Preliminary 1 1 Purposes 1 2 Commencement 3 Part 2—Sexual offences and forensic information 4 Division 1—Amendment of Crimes Act 1958 4 3 Definitions 4 4 Effect of intoxication on reasonable belief 4 5 Defence—accused not more than 2 years older than 16 or 17 year old child and acts with child's consent 4 6 Failure to disclose sexual offence committed against child under the age of 16 years 5 7 Section 425 repealed 6 8 Records of juvenile 6 9 Forensic information from juveniles 6 10 New section 633 inserted 7 Division 2—Amendment of Criminal Procedure Act 2009 8 11 Definitions 8 12 Section 4 substituted 9 13 Application of Division 5 of Part 8.2 12 14 Application of Division 7A of Part 8.2 12 15 Audiovisual link evidence from overseas in certain proceedings 14 16 New section 450 inserted 14 17 Schedule 1 amended 15 Division 3—Amendment of other Acts 15 18 Judicial Proceedings Reports Act 1958 15 19 Jury Directions Act 2015 15 20 Summary Offences Act 1966 15 21 Victims' Charter Act 2006 15 22 Victims of Crime Assistance Act 1996 16 Part 3—Amendment of Children, Youth and Families Act 2005 17 23 Restriction on publication of proceedings 17 -- 1 of 38 -- Section Page ii Authorised by the Chief Parliamentary Counsel 24 New section 534A inserted 17 Part 4—Amendment of Criminal Procedure Act 2009 19 Division 1—New Part 8.2A inserted 19 25 New Part 8.2A inserted 19 Division 2—Consequential and statute law revision amendments 26 26 Definitions 26 27 Special rules applicable to sexual offences 27 28 When accused is not legally represented 27 29 Application of this Division 27 30 Regulations 27 31 New section 451 inserted 28 Part 5—Amendment of Sentencing Act 1991 29 32 Sentencing guidelines 29 33 New section 5AA inserted 29 34 New section 164 inserted 30 35 Schedule 1 amended 30 Part 6—Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 31 36 Schedule 1 amended 31 Part 7—Amendment of Victims of Crime Assistance Act 1996 32 37 Time for making application 32 38 New section 82 inserted 32 Part 8—Amendment of Family Violence Protection Act 2008 33 39 Information sharing entity authorised to share confidential information despite specified provisions 33 40 Procedural requirements for person directed to a police station, or person apprehended and detained 33 41 Schedule 1 amended 33 Part 9—Statute law revision 34 42 Crimes Act 1958 34 43 Jury Directions Act 2015 34 Part 10—Repeal of amending Act 35 44 Repeal of amending Act 35 ═════════════ Endnotes 36 1 General information 36 -- 2 of 38 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Justice Legislation Amendment (Victims) Act 2018 † No. 5 of 2018 [Assented to 27 February 2018] The Parliament of Victoria enacts: Part 1—Preliminary 1 Purposes The purposes of this Act are— (a) to amend the Crimes Act 1958— (i) in relation to sexual offences; and Victoria -- 3 of 38 -- Part 1—Preliminary Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 2 Authorised by the Chief Parliamentary Counsel (ii) in relation to the destruction of fingerprints, DNA samples and related forensic material and information; and (iii) to make other minor and technical changes; and (b) to amend the Sentencing Act 1991— (i) in relation to the presence of certain mitigating factors in the sentencing of an offender in respect of a child sexual offence; and (ii) to provide for a further historical sexual offence to which Part 2A applies in the sentencing of a serious sexual offender; and (c) to amend the Criminal Procedure Act 2009— (i) in relation to sexual offences; and (ii) to provide for ground rules hearings in relation to the questioning of certain witnesses; and (iii) to provide for intermediaries for certain witnesses; and (d) to amend the Victims of Crime Assistance Act 1996 to provide that an application may be made at any time in respect of an act of violence against a person under 18 years that consists of physical abuse or sexual abuse; and (e) to amend various other Acts to update and modify references to various sexual offences; and (f) to make other minor and consequential amendments to various other Acts. -- 4 of 38 -- Part 1—Preliminary Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 3 Authorised by the Chief Parliamentary Counsel 2 Commencement (1) This Act (other than sections 32 and 33 and Parts 6, 7 and 8) comes into operation on the day after the day on which this Act receives the Royal Assent. (2) Subject to subsection (3), sections 32 and 33 and Parts 6, 7 and 8 come into operation on a day or days to be proclaimed. (3) If a provision referred to in subsection (2) does not come into operation before 1 July 2018, it comes into operation on that day. -- 5 of 38 -- Part 2—Sexual offences and forensic information Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 4 Authorised by the Chief Parliamentary Counsel Part 2—Sexual offences and forensic information Division 1—Amendment of Crimes Act 1958 3 Definitions (1) In section 35(1) of the Crimes Act 1958, for the definition of vagina substitute— "vagina includes the external genitalia;". (2) After section 35(2) of the Crimes Act 1958 insert— "(3) For the purposes of Subdivisions (8A) to (8FA), a reference to a part of the body includes a reference to a surgically altered or constructed part of the body.". 