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Monday, 21 September 2009

Transitional legislation arrives - Part 2

Dr Manhattan has already posted about the new Criminal Procedure Amendment (Consequential and Transitional Provisions) Bill 2009 to amend much of the Criminal Procedure Act 2009.

(It contains a huge number of amendments. So many, that I'm pretty confident the Criminal Procedure Act 2009 will be the first Act to be reprinted before it commences operation!)

As the good Doctor mentioned, it inserts a Part 8.2 into the Criminal Procedure Act, effectively replicating the rules found in the Evidence Act 1958 Part 2 that prescribe examination and cross-examination of specified categories of witnesses, either as complainants in sex-offence hearings or special witness such as children.

A new addition to those provisions is the inclusion of protected-witness provisions, similar to those found in the Family Violence Protection Act 2008 s 70.

Schedule 2 will also be replaced, specifying indictable offences that may be heard summarily. (But, it must be read in conjunction with Criminal Procedure Act s 28, which pretty much mirrors the current Magistrates' Court Act s 53.)

Since Friday, the Statute Law Amendment (Evidence Consequential Provisions) Bill 2009 has been published to the Victorian legislation website.

The Evidence Act 1958 will become the Evidence (Miscellaneous Provisions) Act 1958, and some parts will be retained.

For example, Part IIA on video-links will remain, as will Part IIAA on witness-identity protection.

Perhaps the most significant information, for now, is the transitional provision in clause 53, which inserts Schedule 2 in the Evidence Act 2008. There's a fair bit of detail there, but some of the highlights are:

  • the Act applies to any proceeding commenced on or after the commencement day (1 Jan 2010)
  • unless the Schedule provides otherwise, if a proceeding started before 1 Jan 2010, the Act applies to that part of the proceeding that takes place after the commencement date
  • the new identification rules in ss 114 and 115 don't apply to identifications carried out before 1 Jan 2010
  • the s 139 requirement for police to caution pretty much everybody they question only applies to statements or acts done on or after the commencement date (see Confirmation of admissions and the comments for discussion on how we think this provision might play out in summary hearings)
Part IV (oaths, affirmations affidavits and declarations) will also remain, and Schedule 3 provides for the form of oaths and affirmations. (The provisions suggest there might be regulations to prescribe the precise wording. (In 2002 Parliament's Law Reform Committee tabled its report into the Inquiry into Oaths and Affirmations with reference to the Multicultural Community, and noted there was no prescribed wording for Victorian court proceedings, unlike other jurisdictions that usually have an Oaths Act or similar. )

Clause 42 will repeal Crimes Act s 398A. I think this will mean Victorian evidence law will change to follow the High Court in R v HML.

Clause 43 will repeal Crimes Act s 399 (as recommended by the VLRC), which will allow Evidence Act 2008 s 20 to operate without conflict. That means Azzopardi v The Queen (2001) 205 CLR 50 will apply in Victoria — though rarely, given the High Court held that cases when a judge may comment on an accused's failure to give evidence will be rare and exceptional. Azzopardi (and Weissensteiner and RPS before it) dealt with jury trials. Section 20 prohibits a prosecutor from making comment, and restricts a judge from commenting, on the accused's failure to give evidence. Self-evidently, those stricture apply in front of a jury. The operation of s 20 could be raised between advocates and judge in the absence of the jury, especially if they want to discuss the possible operation of the section.

I'm not certain how that might operate in a summary hearing with a joint trier of law and fact. Perhaps it may be no more complex than clearly delineating the particular role played by a magistrate at any specified point in a proceeding? Egan v Bott [1985] VR 787 and Furnell v Betts (1979) 20 SASR 300 both suggest that despite their blurred role, magistrates ought to adopt the same procedure as a trial judge. (Similarly, they should 'direct' themselves as a trial judge does a jury: Beames v Police (SA) (2002) 135 A Crim R 447 at [19] – [20]; Fleming v The Queen (1998) 197 CLR 250Grbic v Pitkethly (1992) 65 A Crim R 12; R v Reid [1990] 1 AC 363 at 380.)

No doubt there's a lot more to uncover as we digest the Bills, but at least we now know the transitional details!

Thanks again to Jeremy Gans for the tip on Friday.

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