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Justice Legislation Amendment (Victims) Act 2018
No. of 2018
TABLE OF PROVISIONS
Clause 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7 Section 425 repealed 6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
i
Clause Page
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
ii
Justice Legislation Amendment
(Victims) Act 2018
No. of 2018
[Assented to ]
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
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Justice Legislation Amendment (Victims) Act 2018
No. of 2018
Part 1--Preliminary
(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.
2
Justice Legislation Amendment (Victims) Act 2018
No. of 2018
Part 1--Preliminary
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.
3
Justice Legislation Amendment (Victims) Act 2018
No. of 2018
Part 2--Sexual offences and forensic information
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".
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Part 2--Sexual offences and forensic information
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).".
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Part 2--Sexual offences and forensic information
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
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Part 2--Sexual offences and forensic information
(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--
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Part 2--Sexual offences and forensic information
(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;".
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Part 2--Sexual offences and forensic information
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;
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Part 2--Sexual offences and forensic information
(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.
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Part 2--Sexual offences and forensic information
(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;
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Part 2--Sexual offences and forensic information
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);
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Part 2--Sexual offences and forensic information
(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).".
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Part 2--Sexual offences and forensic information
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
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Part 2--Sexual offences and forensic information
(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";
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Part 2--Sexual offences and forensic information
(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)".
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Part 3--Amendment of Children, Youth and Families Act 2005
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).
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Part 3--Amendment of Children, Youth and Families Act 2005
(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.".
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Part 4--Amendment of Criminal Procedure Act 2009
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.
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Part 4--Amendment of Criminal Procedure Act 2009
(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.
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Part 4--Amendment of Criminal Procedure Act 2009
(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;
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Part 4--Amendment of Criminal Procedure Act 2009
(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.
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Part 4--Amendment of Criminal Procedure Act 2009
(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.
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Part 4--Amendment of Criminal Procedure Act 2009
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--
24
Justice Legislation Amendment (Victims) Act 2018
No. of 2018
Part 4--Amendment of Criminal Procedure Act 2009
(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
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Justice Legislation Amendment (Victims) Act 2018
No. of 2018
Part 4--Amendment of Criminal Procedure Act 2009
(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;".
26
Justice Legislation Amendment (Victims) Act 2018
No. of 2018
Part 4--Amendment of Criminal Procedure Act 2009
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.".
27
Justice Legislation Amendment (Victims) Act 2018
No. of 2018
Part 4--Amendment of Criminal Procedure Act 2009
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.".
28
Justice Legislation Amendment (Victims) Act 2018
No. of 2018
Part 5--Amendment of Sentencing Act 1991
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.".
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Justice Legislation Amendment (Victims) Act 2018
No. of 2018
Part 5--Amendment of Sentencing Act 1991
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;".
30
Justice Legislation Amendment (Victims) Act 2018
No. of 2018
Part 6--Amendment of Serious Sex Offenders (Detention and Supervision)
Act 2009
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),".
31
Justice Legislation Amendment (Victims) Act 2018
No. of 2018
Part 7--Amendment of Victims of Crime Assistance Act 1996
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.".
32
Justice Legislation Amendment (Victims) Act 2018
No. of 2018
Part 8--Amendment of Family Violence Protection Act 2008
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".
33
Justice Legislation Amendment (Victims) Act 2018
No. of 2018
Part 9--Statute law revision
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".
34
Justice Legislation Amendment (Victims) Act 2018
No. of 2018
Part 10--Repeal of amending Act
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).
═════════════
35
Justice Legislation Amendment (Victims) Act 2018
No. of 2018
Endnotes
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:
Legislative Council:
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."
By Authority. Government Printer for the State of Victoria.
36
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