4 Effect of intoxication on reasonable belief (1) In section 36B(2) of the Crimes Act 1958— (a) after paragraph (c) insert— "(ca) from the use of a medicinal cannabis product in accordance with a patient medicinal cannabis access authorisation; or"; (b) in paragraph (d), after "not required" insert "(other than a medicinal cannabis product)". (2) In section 36B(3) of the Crimes Act 1958, for "(2)(c) or (d)" substitute "(2)(c), (ca) or (d)". 5 Defence—accused not more than 2 years older than 16 or 17 year old child and acts with child's consent In section 51P(1)(d) of the Crimes Act 1958, for "did" substitute "does". -- 6 of 38 -- Part 2—Sexual offences and forensic information Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 5 Authorised by the Chief Parliamentary Counsel 6 Failure to disclose sexual offence committed against child under the age of 16 years In section 327(1) of the Crimes Act 1958, for the definition of sexual offence substitute— "sexual offence means— (a) an offence committed under Subdivision (8A), (8B), (8C), (8E), (8F) or (8FA) of Division 1 of Part I on or after 1 July 2017; or (b) an offence committed under Subdivision (8D) of Division 1 of Part I on or after 1 July 2017 other than an offence that only relates to child abuse material of a kind described in paragraph (a)(i)(A) of the definition of child abuse material in section 51A(1), where the torture, cruelty or abuse is not sexual; or Example An offence committed under Subdivision (8D) of Division 1 of Part I that relates to child abuse material that depicts or describes a child as a victim of sexual abuse. (c) an offence committed before 1 July 2017 under Subdivision (8A), (8B), (8C), (8D), (8E) or (8EAA) as then in force; or (d) an attempt to commit an offence referred to in paragraph (a), (b) or (c); or (e) an assault with intent to commit an offence referred to in paragraph (a), (b) or (c).". -- 7 of 38 -- Part 2—Sexual offences and forensic information Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 6 Authorised by the Chief Parliamentary Counsel 7 Section 425 repealed Section 425 of the Crimes Act 1958 is repealed. 8 Records of juvenile For section 464P(2) of the Crimes Act 1958 substitute— "(2) Subsection (1) does not apply to fingerprints retained as a result of a finding of guilt of an offence if— (a) the offence is— (i) an offence against this Act; or (ii) an offence at common law the maximum penalty for which is specified by this Act; and (b) the offence is punishable by level 4 imprisonment (15 years maximum) or more (however the penalty is described).". 9 Forensic information from juveniles For section 464ZGA(2) of the Crimes Act 1958 substitute— "(2) Subsection (1) does not apply if— (a) the person from whom the sample was taken is found guilty of— (i) the offence in relation to which the forensic procedure was conducted; or (ii) an offence arising out of the same circumstances as the offence referred to in subparagraph (i); or -- 8 of 38 -- Part 2—Sexual offences and forensic information Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 7 Authorised by the Chief Parliamentary Counsel (iii) an offence in respect of which evidence obtained as a result of the forensic procedure had probative value; and (b) the offence of which the person is found guilty is— (i) an offence against this Act; or (ii) an offence at common law the maximum penalty for which is specified by this Act; and (c) the offence of which the person is found guilty is punishable by level 4 imprisonment (15 years maximum) or more (however the penalty is described); and (d) the sample— (i) was taken in accordance with an order under section 464ZF(2); or (ii) is the subject of an order under section 464ZFB(1).". 10 New section 633 inserted At the end of Part 7 of the Crimes Act 1958 insert— "633 Transitional provision—Justice Legislation Amendment (Victims) Act 2018 (1) Despite the amendment made to section 464ZGA by section 9 of the Justice Legislation Amendment (Victims) Act 2018, section 464ZGA as in force immediately before the commencement day continues to apply to— -- 9 of 38 -- Part 2—Sexual offences and forensic information Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 8 Authorised by the Chief Parliamentary Counsel (a) a sample that was taken in accordance with an order under section 464ZF(2) that was made before the commencement day; or (b) a sample in respect of which an order under section 464ZFB(1) was made before the commencement day. (2) Section 464ZGA, as amended by section 9 of the Justice Legislation Amendment (Victims) Act 2018, applies in relation to a sample— (a) taken in accordance with an order under section 464ZF(2) that was made on or after the commencement day; or (b) that is the subject of an order under section 464ZFB(1) that was made on or after the commencement day. (3) In this section— commencement day means the day on which section 9 of the Justice Legislation Amendment (Victims) Act 2018 comes into operation.". Division 2—Amendment of Criminal Procedure Act 2009 11 Definitions (1) In section 3 of the Criminal Procedure Act 2009 insert the following definition— "child means a person under the age of 18 years;". (2) In section 3 of the Criminal Procedure Act 2009, for the definition of sexual offence substitute— "sexual offence has the meaning given by section 4;". -- 10 of 38 -- Part 2—Sexual offences and forensic information Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 9 Authorised by the Chief Parliamentary Counsel 12 Section 4 substituted For section 4 of the Criminal Procedure Act 2009 substitute— "4 Meaning of sexual offence (1) In this Act, sexual offence means any of the following offences (other than an offence excluded by subsection (2))— (a) an offence against— (i) a provision of Subdivision (8A), (8B), (8C), (8D), (8E), (8F) or (8FA) of Division 1 of Part I of the Crimes Act 1958; or (ii) section 327(2) (failure to disclose a sexual offence committed against a child under the age of 16 years) of the Crimes Act 1958; or (iii) section 5(1), 6(1), 7(1), 8(1), 9(1) or 11(1) of the Sex Work Act 1994; (b) an offence an element of which involves— (i) any person engaging in sexual activity; or (ii) any person taking part in a sexual act; or (iii) commercial sexual services; or (iv) a sexual performance involving a child; -- 11 of 38 -- Part 2—Sexual offences and forensic information Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 10 Authorised by the Chief Parliamentary Counsel (c) an offence an element of which involves— (i) an intention that any of the conduct referred to in paragraph (b) is to occur; or (ii) soliciting, procuring, enabling or threatening any of the conduct referred to in paragraph (b); or (iii) inducing or knowingly allowing a child to enter or remain on premises so that any of the conduct referred to in paragraph (b) may occur; (d) an offence an element of which involves child abuse material; (e) an offence an element of which involves indecency; (f) an offence of attempting to commit, or of incitement or conspiracy to commit, an offence referred to in paragraph (a), (b), (c), (d) or (e); (g) an offence against section 49C(2) (failure by person in authority to protect child from sexual offence) of the Crimes Act 1958 as in force before the commencement of section 16 of the Crimes Amendment (Sexual Offences) Act 2016. (2) An offence against a provision of the Sex Work Act 1994 that is not referred to in subsection (1)(a)(iii) is not a sexual offence. (3) In determining whether an offence at common law is a sexual offence, it does not matter that the offence has since been abolished. -- 12 of 38 -- Part 2—Sexual offences and forensic information Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 11 Authorised by the Chief Parliamentary Counsel (4) In determining whether an offence against an enactment is a sexual offence, it does not matter that the enactment has since been repealed. (5) In determining whether an offence is a sexual offence, it does not matter that the offence is described in this section— (a) differently from how it is described in the enactment or common law that establishes the offence; or (b) by reference to an enactment that was not in operation on the date on which the offence is alleged to have been committed. Example Subdivision (13) of Division 1 of Part I of the Crimes Act 1958 previously included offences involving child pornography. That Subdivision has been repealed and replaced by new offences that refer to child abuse material rather than child pornography. Child pornography was defined to include material of a certain kind, and child abuse material is now defined as also including material of that kind. An offence against a provision of repealed Subdivision (13) is therefore a sexual offence under subsection (1)(d). (6) In this section— commercial sexual services has the meaning given by section 53A of the Crimes Act 1958; sexual, in relation to an activity, has the meaning given by section 35D of the Crimes Act 1958; sexual performance has the meaning given by section 49Q(3) of the Crimes Act 1958; -- 13 of 38 -- Part 2—Sexual offences and forensic information Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 12 Authorised by the Chief Parliamentary Counsel taking part in a sexual act has the meaning given by section 35C of the Crimes Act 1958.". 13 Application of Division 5 of Part 8.2 In section 366(1)(b) of the Criminal Procedure Act 2009, for "person." substitute "person; or". 