Crimes (Sexual Offences) Act 1991

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No. 8/1991 TABLE OF PROVISIONS PART 1 PRELIMINARY Section 1. Purposes 2. Commencement PART 2 AMENDMENT OF THE CRIMES ACT 1958 3. New Subdivisions (8) to (8F) inserted in Division 1 of Part I (8) Sexual Offences (General Provisions) 36. Additional conduct that constitutes rape 36A. Consent of no effect if obtained by certain false representations 37. Meaning of sexual penetration 38. Meaning of aggravating circumstances 39. Meaning of other terms in Subdivisions (8) to (8G) (8A) Rape and Indecent Assault 40. Rape 41. Rape with aggravating circumstances 42. Indecent assault 43. Indecent assault with aggravating circumstances 44. Incest (8B) Incest (8c) Sexual Offences against Children 45. Sexual penetration of child under the age of 10 46. Sexual penetration of child aged between 10 and 16 47. Indecent act with child under the age of 16 47A. Sexual relationship with child under the age of 16 48. Sexual penetration of 16 year old child 49. Indecent act with 16 year old child 49

(8D) Sexual Offences against People with Impaired Mental Functioning 50. Definitions 51. Sexual offences against people with impaired mental functioning 52. Sexual offences against residents of residential facilities (8E) Other Sexual Offences 53. Administration of drugs, etc. 54. Occupier, etc. permitting unlawful sexual penetration 55. Abduction or detention 56. Abduction of child under the age of 16 57. Procuring sexual penetration by threats or fraud 58. Procuring sexual penetration of child under the age of 16 59. Bestiality 60. Soliciting acts of sexual penetration or indecent acts (8F) Jury Warnings 61. Jury Warnings 4. Time limits applicable to trials for certain sexual offences 5. New section 425 substituted 425. Alternative verdicts for certain charges of sexual offences 6. Minor amendments PART 3 AMENDMENT OF THE EVIDENCE ACT 1958 7. Definitions 8. Evidence of children and people with impaired mental functioning 9. New section 23A inserted 23A. Questioning of complainant who is not competent to give evidence 10. Special rules of evidence in relation to sexual offences 11. New sections 37B and 37c inserted 37B. Use of recorded evidence-in-chief in certain proceedings 37c. Alternative arrangements for giving evidence in certain proceedings PART 4 AMENDMENT OF THE MAGISTRATES' COURT ACT 1989 12. Definition of sexual offence 13. Power to close proceedings to the public 14. Indictable offences triable summarily 15. Use of recorded evidence at committal proceeding 16. Special rules applicable to committal proceedings for sexual offences PART 5 MISCELLANEOUS AMENDMENTS 17. New section 52A inserted in Summary Offences Act 52A. Offence to harass witnesses, etc. 18. Restrictions on reports of alleged sexual offences 50

19. 20. Power to close Supreme and County Court proceedings to the public Consequential amendments 21. Transitional provisions 22. Statute law revision SCHEDULE Transitional Provisions 51

Victoria No. 8 of 1991 Crimes (Sexual Offences) Act 1991 The Parliament of Victoria enacts as follows: [Assented to 16 April 1991] 1. Purposes PART 1 PRELIMINARY The purposes of this Act are (a) to amend the substantive law relating to sexual offences; and (b) to alter the procedural and evidentiary rules relating to sexual offences and indictable offences involving violence or a threat of violence particularly so far as they relate to children and people with impaired mental functioning; and 53

