Crimes (Questioning of Suspects) Act 2000

i Crimes (Questioning of Suspects) Act 2000 Act No. 86/2000 TABLE OF PROVISIONS Section Page 1. Purpose 1 2. Commencement 1 3. Principal Act 2 4. Questioning or investigation of person already held for another matter 2 5. Right to communicate with friend, relative and legal practitioner 9 6. Video-recording of confessions and admissions 9 7. New section 593A inserted in Principal Act 10 593A. Transitional provision—Crimes (Questioning of Suspects) Act 2000 10 8. Consequential amendments 10 ═══════════════ ENDNOTES 11 -- 1 of 12 -- 1 Crimes (Questioning of Suspects) Act 2000† [Assented to 5 December 2000] The Parliament of Victoria enacts as follows: 1. Purpose The main purpose of this Act is to amend the Crimes Act 1958 so as to make further provision for the questioning or investigation of certain persons who are suspected of having committed an offence. 2. Commencement This Act comes into operation on the day after the day on which it receives the Royal Assent. Victoria No. 86 of 2000 -- 2 of 12 -- Act No. 86/2000 Crimes (Questioning of Suspects) Act 2000 2 3. Principal Act In this Act, the Crimes Act 1958 is called the Principal Act. 4. Questioning or investigation of person already held for another matter (1) In section 464B(1) of the Principal Act— (a) omit "under the age of 17 years"; (b) for paragraph (a) substitute— "(a) who is— (i) held in a prison or police gaol; or (ii) a forensic resident or a security resident within the meaning of the Intellectually Disabled Persons' Services Act 1986; or (iii) a forensic patient or a security patient within the meaning of the Mental Health Act 1986; or (iv) detained under section 93 of the Sentencing Act 1991 in an approved mental health service within the meaning of the Mental Health Act 1986 as an involuntary patient or security patient within the meaning of that Act; and"; (c) in paragraph (b), after "an offence" insert "(being, in the case of an application in respect of a child, an indictable offence)". s. 3 See: Act No. 6231. Reprint No. 15 as at 1 September 1999 and amending Act No. 26/1999. LawToday: www.dms. dpc.vic. gov. au -- 3 of 12 -- Act No. 86/2000 Crimes (Questioning of Suspects) Act 2000 3 (2) In section 464B(2)(c) of the Principal Act— (a) for "being held" substitute "who is the subject of the application"; (b) for sub-paragraph (ii) substitute— "(ii) to the person in charge of the place where the person is being held or detained.". (3) In section 464B(3) of the Principal Act, for "being held in a prison or police gaol" substitute "who is the subject of the application". (4) In section 464B of the Principal Act, for sub- section (5) substitute— "(4A) The Magistrates' Court or the Children's Court (as the case may be) must not hear or determine an application under sub-section (1) unless the person who is the subject of the application is before the Court. (4B) If the person who is the subject of an application under sub-section (1) is not legally represented in a proceeding on the application, the Magistrates' Court or the Children's Court (as the case may be)— (a) must adjourn the hearing of the proceeding to enable the person to obtain legal representation unless satisfied that the person has had, or has refused to have, legal advice provided to him or her in relation to the application; and (b) must not resume the hearing unless the person is legally represented or the Court is satisfied that he or she has had, or has refused to have, legal advice provided to him or her in relation to the application. s. 4 -- 4 of 12 -- Act No. 86/2000 Crimes (Questioning of Suspects) Act 2000 4 (4C) The Magistrates' Court or the Children's Court (as the case may be) may order Victoria Legal Aid to provide legal assistance (of a kind to which section 26(1) of the Legal Aid Act 1978 applies) to the person who is the subject of an application under sub-section (1) and, despite anything to the contrary in that Act, Victoria Legal Aid must provide legal assistance in accordance with the order. (5) On an application under sub-section (1), the Magistrates' Court or the Children's Court (as the case may be) may, if satisfied that it is in the interests of justice to do so but subject to sub-section (5C), order the transfer of the custody of the person who is the subject of the application to the applicant for the purpose of questioning or investigation for a maximum period of time specified in the order, being a reasonable period within which the questioning or investigation may take place. (5A) In determining what constitutes a reasonable period for the purposes of an order under sub-section (5), the Magistrates' Court or the Children's Court (as the case may be) must have regard to— (a) the matters specified in section 464A(4), with any necessary modifications; and (b) if the person is a child, his or her age. (5B) The Magistrates' Court or the Children's Court (as the case may be), on making an order under sub-section (5), may make any further order that it thinks fit as to where, s. 4 -- 5 of 12 -- Act No. 86/2000 Crimes (Questioning of Suspects) Act 2000 5 and the circumstances under which, the questioning or investigation may take place but it must not order that the questioning or investigation take place somewhere other than the place at which the person who is the subject of the order was held or detained at the time of the application for the order under sub-section (5) unless it is not practicable for the questioning or investigation to take place there. (5C) The Magistrates' Court or the Children's Court (as the case may be) must not make an order under sub-section (5) in respect of a person referred to in sub-section (1)(a)(ii), (iii) or (iv) unless— (a) having considered any known likely psychological effect of the questioning on the person; and (b) having received evidence (whether oral or written) on the fitness of the person to be questioned given by a medical practitioner— it is satisfied on the balance of probabilities that the person is fit to be questioned. (5D) A person is unfit to be questioned for the purposes of sub-section (5C) if, because the person's mental processes are disordered or impaired, the person is or, at some time during the questioning, will be— (a) unable to understand the nature of the questioning (namely that it is questioning to ascertain his or her involvement in the commission of an offence); or s. 4 -- 6 of 12 -- Act No. 86/2000 Crimes (Questioning of Suspects) Act 2000 6 (b) unable to follow the course of questioning; or (c) unable to give instructions to his or her legal