14 Application of Division 7A of Part 8.2 For section 387A(1) of the Criminal Procedure Act 2009 substitute— "(1) This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for— (a) an offence against any of the following provisions of the Crimes Act 1958— (i) section 38 (rape); (ii) section 39 (rape by compelling sexual penetration); (iii) section 49A (sexual penetration of a child under the age of 12); (iv) section 49B (sexual penetration of a child under the age of 16); (v) section 49C (sexual penetration of a child aged 16 or 17 under care, supervision or authority); (vi) section 49D (sexual assault of a child under the age of 16); (vii) section 49E (sexual assault of a child aged 16 or 17 under care, supervision or authority); -- 14 of 38 -- Part 2—Sexual offences and forensic information Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 13 Authorised by the Chief Parliamentary Counsel (viii) section 49F (sexual activity in the presence of a child under the age of 16); (ix) section 49G (sexual activity in the presence of a child aged 16 or 17 under care, supervision or authority); (x) section 49H (causing a child under the age of 16 to be present during sexual activity); (xi) section 49I (causing a child aged 16 or 17 under care, supervision or authority to be present during sexual activity); (xii) section 49J (persistent sexual abuse of a child under the age of 16); (xiii) section 50C (sexual penetration of a child or lineal descendant); (xiv) section 50D (sexual penetration of a step-child); (xv) section 50E (sexual penetration of a parent, lineal ancestor or step-parent); (xvi) section 50F (sexual penetration of a sibling or half-sibling); or (b) an offence of attempting to commit, or of incitement or conspiracy to commit, an offence referred to in paragraph (a).". -- 15 of 38 -- Part 2—Sexual offences and forensic information Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 14 Authorised by the Chief Parliamentary Counsel 15 Audiovisual link evidence from overseas in certain proceedings (1) For section 389(1) of the Criminal Procedure Act 2009 substitute— "(1) This section applies to a criminal proceeding that relates (wholly or partly) to a charge for an offence against— (a) section 49S(1) of the Crimes Act 1958; or (b) section 49A(1) of the Crimes Act 1958 as in force before the commencement of section 16 of the Crimes Amendment (Sexual Offences) Act 2016.". (2) In section 389(8) of the Criminal Procedure Act 2009, for "an offence against section 49A(1) of the Crimes Act 1958" substitute "an offence referred to in subsection (1)". 16 New section 450 inserted At the end of Chapter 10 of the Criminal Procedure Act 2009 insert— "450 Transitional provision—Justice Legislation Amendment (Victims) Act 2018—section 387A Section 387A(1) as in force immediately before the commencement of section 14 of the Justice Legislation Amendment (Victims) Act 2018 continues to apply to a criminal proceeding as if section 387A(1) had not been amended if— (a) the criminal proceeding is commenced after the commencement of section 14 of that Act; and -- 16 of 38 -- Part 2—Sexual offences and forensic information Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 15 Authorised by the Chief Parliamentary Counsel (b) the proceeding relates (wholly or partly) to a charge for an offence against a provision referred to in section 387A(1) before that commencement.". 17 Schedule 1 amended In Schedule 1 to the Criminal Procedure Act 2009, for the note at the foot of clause 4A(1) substitute— "Note Sexual offence is defined in section 4.". Division 3—Amendment of other Acts 18 Judicial Proceedings Reports Act 1958 In section 4(1) of the Judicial Proceedings Reports Act 1958, in the definition of sexual offence, after "(8C)," insert "(8D),". 19 Jury Directions Act 2015 In the note at the foot of section 46(2) of the Jury Directions Act 2015, for "section 36" substitute "Section 36". 20 Summary Offences Act 1966 After section 19(6) of the Summary Offences Act 1966 insert— "(7) In this section, a reference to genitals includes a reference to surgically altered or constructed genitals.". 21 Victims' Charter Act 2006 In section 3(1) of the Victims' Charter Act 2006, in the definition of victim, in paragraph (d)— (a) for "section 49B" substitute "section 49M"; -- 17 of 38 -- Part 2—Sexual offences and forensic information Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 16 Authorised by the Chief Parliamentary Counsel (b) after "sexual conduct with" insert "a"; (c) omit "years". 22 Victims of Crime Assistance Act 1996 In section 3(1) of the Victims of Crime Assistance Act 1996, in the definition of relevant offence, in paragraph (b), for "(8E) or (8FA)" substitute "(8D), (8E), (8F) or (8FA)". -- 18 of 38 -- Part 3—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 17 Authorised by the Chief Parliamentary Counsel Part 3—Amendment of Children, Youth and Families Act 2005 23 Restriction on publication of proceedings (1) In section 534(4) of the Children, Youth and Families Act 2005, after "(3B)" insert "or section 534A(2)". (2) At the foot of section 534 of the Children, Youth and Families Act 2005 insert— "Note See section 534A for a further exception to section 534(1).". 