Crimes (Sexual Offences) (Further Amendment) Act 2006
i
Crimes (Sexual Offences) (Further Amendment)
Act 2006
Act No. 76/2006
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY 1
1. Purpose 1
2. Commencement 2
PART 2—AMENDMENT OF CRIMES ACT 1958 3
3. Jury warnings 3
4. New section 607 inserted 5
607. Transitional provision—Crimes (Sexual Offences)
(Further Amendment) Act 2006 5
PART 3—AMENDMENT OF EVIDENCE ACT 1958 6
5. Section 37C amended 6
6. New section 37CAA inserted 6
37CAA. Alternative arrangements for giving evidence by
certain complainants in certain proceedings 6
7. Alternative arrangements for giving evidence in certain
proceedings by child complainants or complainants with a
cognitive impairment 9
8. New section 159 inserted 9
159. Transitional provision—Crimes (Sexual Offences)
(Further Amendment) Act 2006 9
PART 4—AMENDMENT OF MAGISTRATES' COURT
ACT 1989 10
9. New section 4R inserted 10
4R. Sexual Offences List 10
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Section Page
ii
PART 5—AMENDMENT OF CRIMES (SEXUAL OFFENCES)
ACT 2006 11
10. New sections 19A and 19B inserted 11
19A. New section 606A inserted 11
11. New section 23A inserted 12
23A. New section 33A inserted 12
12. New section 38A inserted 13
38A. New section 158A inserted 13
13. New section 41A inserted 14
41A. New clause 35A inserted in Schedule 8 14
14. Amendment of Sentencing Act 1991 14
15. Amendment of Serious Sex Offenders Monitoring Act 2005 15
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ENDNOTES 16
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1
Crimes (Sexual Offences) (Further
Amendment) Act 2006 †
[Assented to 10 October 2006]
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1. Purpose
The main purposes of this Act are to amend—
(a) the Crimes Act 1958 to further provide for
the use of jury warnings in sexual offence
cases where there has been a delay in
reporting the alleged offence; and
Victoria
No. 76 of 2006
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Part 1—Preliminary
Crimes (Sexual Offences) (Further Amendment) Act 2006
Act No. 76/2006
2
(b) the Evidence Act 1958 to further provide for
alternative arrangements for the giving of
evidence in proceedings that relate to a
charge for a sexual offence; and
(c) the Magistrates' Court Act 1989 to provide
for a Sexual Offences List; and
(d) the Crimes (Sexual Offences) Act 2006 to
provide for transitional arrangements relating
to that Act.
2. Commencement
(1) This Part comes into operation on the day after the
day on which this Act receives the Royal Assent.
(2) Part 3 comes into operation immediately after the
coming into operation of section 38 of the Crimes
(Sexual Offences) Act 2006.
(3) The remaining provisions of this Act come into
operation on a day or days to be proclaimed.
(4) If a provision referred to in sub-section (3) does
not come into operation before 1 December 2006,
it comes into operation on that day.
__________________
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Part 2—Amendment of Crimes Act 1958
Crimes (Sexual Offences) (Further Amendment) Act 2006
Act No. 76/2006
3
PART 2—AMENDMENT OF CRIMES ACT 1958
3. Jury warnings
(1) For section 61(1)(b) of the Crimes Act 1958
substitute—
"(b) if evidence is given or a question is asked of
a witness or a statement is made in the
course of an address on evidence which
tends to suggest that there was delay in
making a complaint about the alleged
offence by the person against whom the
offence is alleged to have been committed,
the judge—
(i) must inform the jury that there may be
good reasons why a victim of a sexual
assault may delay or hesitate in
complaining about it; and
(ii) must not warn, or suggest in any way
to, the jury that the credibility of the
complainant is affected by the delay
unless, on the application of the
accused, the judge is satisfied that there
is sufficient evidence tending to suggest
that the credibility of the complainant is
so affected to justify the giving of such
a warning; and
(iii) must not warn, or suggest in any way
to, the jury that it would be dangerous
or unsafe to find the accused guilty
because of the delay.".