s. 2 Act No. 8/1991 (c) to create a specific offence relating to the harassing of witnesses; and (d) to restrict the publication of reports of alleged sexual offences; and (e) to widen the power of courts to close to the public proceedings relating to alleged sexual offences. 2. Commencement (1) This Act (except section 22) comes into operation on a day or days to be proclaimed. (2) Section 22 comes into operation on the day on which this Act receives the Royal Assent. PART 2 AMENDMENT OF THE CRIMES ACT 1958 No. 6231. Reprinted to No. 19/1987. Subsequently amended by Nos 70/1987, 78/1987, 36/1988, 37/1988. 38/1988, 40/1988, 12/1989, 19/1989, 25/1989, 39/1989, 44/1989, 51/1989, 56/1989, 57/1989, 84/1989 and 24/1990. 3. New Subdivisions (8) to (8F) inserted in Division 1 of Part I For Subdivisions (8), (8A), (8B), (8C), (8D), (8E) and (8F) of Division 1 of Part I of the Crimes Act 1958 substitute '(8) Sexual Offences (General Provisions) 36. Additional conduct that constitutes rape (1) Without affecting the conduct which constitutes rape at common law, it is also rape if a person (a) introduces his penis into the anus or mouth of another person in circumstances in which the introduction of the penis of a person into the vagina of another person would be rape at common law; or (b) introduces a part of his or her body (other than the penis) into the vagina or anus of another person in the circumstances described in paragraph (a); or (c) introduces an object into the vagina or anus of another person in the circumstances described in paragraph (a); or 54

Act No. 8/1991 s. 3 (d) does not withdraw (i) his penis from the vagina, anus or mouth of another person; or (ii) a part of his or her body (other than the penis) from the vagina or anus of another person; or (iii) an object being manipulated by him or her from the vagina or anus of another person on becoming aware that the other person is not consenting to its being there or realising that the other person might not be so consenting. (2) For the purposes of paragraphs (a), (b) and (c) of sub-section (1) introduction to any extent is sufficient. (3) It is not necessary to prove the emission of semen in order to prove rape of any kind. 36A. Consent of no effect if obtained by certain false representations (1) Consent to conduct which could otherwise constitute rape or indecent assault is of no effect if it was obtained by a false representation that the conduct was for medical or hygienic purposes. (2) Nothing in this section prevents consent to conduct which could otherwise constitute rape or indecent assault from being regarded at common law as having no effect because it was obtained under a mistake. 37. Meaning of sexual penetration (1) For the purposes of this Act an act of sexual penetration is (a) the introduction by a person of his penis into the vagina, anus or mouth of another person, whether or not there is emission of semen; or 55

s. 3 Crimes (Sexual Offences) Act 1991 Act No. 8/1991 (b) the introduction by a person of a part of his or her body (other than the penis) into the vagina or anus of another person, otherwise than in the course of an appropriate and generally accepted medical or hygienic procedure; or (c) the introduction by a person of an object into the vagina or anus of another person, otherwise than in the course of an appropriate and generally accepted medical or hygienic procedure. (2) For the purposes of sub-section (1) introduction to any extent is sufficient. (3) Both persons are, for the purposes of this Act, taking part in an act of sexual penetration. 38. Meaning of aggravating circumstances (1) For the purposes of the law relating to rape and indecent assault there are aggravating circumstances only if (a) the offender has with him or her (i) a firearm; or (ii) an imitation firearm; or (iii) an offensive weapon; or (iv) an explosive; or (v) an imitation explosive as defined in section 77 (1); or (b) immediately before or during or immediately after the commission of the offence and at, or in the vicinity of, the place where the offence was committed (i) the offender inflicts serious personal violence on the victim or another person; or (ii) the offender does an act which is likely seriously and substantially to degrade or humiliate the victim; or 56

Act No. 8/1991 s. 3 (iii) the offender is aided or abetted by another person who is present. (2) The judge presiding at a trial at which a person is found guilty of (a) rape; or {b) an attempt to commit rape; or (c) assault with intent to commit rape; or (d) indecent assault may, in the circumstances described in sub-section (3), direct that a verdict of guilty of the offence with aggravating circumstances be entered in the records of the court. (3) A judge may give a direction under sub-section (2) if satisfied that the accused had previously been convicted (under this Act or any corresponding previous enactment or at common law) of (a) rape (with or without aggravating circumstances); or (b) rape with mitigating circumstances; or (c) an attempt to commit rape (with or without aggravating circumstances); or (d) assault with intent to commit rape (with or without aggravating circumstances); or (e) indecent assault (with or without aggravating circumstances). (4) A judge may give a direction under sub-section (2) even if the accused pleaded guilty. (5) A person in respect of whom a direction is given under sub-section (2) must for all purposes be taken to have been found guilty of the offence with aggravating circumstances and is liable to punishment accordingly. 57