24 New section 534A inserted After section 534 of the Children, Youth and Families Act 2005 insert— "534A Certain publications exempted from the restriction on publication of proceedings (1) Subject to subsection (2), section 534(1) does not apply to the publication of— (a) a report of a proceeding in the Criminal Division of the Court, or of a proceeding in any other court arising out of a proceeding in that Division, that contains particulars likely to lead to the identification of a witness in the proceeding, if the witness— (i) is a victim or alleged victim; and (ii) is of or above the age of 18 years at the time of publication; or (b) a picture as being or including a picture of a witness referred to in paragraph (a). -- 19 of 38 -- Part 3—Amendment of Children, Youth and Families Act 2005 Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 18 Authorised by the Chief Parliamentary Counsel (2) Subsection (1) does not apply if the publication would be likely to lead to the identification of— (a) the particular venue of the Children's Court, other than the Koori Court (Criminal Division) or the Neighbourhood Justice Division, in which the proceeding was heard; or (b) a child or other party to the proceeding; or (c) a witness in the proceeding, other than a witness referred to in subsection (1)(a). (3) For the purposes of this section, alleged victim means a person who would be a victim in relation to an offence if the offence were proven.". -- 20 of 38 -- Part 4—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 19 Authorised by the Chief Parliamentary Counsel Part 4—Amendment of Criminal Procedure Act 2009 Division 1—New Part 8.2A inserted 25 New Part 8.2A inserted After Part 8.2 of the Criminal Procedure Act 2009 insert— "Part 8.2A—Ground rules hearings and intermediaries Division 1—Ground rules hearings 389A Application of Division (1) This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for— (a) a sexual offence; or (b) an offence if the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008; or (c) an indictable offence which involves an assault on, or injury or a threat of injury to, a person; or (d) any offences against section 23 or 24 of the Summary Offences Act 1966 if the offences are related offences to an offence specified in paragraph (a) or (c), despite whether any such related offences are withdrawn or dismissed before an offence against section 23 or 24 of the Summary Offences Act 1966 is heard and determined. -- 21 of 38 -- Part 4—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 20 Authorised by the Chief Parliamentary Counsel (2) This Division applies at any stage of the criminal proceeding, including an appeal or rehearing. (3) This Division applies to a witness (including a complainant) other than the accused in a criminal proceeding referred to in subsection (1) if the witness is— (a) a person under the age of 18 years; or (b) a person with a cognitive impairment. (4) In this Division, witness means a witness referred to in subsection (3). 389B Ground rules hearing to be held (1) The court may direct that a ground rules hearing under this Division is to be held. Note Section 337(1) enables this direction to be made by the court on the application of a party or on its own motion. (2) An application for the court to direct that a ground rules hearing is to be held may be made orally or in writing. (3) A ground rules hearing must be held if an intermediary is appointed under Division 2. 389C Time limits for ground rules hearing (1) If a ground rules hearing is to be held, it must be held before the commencement of any hearing at which a witness is to give evidence. (2) The court may extend the time for holding a ground rules hearing if the court considers that it is in the interests of justice to do so. -- 22 of 38 -- Part 4—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 21 Authorised by the Chief Parliamentary Counsel (3) The court may extend time under subsection (2) before or after the time expires. (4) More than one extension of time may be granted under subsection (2). 389D Attendance for ground rules hearings (1) The following persons must attend a ground rules hearing— (a) a person acting for the prosecution; (b) the legal practitioner representing the accused or, if the accused is unrepresented, the accused; (c) the intermediary appointed for a witness, if any. (2) A witness is not required to attend a ground rules hearing. (3) The court may make an order that a witness for whom an intermediary is appointed not attend a ground rules hearing. 