Crimes Legislation Further Amendment Bill 2016 [VIC]

On 25 October 2016, the Attorney-General, Mr Pakula, introduced the Crimes Legislation Further Amendment Bill 2016 (The Bill) into the Victorian Legislative Assembly. The Bill makes 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.

The Bill also introduces amendments to improve the procedure for hearing expert evidence in criminal trials, to simplify consent provisions where a reasonable belief in consent is an element of a sexual offence, to ensure relevant jury directions apply in all sexual offence cases and to increase the efficiency of criminal procedure law more generally.

Amendments in the Bill

According to the Second Reading Speech, The Bill makes amendments in four general areas:

• First, the Bill will provide Victorian courts with a clear power and process for hearing expert witness evidence concurrently or consecutively in a criminal trial;
• Second, the Bill will make improvements to criminal law procedures involving related or unrelated summary offences, and orders on appeal, to improve the efficiency and timeliness of court processes;
• Third, the Bill will clarify attempt provisions relating to certain sexual offences that contain an element of reasonable belief in consent; and
• Finally, the Bill will ensure that jury directions specific to sexual offences apply in cases of conspiracy, incitement or attempt to commit a sexual offence.

Expert Witness Evidence

According to the Second Reading speech, expert evidence naturally deals with specialist or technical knowledge that is unfamiliar to lay jurors. The evidence of an expert witness can be vital to understanding the facts of a case. However, the value of expert witness evidence is often matched by its complexity, and consequently, by the potential for a jury to misunderstand that evidence. This is compounded when the jury hears competing expert opinions on the same issue, sometimes days or even weeks apart. Expert evidence in criminal trials can also raise concerns about costs, delay and adversarial bias.

The Bill introduces new provisions to the Criminal Procedure Act 2009 (VIC) to give the courts a clear power and procedure for hearing expert witness evidence concurrently or consecutively, with the aim of optimising the utility, accuracy and efficiency of this evidence in criminal trials. Colloquially known as 'hot-tubbing', these provisions allow for two or more expert witnesses to give evidence at the same time or directly following one another, with the consent of the prosecution and the accused.

Unrelated Summary Offences

The Bill also makes minor technical amendments to the Criminal Procedure Act 2009 (VIC) to improve the efficiency and clarity of the law. The Bill provides clear authority to County and Supreme Courts to determine uplifted related or unrelated summary charges where the prosecution discontinues all indictable offences. The Bill also enables the Court of Appeal to substitute a conviction for an alternative offence (provided the facts presented to the originating court proved the alternative charge) where an appeal against conviction was successful following a guilty plea.

Sexual Offences

The Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (VIC) introduced an objective fault element into certain sexual offences in the Crimes Act 1958 (VIC), such as rape and sexual assault. The fault element (whether the accused reasonably believes that the complainant consents) is clear and simple for juries to understand and apply. However, the wording makes attempt provisions that apply to these substantive offences more convoluted. According to the Second Reading speech, the Bill clarifies the relevant provisions to provide that for an attempt involving rape, sexual assault or the compelled versions of these offences, the prosecution must prove that the accused does not reasonably believe that the complainant would consent to the penetration or touching (as the case requires).

Jury Directions

According to the Second Reading Speech, the Bill also amends the Jury Directions Act 2015 (VIC) so that jury directions specific to sexual offences (such as those on reasonable belief in consent) also apply in cases of conspiracy, incitement and attempt to commit a sexual offence. These amendments complement broader reforms to sexual offence law undertaken in Victoria as a result of a strong commitment to addressing the complexity, inconsistency and uncertainty of these offences.

The Bill is currently awaiting Second Reading Debate in the Legislative Assembly.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

Crimes Legislation Further Amendment Bill 2016 [VIC] and secondary materials as reproduced in TimeBase LawOne