Crimes Legislation Further Amendment Act 2017

Authorised by the Chief Parliamentary Counsel Authorised Version i Crimes Legislation Further Amendment Act 2017 No. 6 of 2017 TABLE OF PROVISIONS Section Page Part 1—Preliminary 1 1 Purposes 1 2 Commencement 2 Part 2—Amendment of the Criminal Procedure Act 2009 3 3 New section 232A inserted 3 4 Accused entitled to respond after close of prosecution case 4 5 Note inserted 5 6 Summary offence related to indictable offence 5 7 Unrelated summary offence 6 8 Orders etc. on successful appeal 6 9 New section 447 inserted 6 Part 3—Amendment of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 7 10 Procedure on investigation under Part 2 7 11 Procedure at special hearings under Part 3 7 12 Transitional provision inserted 7 Part 4—Amendment of the Crimes Act 1958 8 13 Attempt to commit certain sexual offences 8 14 New section 631 inserted 8 Part 5—Amendment of the Jury Directions Act 2015 10 15 Application of Division 1 of Part 5 10 16 Application of Division 2 of Part 5 10 17 New clause 3 of Schedule 1 inserted 10 Part 6—Repeal of amending Act 11 18 Repeal of amending Act 11 ═══════════════ Endnotes 12 1 General information 12 -- 1 of 13 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Crimes Legislation Further Amendment Act 2017† No. 6 of 2017 [Assented to 15 March 2017] The Parliament of Victoria enacts: Part 1—Preliminary 1 Purposes The purposes of this Act are— (a) to amend the Criminal Procedure Act 2009— (i) to enable expert evidence to be given concurrently or consecutively in a criminal trial; and Victoria -- 2 of 13 -- Part 1—Preliminary Crimes Legislation Further Amendment Act 2017 No. 6 of 2017 2 Authorised by the Chief Parliamentary Counsel (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 the fault element for an offence of attempt to commit certain sexual offences; and (d) to amend the Jury Directions Act 2015 to ensure that Part 5 of that Act also applies to a charge for an offence of conspiracy, incitement or attempt to commit certain sexual offences. 2 Commencement (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. -- 3 of 13 -- Part 2—Amendment of the Criminal Procedure Act 2009 Crimes Legislation Further Amendment Act 2017 No. 6 of 2017 3 Authorised by the Chief Parliamentary Counsel Part 2—Amendment of the Criminal Procedure Act 2009 3 New section 232A inserted After section 232 of the Criminal Procedure Act 2009 insert— "232A Trial judge may give directions about the giving of concurrent or consecutive evidence by expert witnesses (1) This section applies despite sections 226 and 231(2). (2) The trial judge, with the consent of the prosecution and the accused, may direct that 2 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 has been 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 re-examined in a particular manner or sequence, including by putting to each expert witness in turn each question relevant to one matter or issue at a time; or -- 4 of 13 -- Part 2—Amendment of the Criminal Procedure Act 2009 Crimes Legislation Further Amendment Act 2017 No. 6 of 2017 4 Authorised by the Chief Parliamentary Counsel (e) be permitted to ask questions of any other 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 case management, evidence or witnesses, including expert witnesses.". 4 Accused 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 an accused, 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.". -- 5 of 13 -- Part 2—Amendment of the Criminal Procedure Act 2009 Crimes Legislation Further Amendment Act 2017 No. 6 of 2017 5 Authorised by the Chief Parliamentary Counsel 5 Note 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.". 6 Summary 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 Act 2009— (a) in paragraph (a), for "the trial" substitute "a trial"; (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.". -- 6 of 13 -- Part 2—Amendment of the Criminal Procedure Act 2009 Crimes Legislation Further Amendment Act 2017 No. 6 of 2017 6 Authorised by the Chief Parliamentary Counsel 7 Unrelated 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.". 8 Orders 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". 9 New section 447 inserted After section 446 of the Criminal Procedure Act 2009 insert— "447 Transitional provision—Crimes Legislation Further Amendment Act 2017 This Act as amended by sections 3, 4 and 5 of the Crimes Legislation Further Amendment Act 2017 applies to a trial that commences on or after the day on which those sections come into operation.". -- 7 of 13 -- Part 3—Amendment of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Crimes Legislation Further Amendment Act 2017 No. 6 of 2017 7 Authorised by the Chief Parliamentary Counsel Part 3—Amendment of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 10 Procedure on investigation under Part 2 After section 11(1A) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert— "(1B) Section 232A of the Criminal Procedure Act 2009 applies to an investigation as if the investigation were a trial.". 11 Procedure 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. That section 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.". 12 Transitional provision inserted In Schedule 3 to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after clause 15 insert— "16 Transitional provision—Crimes Legislation Further Amendment Act 2017 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.". -- 8 of 13 -- Part 4—Amendment of the Crimes Act 1958 Crimes Legislation Further Amendment Act 2017 No. 6 of 2017 8 Authorised by the Chief Parliamentary Counsel Part 4—Amendment of the Crimes Act 1958 13 Attempt 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 the case 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 of the element of the offence referred to in section 38(1)(c), 39(1)(c), 40(1)(d) or 41(1)(d), it must be proved that at the time of 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).". 14 New section 631 inserted At the end of Part 7 of the Crimes Act 1958 insert— "631 Transitional provision—Crimes Legislation Further Amendment Act 2017 (1) The amendments made to this Act by Part 4 of the Crimes Legislation Further Amendment Act 2017 apply only to offences alleged to have been committed on or after the commencement of that Part. -- 9 of 13 -- Part 4—Amendment of the Crimes Act 1958 Crimes Legislation Further Amendment Act 2017 No. 6 of 2017 9 Authorised by the Chief Parliamentary Counsel (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.". -- 10 of 13 -- Part 5—Amendment of the Jury Directions Act 2015 Crimes Legislation Further Amendment Act 2017 No. 6 of 2017 10 Authorised by the Chief Parliamentary Counsel Part 5—Amendment of the Jury Directions Act 2015 15 Application of Division 1 of Part 5 In section 45 of the Jury Directions Act 2015, after "1958" insert "or a charge for an offence of conspiracy, incitement or attempt to commit an offence against any of those provisions". 16 Application of Division 2 of Part 5 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". 17 New clause 3 of Schedule 1 inserted At the end of Schedule 1 to the Jury Directions Act 2015 insert— "3 Crimes Legislation Further Amendment Act 2017 The amendments made to this Act by Part 5 of the Crimes Legislation Further Amendment Act 2017 apply to a trial that commences (within the meaning of section 210 of the Criminal Procedure Act 2009) on or after the day on which Part 5 of the Crimes Legislation Further Amendment Act 2017 comes into operation.". -- 11 of 13 -- Part 6—Repeal of amending Act Crimes Legislation Further Amendment Act 2017 No. 6 of 2017 11 Authorised by the Chief Parliamentary Counsel Part 6—Repeal of amending Act 18 Repeal of amending Act This Act is repealed on 1 April 2018. 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). ═══════════════ -- 12 of 13 -- Endnotes Crimes Legislation Further Amendment Act 2017 No. 6 of 2017 12 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: 26 October 2016 Legislative Council: 24 November 2016 The long title for the Bill for this Act was "A Bill for an Act to make miscellaneous amendments to the Criminal Procedure Act 2009, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the Crimes Act 1958 and the Jury Directions Act 2015 and for other purposes." -- 13 of 13 --