389E Directions which may be given at ground rules hearings (1) At a ground rules hearing, the court may make or vary any direction for the fair and efficient conduct of the proceeding. (2) Without limiting subsection (1), the court may give one or more of the following directions— (a) a direction about the manner of questioning a witness; (b) a direction about the duration of questioning a witness; (c) a direction about the questions that may or may not be put to a witness; -- 23 of 38 -- Part 4—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 22 Authorised by the Chief Parliamentary Counsel (d) if there is more than one accused, a direction about the allocation among the accused of the topics about which a witness may be asked; (e) a direction about the use of models, plans, body maps or similar aids to help communicate a question or an answer; (f) a direction that if a party intends to lead evidence that contradicts or challenges the evidence of a witness or that otherwise discredits a witness, the party is not obliged to put that evidence in its entirety to the witness in cross-examination. Note A direction referred to in paragraph (f) may exclude all or part of the operation of the rule attributed to Browne v Dunn (1893) 6 R 67 followed and applied in criminal proceedings in Victoria in R v McDowell [1997] 1 VR 473 (CA), R v MG (2006) 175 A Crim R 342, R v SWC (2007) 175 A Crim R 71 and R v Ferguson (2009) VR 531 in the circumstances in which, and in relation to witnesses to which, this Division applies. Division 2—Intermediaries 389F Application of Division (1) This Division applies to a witness (other than the accused) in a criminal proceeding if— (a) at the time at which the proceeding commences, the witness— (i) is under the age of 18 years; or (ii) has a cognitive impairment; and (b) the criminal proceeding is in a participating venue of a court. -- 24 of 38 -- Part 4—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 23 Authorised by the Chief Parliamentary Counsel (2) This Division applies at any stage of the criminal proceeding, including an appeal or rehearing. (3) In this Division (other than in section 389J(4)(c)), witness means a witness referred to in subsection (1). 389G Participating venues of courts The Minister may, by notice published in the Government Gazette, declare a venue of a court to be a participating venue for the purposes of this Division. 389H Panel of intermediaries (1) The Secretary to the Department of Justice and Regulation must establish a panel of persons who the Secretary is satisfied are suitable persons to be appointed as intermediaries. (2) A person must not be on the panel unless the person— (a) has a tertiary qualification in psychology, social work, speech pathology or occupational therapy; or (b) has other prescribed qualifications, training, experience or skills. (3) The Secretary to the Department of Justice and Regulation must remove a person from the panel if the Secretary is no longer satisfied that the person is a suitable person to be appointed as an intermediary. -- 25 of 38 -- Part 4—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 24 Authorised by the Chief Parliamentary Counsel 389I Function of intermediaries (1) The function of an intermediary is— (a) to communicate or explain to a witness for whom an intermediary is appointed, questions put to the witness to the extent necessary to enable them to be understood by the witness; and (b) to communicate or explain to a person asking questions of a witness for whom an intermediary is appointed, the answers given by the witness in reply to the extent necessary to enable them to be understood by the person. (2) An intermediary is an officer of the court and has a duty to act impartially when assisting communication with the witness. 389J Appointment of intermediaries (1) A court may appoint an intermediary for a witness from the panel established under this Division. Notes 1 Section 337(1) enables this appointment to be made by the court on the application of a party or on its own motion. 2 Section 337(2) provides that this appointment may be varied or revoked. (2) An application for a court to appoint an intermediary may be made orally or in writing. (3) A court must not appoint an intermediary for a witness if the court is satisfied that the witness— -- 26 of 38 -- Part 4—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 25 Authorised by the Chief Parliamentary Counsel (a) is aware of the right of the witness to make an application for an intermediary to be appointed; and (b) is able and wishes to give evidence in the criminal proceeding without the assistance of an intermediary. (4) A court must not appoint a person as an intermediary for a witness if the person— (a) is a relative, friend or acquaintance of the witness or the accused; or (b) has assisted the witness (other than as an intermediary) or the accused in a professional capacity; or (c) is a party or potential witness (other than by reason of the person's role as an intermediary) in the relevant proceeding. 