s.3 Act No. 8/1991 39. Meaning of other terms in Subdivisions (8) to (8G) In this Subdivision and Subdivisions (8A) to (8G)- "De facto spouse" means a person who is living with a person of the opposite sex as if they were married although they are not. "Vagina" includes a surgically constructed vagina. (8A) Rape and Indecent Assault 40. Rape A person who commits rape is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years. 41. Rape with aggravating circumstances A person who commits rape is, if there are aggravating circumstances, guilty of the indictable offence of rape with aggravating circumstances and liable to imprisonment for a term not exceeding 20 years. 42. Indecent assault A person must not indecently assault another person. Penalty: Imprisonment for 5 years. 43. Indecent assault with aggravating circumstances A person who indecently assaults another person is, if there are aggravating circumstances, guilty of the indictable offence of indecent assault with 58

Act No. 8/1991 s. 3 aggravating circumstances and liable to imprisonment for a term not exceeding 10 years. 44. Incest (8B) Incest (1) A person must not take part in an act of sexual penetration with a person whom he or she knows to be his or her child or other lineal descendant or his or her step-child. Penalty: Imprisonment for 20 years. (2) A person must not take part in an act of sexual penetration with a person under the age of 18 whom he or she knows to be the child or other lineal descendant or the step-child of his or her de facto spouse. Penalty: Imprisonment for 20 years. (3) A person who is aged 18 or older must not take part in an act of sexual penetration with a person whom he or she knows to be his or her father or mother or other lineal ancestor or his or her stepfather or step-mother. Penalty: Imprisonment for 5 years. (4) A person must not take part in an act of sexual penetration with a person whom he or she knows to be his or her sister, half-sister, brother or halfbrother. Penalty: Imprisonment for 7 years. (5) Consent is not a defence to a charge under this section. (6) It is a defence to a charge under this section for the person charged to prove that he or she took part under the coercion of the other person. (7) In all proceedings for offences under this section (except under sub-section (2)) it shall be presumed in the absence of evidence to the contrary 59

s. 3 Crimes (Sexual Offences) Act 1991 Act No. 8/1991 (a) that the accused knew that he or she was related to the other person in the way alleged; and (b) that people who are reputed to be related to each other in a particular way are in fact related in that way. (8c) Sexual Offences against Children 45. Sexual penetration of child under the age of 10 (1) A person must not take part in an act of sexual penetration with a child under the age of 10. Penalty: Imprisonment for 20 years. (2) Consent is not a defence to a charge under subsection (1). 46. Sexual penetration of child aged between 10 and 16 (1) A person must not take part in an act of sexual penetration with a child aged between 10 and 16 to whom he or she is not married. Penalty: (a) Imprisonment for 15 years if the child was, at the time of the offence, under the care, supervision or authority of the defendant; (b) Imprisonment for 10 years in any other case. (2) Consent is not a defence to a charge under sub-section (1) unless at the time of the alleged offence (a) the accused believed on reasonable grounds that the child was aged 16 or older; or (b) the accused was not more than 2 years older than the child; or 60