See:
Act No.
6231.
Reprint No. 18
as at
1 July 2005
and
amending
Act Nos
16/2004,
18/2005,
56/2005,
66/2005,
77/2005,
93/2005,
97/2005,
2/2006, 6/2006,
14/2006,
23/2006 and
27/2006.
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Part 2—Amendment of Crimes Act 1958
Crimes (Sexual Offences) (Further Amendment) Act 2006
Act No. 76/2006
4
(2) After section 61(1) of the Crimes Act 1958
insert—
"(1A) If the judge, on the application of the
accused in a proceeding to which sub-section
(1) applies, is satisfied that the accused has
suffered a significant forensic disadvantage
because of the consequences of the delay in
making a complaint about the alleged
offence by the person against whom the
offence is alleged to have been committed,
the judge must, in any terms that the judge
considers appropriate having regard to the
circumstances of the case—
(a) inform the jury of the nature of the
forensic disadvantage suffered by the
accused; and
(b) instruct the jury to take that
disadvantage into consideration.
(1B) Despite sub-section (1A), a judge must not
warn, or suggest in any way to, the jury that
it would be dangerous or unsafe to find the
accused guilty because of the delay.
(1C) For the purposes of sub-section (1A), the
passage of time alone is not to be taken to
cause a significant forensic disadvantage.
(1D) Nothing in sub-section (1A) requires a judge
to give a warning referred to in that sub-
section if there is no reason to do so in the
particular proceeding.
(1E) A judge must not give a warning referred to
in sub-section (1A) or a warning to the effect
of a warning referred to in sub-section (1A)
except in accordance with this section and
any rule of law to the contrary is hereby
abrogated.
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Part 2—Amendment of Crimes Act 1958
Crimes (Sexual Offences) (Further Amendment) Act 2006
Act No. 76/2006
5
(1F) Nothing in sub-sections (1A) to (1E) affects
the power of a judge to give any other
warning to, or to otherwise inform, the
jury.".
4. New section 607 inserted
After section 606A of the Crimes Act 1958
insert—
"607. Transitional provision—Crimes (Sexual
Offences) (Further Amendment) Act 2006
The amendments made to this Act by
section 3 of the Crimes (Sexual Offences)
(Further Amendment) Act 2006 apply to
any proceeding that commences on or after
the commencement of that section,
irrespective of when the offence to which the
proceeding relates is alleged to have been
committed.".
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Part 3—Amendment of Evidence Act 1958
Crimes (Sexual Offences) (Further Amendment) Act 2006
Act No. 76/2006
6
PART 3—AMENDMENT OF EVIDENCE ACT 1958
5. Section 37C amended
For section 37C(1) of the Evidence Act 1958
substitute—
"(1) This section does not apply to a witness who
is a complainant in relation to a charge for a
sexual offence.
Note 1: Section 37CAA provides for alternative
arrangements for the giving of evidence by a
complainant (other than a complainant who is
a child or a person with a cognitive
impairment) in legal proceedings that relate to
a charge for a sexual offence.
Note 2: Section 41E provides for alternative
arrangements for the giving of evidence by a
complainant who is a child or a person with a
cognitive impairment in legal proceedings that
relate to a charge for a sexual offence.".
6. New section 37CAA inserted
After section 37C of the Evidence Act 1958
insert—
"37CAA. Alternative arrangements for giving
evidence by certain complainants in
certain proceedings
(1) Subject to this section, in a legal proceeding
that relates (wholly or partly) to a charge for
a sexual offence, the court must direct that
any of the following arrangements be made
for the giving of evidence by a complainant
(other than a complainant who is a child or a
person with a cognitive impairment)—
(a) permitting the evidence to be given
from a place other than the courtroom
by means of closed-circuit television or
other facilities that enable
See:
Act No.
6246.
Reprint No. 14
as at
6 June 2002
and
amending
Act Nos
20/2004,
60/2004 (as
amended by
No. 18/2005),
72/2004,
108/2004,
15/2005,
18/2005,
75/2005,
97/2005,
2/2006 and
14/2006.