389K Witness to give evidence in presence of intermediary (1) In a proceeding in which an intermediary has been appointed, the evidence of the witness must be given in the presence of the intermediary. (2) Subject to any direction of the court and rules of court, the evidence of the witness given in the presence of the intermediary must be given in circumstances in which— (a) the court and any legal practitioner appearing in the proceeding are able to see and hear the witness giving evidence and to communicate with the intermediary; and -- 27 of 38 -- Part 4—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 26 Authorised by the Chief Parliamentary Counsel (b) the jury (if any) is able to see and hear the witness giving evidence (including any assistance given by the intermediary), other than evidence given in accordance with an arrangement made under section 360(a) as directed by the court. (3) The provisions of Division 2 (other than section 22(2)) of Part 2.1 of the Evidence Act 2008 which apply to interpreters are taken to apply to an intermediary. Note Section 22(2) of the Evidence Act 2008 requires interpreters to take an oath or make an affirmation in accordance with a form in Schedule 1 to that Act or a similar form. (4) A person must not act as an intermediary in a particular proceeding unless the person has taken an oath or made an affirmation in the prescribed form.". Division 2—Consequential and statute law revision amendments 26 Definitions In section 3 of the Criminal Procedure Act 2009 insert the following definitions— "ground rules hearing means a hearing conducted in accordance with Division 1 of Part 8.2A; intermediary means a person appointed under section 389J;". -- 28 of 38 -- Part 4—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 27 Authorised by the Chief Parliamentary Counsel 27 Special rules applicable to sexual offences After section 133(3)(c) of the Criminal Procedure Act 2009 insert— "(ca) a person who is appointed as an intermediary for the complainant;". 28 When accused is not legally represented In section 357(5) of the Criminal Procedure Act 2009, for "If" substitute "Subject to any direction given under section 389E(f), if". 29 Application of this Division In section 366(1)(d) of the Criminal Procedure Act 2009, for "paragraph (a), (b) or (c)" substitute "paragraph (a), (ab) or (b)". 30 Regulations In section 420(1) of the Criminal Procedure Act 2009— (a) in paragraph (c)— (i) after "witnesses" insert ", intermediaries"; (ii) in subparagraph (ii), after "Magistrates' Court" insert "and Children's Court"; (b) for paragraph (ea) substitute— "(ea) the making, use (including for training and evaluation purposes), possession, copying, storage, access to and destruction of an audio or audiovisual recording referred to in Chapter 4 or 5 or Part 8.2 or made in a proceeding in which an intermediary is appointed under Part 8.2A or any copy or transcript of such an audio or audiovisual recording.". -- 29 of 38 -- Part 4—Amendment of Criminal Procedure Act 2009 Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 28 Authorised by the Chief Parliamentary Counsel 31 New section 451 inserted At the end of Chapter 10 of the Criminal Procedure Act 2009 insert— "451 Transitional provision—Justice Legislation Amendment (Victims) Act 2018—Part 8.2A Part 8.2A as inserted by section 25 of the Justice Legislation Amendment (Victims) Act 2018 applies to a criminal proceeding commenced, or in which the accused is committed for trial, on or after the day on which that section comes into operation, irrespective of when the offence is alleged to have been committed.". -- 30 of 38 -- Part 5—Amendment of Sentencing Act 1991 Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 29 Authorised by the Chief Parliamentary Counsel Part 5—Amendment of Sentencing Act 1991 32 Sentencing guidelines At the foot of section 5(2) of the Sentencing Act 1991 insert— "Note See section 5AA in relation to the court having regard to previous good character or lack of previous findings of guilt or convictions in certain circumstances.". 33 New section 5AA inserted After section 5 of the Sentencing Act 1991 insert— "5AA Court not to have regard to previous good character or lack of previous findings of guilt or convictions in certain circumstances (1) Despite section 5(2), in sentencing an offender for a child sexual offence, a court must not have regard to the offender's previous good character or lack of previous findings of guilt or convictions if the court is satisfied the offender's previous good character or lack of previous findings of guilt or convictions was of assistance to the offender in the commission of the offence. (2) Subsection (1) does not apply to an offender who is under the age of 18 years at the time of the commission of the offence. (3) In this section— child sexual offence means a sexual offence within the meaning of section 3 of the Criminal Procedure Act 2009, committed in relation to a person under the age of 18 years.". -- 31 of 38 -- Part 5—Amendment of Sentencing Act 1991 Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 30 Authorised by the Chief Parliamentary Counsel 34 New section 164 inserted At the end of Part 12 of the Sentencing Act 1991 insert— "164 Transitional—Justice Legislation Amendment (Victims) Act 2018 (1) The amendments made to this Act by sections 32 and 33 of the Justice Legislation Amendment (Victims) Act 2018 apply to the sentencing of an offender on or after the commencement of those sections, irrespective of when the offence was committed. (2) The amendment made to this Act by section 35 of the Justice Legislation Amendment (Victims) Act 2018 applies to a sentence imposed after the commencement of that section, irrespective of when the offence was committed. (3) For the purpose of this section, 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.". 