practitioner; or (d) unable to understand that he or she does not have to say or do anything but that anything he or she does say or do may be given in evidence. (5E) On making an order under sub-section (5) in respect of a person referred to in sub-section (1)(a)(ii), (iii) or (iv), the Magistrates' Court or the Children's Court (as the case may be)— (a) must include in that order a condition that— (i) subject to sub-section (5F), an independent person is to be present while any questioning or investigation takes place in accordance with the order; and (ii) before the commencement of any questioning or investigation, the investigating official must allow the person to communicate with the independent person in circumstances in which as far as practicable the communication will not be overheard; and (b) may include in that order any other condition that it thinks fit in the interests of the well-being of the person during any questioning or investigation. (5F) The Magistrates' Court or the Children's Court (as the case may be) is not required to include in an order under sub-section (5) a s. 4 -- 7 of 12 -- Act No. 86/2000 Crimes (Questioning of Suspects) Act 2000 7 condition referred to in sub-section (5E)(a)(i) if the person who is the subject of the order applies to the Court for that condition not to be included and the Court is satisfied that, in all the circumstances, it is appropriate not to include it. (5G) On making an order under sub-section (5), the Magistrates' Court or the Children's Court (as the case may be) must inform the person who is the subject of the order— (a) that he or she does not have to say or do anything but that anything he or she does say or do may be given in evidence; and (b) that the investigating official must give him or her the information required to be given by sub-section (6) and section 464C(1). (5H) The following must be video-recorded— (a) the giving of any information required to be given by sub-section (6) and section 464C(1); (b) any response of the person in custody to the giving of that information; (c) any questioning that takes place in accordance with an order made under sub-section (5) and anything said by the person questioned.". (5) In section 464B(6) of the Principal Act, for "in custody" substitute "who is the subject of the order". (6) In section 464B(8) of the Principal Act— (a) for "with the consent of the person held" substitute "subject to sub-section (8A)"; s. 4 -- 8 of 12 -- Act No. 86/2000 Crimes (Questioning of Suspects) Act 2000 8 (b) in paragraph (b), omit "held". (7) In section 464B of the Principal Act, after sub- section (8) insert— "(8A) The Magistrates' Court or the Children's Court (as the case may be) must not extend a period of custody ordered under sub-section (5) or, on a subsequent application under sub-section (1), make an order against the same person in respect of the same offence unless satisfied that there is a reasonable prospect that further questioning or investigation will assist in determining the involvement (if any) of the person in the commission of the offence. (8B) In determining the length of any extension of a period of custody ordered under sub- section (5), the Magistrates' Court or the Children's Court (as the case may be) must have regard to— (a) the matters specified in section 464A(4), with any necessary modifications; and (b) if the person is a child, his or her age.". (8) In section 464B(9) of the Principal Act— (a) for "in custody" substitute "who is the subject of the order"; (b) after "held" insert "or detained". (9) In section 464B of the Principal Act, after sub- section (9) insert— '(10) In this section— s. 4 -- 9 of 12 -- Act No. 86/2000 Crimes (Questioning of Suspects) Act 2000 9 "child", in relation to a person suspected of having committed an offence, means a person who at the time of the suspected commission of the offence was under the age of 17 years but does not include any person who is of or above the age of 18 years at the time of the making of an application in respect of him or her under this section.'. 5. Right to communicate with friend, relative and legal practitioner In section 464C(3) of the Principal Act, omit "(except sub-section (1)(a))". 6. Video-recording of confessions and admissions (1) In section 464H(1) of the Principal Act— (a) in paragraph (e) for "tape-recorded—" substitute "tape-recorded; or"; (b) after paragraph (e) insert— "(f) if the confession or admission was made during questioning in accordance with an order made under section 464B(5), the questioning and anything said by the person was video- recorded—"; (c) after "the tape-recording" insert "or video- recording". (2) In section 464H(3) of the Principal Act— (a) for "section 464G" substitute "section 464B(5H) or 464G"; (b) in paragraphs (a) and (b), after "tape- recording" insert "or video-recording". (3) In section 464H(4) of the Principal Act, after "tape-recording" insert "or video-recording". s. 5 -- 10 of 12 -- Act No. 86/2000 Crimes (Questioning of Suspects) Act 2000 10 7. New section 593A inserted in Principal Act After section 593 of the Principal Act insert— "593A. Transitional provision—Crimes (Questioning of Suspects) Act 2000 The amendments of this Act made by the Crimes (Questioning of Suspects) Act 2000 applies to any person who is, at any time on or after the commencement of that Act, a person of a kind referred to in section 464B(1)(a), irrespective of when the offence to which the questioning or investigation relates was committed or alleged to have been committed.". 8. Consequential amendments (1) In section 464G of the Principal Act, at the end of the section insert— "(2) Sub-section (1) is subject to section 464B(5H).". (2) In section 464I of the Principal Act, after "464H" insert "(except as provided by an order made under section 464B(5))". (3) In section 41 of the Corrections Act 1986, after sub-section (5) insert— "(6) Nothing in this section applies to any questioning or investigation by a member of the police force in accordance with an order made under section 464B(5) of the Crimes Act 1958.". ═══════════════ s. 7 -- 11 of 12 -- Act No. 86/2000 Crimes (Questioning of Suspects) Act 2000 11 ENDNOTES † Minister's second reading speech— Legislative Assembly: 23 November 2000 Legislative Council: 28 November 2000 The long title for the Bill for this Act was "to amend the Crimes Act 1958 so as to make further provision for the questioning or investigation of certain persons who are suspected of having committed an offence, to amend the Corrections Act 1986 and for other purposes." Endnotes -- 12 of 12 --