LawToday:
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dpc.vic.
gov.au
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Part 3—Amendment of Evidence Act 1958
Crimes (Sexual Offences) (Further Amendment) Act 2006
Act No. 76/2006
7
communication between that place and
the courtroom;
(b) using screens to remove the defendant
from the witness' direct line of vision;
(c) permitting a person chosen by the
witness and approved by the court for
this purpose, to be beside the witness
while he or she is giving evidence for
the purpose of providing emotional
support to him or her.
(2) The court must direct that the arrangement
referred to in sub-section (1)(a) be made
unless—
(a) the court is satisfied that the
complainant—
(i) is aware of his or her right to give
evidence in accordance with the
arrangement referred to in sub-
section (1)(a); and
(ii) is able and wishes to give
evidence in the courtroom; and
(b) the court, on the application of the
prosecution, determines not to direct
that the arrangement referred to in sub-
section (1)(a) be made.
(3) The court must direct that any evidence
given by a complainant in accordance with
the arrangement referred to in sub-section
(1)(a) is recorded.
(4) If a court directs that the arrangement
referred to in sub-section (1)(a) be made, the
court may make any order it considers
appropriate to enable the complainant to
view any place or thing or identify any
person or thing.
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Part 3—Amendment of Evidence Act 1958
Crimes (Sexual Offences) (Further Amendment) Act 2006
Act No. 76/2006
8
(5) If the complainant is giving evidence in the
courtroom, the court must direct that the
arrangement referred to in sub-section (1)(b)
be made unless it is satisfied that the
complainant—
(a) is aware of his or her right to give
evidence in accordance with the
arrangement referred to in sub-section
(1)(b); and
(b) does not wish a screen to be used to
remove the defendant from his or her
direct line of vision.
(6) The court must direct that the arrangement
referred to in sub-section (1)(c) be made
unless the court is satisfied that the
complainant—
(a) is aware of his or her right to give
evidence in accordance with the
arrangement referred to in sub-section
(1)(c); and
(b) does not want a person to be beside him
or her while he or she is giving
evidence for the purpose of providing
emotional support to him or her.
(7) If a court directs that alternative
arrangements be made for the giving of
evidence by a witness, the judge must warn
the jury not to draw any inference adverse to
the defendant or give the evidence any
greater or lesser weight because of the
making of those arrangements.
(8) Any place outside the courtroom where a
witness is permitted to give evidence under
this section is to be taken to be part of the
courtroom while the witness is there for the
purpose of giving evidence.
s. 6
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Part 3—Amendment of Evidence Act 1958
Crimes (Sexual Offences) (Further Amendment) Act 2006
Act No. 76/2006
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(9) The court may at any time in the course of
the proceeding vary or revoke a direction
made under this section either of its own
motion or on the application of a party to the
proceeding.".
7. Alternative arrangements for giving evidence in
certain proceedings by child complainants or
complainants with a cognitive impairment
(1) For the heading to section 41E of the Evidence
Act 1958 substitute—
"Alternative arrangements for giving evidence
in certain proceedings by child complainants or
complainants with a cognitive impairment".
(2) In section 41E of the Evidence Act 1958—
(a) in sub-section (1) omit "alternative";
(b) in sub-section (2) omit "alternative".
8. New section 159 inserted
After section 158A of the Evidence Act 1958
insert—
"159. Transitional provision—Crimes (Sexual
Offences) (Further Amendment) Act 2006
The amendments made to this Act by
sections 5, 6 and 7 of the Crimes (Sexual
Offences) (Further Amendment) Act 2006
apply to any proceeding that commences on
or after the commencement of those
provisions, irrespective of when the offence
to which the proceeding relates is alleged to
have been committed.".