35 Schedule 1 amended After clause 1(c) of Schedule 1 to the Sentencing Act 1991 insert— "(ca) an offence, committed on or after 1 April 1959 and before 8 November 1967, against section 68(3) of the Crimes Act 1958 as then in force, consisting of an indecent assault upon a male person;". -- 32 of 38 -- Part 6—Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 31 Authorised by the Chief Parliamentary Counsel Part 6—Amendment of Serious Sex Offenders (Detention and Supervision) Act 2009 36 Schedule 1 amended In item 35 of Schedule 1 to the Serious Sex Offenders (Detention and Supervision) Act 2009, for "(c)," substitute "(c), (ca),". -- 33 of 38 -- Part 7—Amendment of Victims of Crime Assistance Act 1996 Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 32 Authorised by the Chief Parliamentary Counsel Part 7—Amendment of Victims of Crime Assistance Act 1996 37 Time for making application (1) After section 29(1) of the Victims of Crime Assistance Act 1996 insert— "(1A) Despite subsection (1), an application may be made by a victim at any time after the occurrence of an act of violence consisting of physical abuse or sexual abuse if the act occurred when the victim was under the age of 18 years.". (2) After section 29(4) of the Victims of Crime Assistance Act 1996 insert— "(5) In this section— sexual abuse means— (a) taking part in a sexual act within the meaning of section 35C of the Crimes Act 1958; or (b) an activity that is sexual within the meaning of section 35D of that Act.". 38 New section 82 inserted After section 81 of the Victims of Crime Assistance Act 1996 insert— "82 Transitional provision—Justice Legislation Amendment (Victims) Act 2018 Section 29 as in force on or after the commencement of section 37 of the Justice Legislation Amendment (Victims) Act 2018 applies to an application that is in existence but not decided immediately before that commencement.". -- 34 of 38 -- Part 8—Amendment of Family Violence Protection Act 2008 Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 33 Authorised by the Chief Parliamentary Counsel Part 8—Amendment of Family Violence Protection Act 2008 39 Information sharing entity authorised to share confidential information despite specified provisions (1) In the heading to section 144QC of the Family Violence Protection Act 2008, after "sharing entity" insert "or Central Information Point". (2) In section 144QC of the Family Violence Protection Act 2008, after "sharing entity" insert "or the Central Information Point". 40 Procedural requirements for person directed to a police station, or person apprehended and detained In section 17(7) of the Family Violence Protection Act 2008, after "property of the affected family member" insert "or of the protected person". 41 Schedule 1 amended For item 8 of Schedule 1 to the Family Violence Protection Act 2008 substitute— "8 Section 178 of the Fines Reform Act 2014". -- 35 of 38 -- Part 9—Statute law revision Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 34 Authorised by the Chief Parliamentary Counsel Part 9—Statute law revision 42 Crimes Act 1958 In the heading to section 629 of the Crimes Act 1958 (where first occurring), for "629" substitute "628A". 43 Jury Directions Act 2015 In the note at the foot of section 46(2) to the Jury Directions Act 2015, for "section 36" substitute "Section 36". -- 36 of 38 -- Part 10—Repeal of amending Act Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 35 Authorised by the Chief Parliamentary Counsel Part 10—Repeal of amending Act 44 Repeal of amending Act This Act is repealed on 1 July 2019. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═════════════ -- 37 of 38 -- Endnotes Justice Legislation Amendment (Victims) Act 2018 No. 5 of 2018 36 Authorised by the Chief Parliamentary Counsel Endnotes 1 General information See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. † Minister's second reading speech— Legislative Assembly: 13 December 2017 Legislative Council: 8 February 2018 The long title for the Bill for this Act was "A Bill for an Act to amend the Children, Youth and Families Act 2005, the Crimes Act 1958, the Criminal Procedure Act 2009, the Family Violence Protection Act 2008, the Judicial Proceedings Reports Act 1958, the Jury Directions Act 2015, the Sentencing Act 1991, the Serious Sex Offenders (Detention and Supervision) Act 2009, the Summary Offences Act 1966, the Victims' Charter Act 2006 and the Victims of Crime Assistance Act 1996 and for other purposes." -- 38 of 38 --