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Part 4—Amendment of Magistrates' Court Act 1989
Crimes (Sexual Offences) (Further Amendment) Act 2006
Act No. 76/2006
10
PART 4—AMENDMENT OF MAGISTRATES' COURT
ACT 1989
9. New section 4R inserted
Before section 5 of the Magistrates' Court
Act 1989 insert—
"4R. Sexual Offences List
(1) A Sexual Offences List is established.
(2) The Sexual Offences List consists of any
proceeding that relates (wholly or partly) to a
charge for a sexual offence.
(3) The operation and administration of the
Sexual Offences List is at the direction of the
Chief Magistrate.
(4) The Chief Magistrate, under section 16A,
may issue practice directions, statements or
notes for the Court in relation to the Sexual
Offences List.
(5) Nothing in this section takes away from, or
limits, a discretion or power conferred on the
Chief Magistrate by or under this Act.".
__________________
See:
Act No.
51/1989.
Reprint No. 11
as at 1 August
2005 and
amending Act
Nos 77/2004,
16/2005,
18/2005,
19/2005,
45/2005,
62/2005,
69/2005,
78/2005,
80/2005,
87/2005,
93/2005,
2/2006, 9/2006,
12/2006,
32/2006 and
44/2006.
LawToday:
www.dms.
dpc.vic.
gov.au
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Part 5—Amendment of Crimes (Sexual Offences) Act 2006
Crimes (Sexual Offences) (Further Amendment) Act 2006
Act No. 76/2006
11
PART 5—AMENDMENT OF CRIMES (SEXUAL OFFENCES)
ACT 2006
10. New sections 19A and 19B inserted
After section 19 of the Crimes (Sexual Offences)
Act 2006 insert—
'19A. New section 606A inserted
After section 606 of the Crimes Act 1958
insert—
"606A. Transitional provision—Crimes
(Sexual Offences) Act 2006
(1) An amendment made to this Act by a
provision of section 4 or 5 of the
Crimes (Sexual Offences) Act 2006
applies to any trial that commences on
or after the commencement of that
provision, irrespective of when the
offence to which the trial relates is
alleged to have been committed.
(2) An amendment made to this Act by a
provision of section 6, 8, 9, 10, 11, 12
or 17(4) or (5) of the Crimes (Sexual
Offences) Act 2006 applies only to
offences alleged to have been
committed on or after the
commencement of that provision.
(3) For the purposes of sub-section (1), a
trial commences on arraignment of the
accused in accordance with
Subdivision (12) of Division 1 of
Part III.
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Part 5—Amendment of Crimes (Sexual Offences) Act 2006
Crimes (Sexual Offences) (Further Amendment) Act 2006
Act No. 76/2006
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(4) For the purposes of sub-section (2), if
an offence is alleged to have been
committed between two dates, one
before and one after the
commencement of a provision of the
Crimes (Sexual Offences) Act 2006,
the offence is alleged to have been
committed before the commencement
of that provision.".
19B. Schedule 8 amended
After clause 12 of Schedule 8 to the
Crimes Act 1958 insert—
"12A. An offence that, at the time it was
committed, was a forensic sample
offence.".'.
11. New section 23A inserted
After section 23 of the Crimes (Sexual Offences)
Act 2006 insert—
'23A. New section 33A inserted
After section 33 of the Crimes (Criminal
Trials) Act 1999 insert—
"33A. Transitional provision—Crimes
(Sexual Offences) Act 2006
(1) An amendment made to this Act by a
provision of section 21 (other than sub-
section (3)) of the Crimes (Sexual
Offences) Act 2006 applies only to
offences alleged to have been
committed on or after the
commencement of that provision.
(2) An amendment made to this Act by a
provision of section 21(3) or 22 of the
Crimes (Sexual Offences) Act 2006
applies to any trial that commences on
or after the commencement of that
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Part 5—Amendment of Crimes (Sexual Offences) Act 2006
Crimes (Sexual Offences) (Further Amendment) Act 2006
Act No. 76/2006
13
provision, irrespective of when the
offence to which the trial relates is
alleged to have been committed.
(3) For the purposes of sub-section (1), if
an offence is alleged to have been
committed between two dates, one
before and one after the
commencement of a provision of the
Crimes (Sexual Offences) Act 2006,
the offence is alleged to have been
committed before the commencement
of that provision.
(4) For the purposes of sub-section (2), a
trial commences on arraignment of the
accused in accordance with
Subdivision (12) of Division 1 of
Part III.".'.
12. New section 38A inserted
After section 38 of the Crimes (Sexual Offences)
Act 2006 insert—
'38A. New section 158A inserted
After section 158 of the Evidence Act 1958
insert—
"158A. Transitional provision—Crimes
(Sexual Offences) Act 2006
(1) An amendment made to this Act by a
provision of section 25, 29, 30, 33 or 37
of the Crimes (Sexual Offences) Act
2006 applies to—
(a) any legal proceeding commenced
before the commencement of that
provision if at the commencement
of that provision—
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Part 5—Amendment of Crimes (Sexual Offences) Act 2006
Crimes (Sexual Offences) (Further Amendment) Act 2006
Act No. 76/2006
14
(i) the hearing of the proceeding
had not commenced; or
(ii) no evidence had been given
on the hearing of the
proceeding; and
(b) any legal proceeding that
commences on or after the
commencement of that provision.
(2) An amendment made to this Act by a
provision of section 27, 34 or 38 of the
Crimes (Sexual Offences) Act 2006
applies to any legal proceeding that
commences on or after the
commencement of that provision.".'.
13. New section 41A inserted
After section 41 of the Crimes (Sexual Offences)
Act 2006 insert—
'41A. New clause 35A inserted in Schedule 8
After clause 35 of Schedule 8 to the
Magistrates' Court Act 1989 insert—
"35A. An amendment made to this Act by a provision
of section 40 or 41 of the Crimes (Sexual
Offences) Act 2006 applies only to a criminal
proceeding commenced on or after the
commencement of that provision.".'.
14. Amendment of Sentencing Act 1991
(1) For section 43(1) of the Crimes (Sexual
Offences) Act 2006 substitute—
'(1) In section 3(1) of the Sentencing Act 1991,
in the definition of "serious offence"—
(a) in paragraph (c)(viii), for "(sexual
relationship with" substitute
"(persistent sexual abuse of";
s. 13
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Part 5—Amendment of Crimes (Sexual Offences) Act 2006
Crimes (Sexual Offences) (Further Amendment) Act 2006
Act No. 76/2006
15
(b) after paragraph (d) insert—
"(da) an offence that, at the time it was
committed, was a serious offence;
or";
(c) in paragraph (f), for "paragraph (a), (b),
(c), (d) or (e)" substitute "any of the
preceding paragraphs".'.
(2) In section 43(2) of the Crimes (Sexual Offences)
Act 2006—
(a) in paragraph (e), for ' "a child".' substitute
' "a child";';
(b) after paragraph (e) insert—
'(f) after clause 1(df) insert—
"(dg) an offence that, at the time it was
committed, was an offence to
which this clause applied;";'.
15. Amendment of Serious Sex Offenders Monitoring
Act 2005
In section 44 of the Crimes (Sexual Offences)
Act 2006—
(a) in paragraph (h), for "repealed." substitute
"repealed;";
(b) after paragraph (h) insert—
'(i) after item 39 insert—
"39A. An offence that, at the time it was
committed, was an offence listed
in this Schedule.".'.
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Crimes (Sexual Offences) (Further Amendment) Act 2006
Act No. 76/2006
16
ENDNOTES
† Minister's second reading speech—
Legislative Assembly: 10 August 2006
Legislative Council: 3 October 2006
The long title for the Bill for this Act was "to amend the Crimes Act
1958 in relation to jury warnings, the Evidence Act 1958 in relation to
the giving of evidence in proceedings that relate to a charge for a sexual
offence, the Magistrates' Court Act 1989 to provide for a Sexual
Offences List and the Crimes (Sexual Offences) Act 2006 in relation to
transitional arrangements and for other purposes."
Endnotes
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