Act No. 8/1991 s.3 (c) the accused believed on reasonable grounds that he or she was married to the child. 47. Indecent act with child under the age of 16 (1) A person must not wilfully commit, or wilfully be in any way a party to the commission of. an indecent act with or in the presence of a child under the age of 16 to whom he or she is not married. Penalty: Imprisonment for 10 years. (2) Consent is not a defence to a charge under subsection (1) unless at the time of the alleged offence (a) the accused believed on reasonable grounds that the child was aged 16 or older; or (b) the accused was not more than 2 years older than the child; or (c) the accused believed on reasonable grounds that he or she was married to the child. 47A. Sexual relationship with child under the age of 16. (1) A person who maintains a sexual relationship with a child under the age of 16 to whom he or she is not married and who is under his or her care, supervision or authority is guilty of an indictable offence. (2) To prove an offence under sub-section (1) it is necessary to prove (a) that the accused during a particular period (while the child was under the age of 16 and under his or her care, supervision or authority) did an act in relation to the child which would constitute an offence 61

s.3 Crimes (Sexual Offences) Act 1991 Act No. 8/1991 under a particular provision of this Subdivision or Subdivision (8A) or (8B); and (b) that such an act also took place between the accused and the child on at least two other occasions during that period. (3) It is not necessary to prove the dates or the exact circumstances of the alleged occasions. (4) A person who is guilty of an offence under subsection (1) is liable to a penalty not exceeding the maximum penalty fixed or prescribed by law for the offence which the relevant act would constitute. (5) If on the trial of a person charged with an offence against sub-section (1) the jury are not satisfied that he or she is guilty of the offence charged but are satisfied that the accused did an act during that period which constitutes an offence against Subdivision (8A), (8B), (8C), (8D) or (8E) of Division 1 of Part I, the jury must acquit the accused of the offence charged but may find him or her guilty of that other offence and he or she is liable to punishment accordingly. (6) Sub-section (5) does not restrict the operation of section 421 or 422. (7) A prosecution for an offence under sub-section (1) must not be commenced without the consent of the Director of Public Prosecutions. 48. Sexual penetration of 16 year old child (1) A person must not take part in an act of sexual penetration with a 16 or 17 year old child to whom he or she is not married and who is under his or her care, supervision or authority. Penalty: Imprisonment for 3 years. 62

Act No. 8/1991 s. 3 (2) Consent is not a defence to a charge under sub-section (1) unless at the time of the alleged offence the accused believed on reasonable grounds (a) that the child was aged 18 or older; or (b) that he or she was married to the child. 49. Indecent act with 16year old child (1) A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a 16 year old child to whom he or she is not married and who is under his or her care, supervision or authority. Penalty: Imprisonment for 2 years. (2) Consent is not a defence to a charge under sub-section (1) unless at the time of the alleged offence the accused believed on reasonable grounds (a) that the child was aged 17 or older; or (b) that he or she was married to the child. (8n) Sexual Offences against People with Impaired Mental Functioning 50. Definitions (1) In this Subdivision "Impaired" includes impaired because of mental illness, intellectual disability, dementia or brain injury. "Indecent act" does not include an act done in the course of an appropriate and generally accepted medical, therapeutic or hygienic procedure. "Intellectual disability" has the same meaning as in the Intellectually Disabled Persons' Services Act 1986. 63

s.3 Crimes (Sexual Offences) Act 1991 Act No. 8/1991 "Resident", in relation to a residential facility, means a person who resides there for the purpose of receiving services for impaired mental functioning. "Residential facility" means {a) a psychiatric in-patient service as defined in section 3 of the Mental Health Act 1986; or (b) premises operated by any person or body (government or non-government) wholly or substantially for the purpose of providing residential services to intellectually disabled people. "Worker" means a person who provides services to residents at a residential facility (whether as an employee or as a voluntary worker or in any other capacity) but does not include a person who also receives services for impaired mental functioning. (2) For the purposes of this Subdivision a person in respect of whom a declaration of eligibility has been issued under section 8 of the Intellectually Disabled Persons' Services Act 1986 must be taken to be intellectually disabled. 51. Sexual offences against people with impaired mental functioning (1) A person who provides medical or therapeutic services to a person with impaired mental functioning who is not his or her spouse or de facto spouse must not take part in an act of sexual penetration with that person. Penalty: Imprisonment for 5 years. (2) A person who provides medical or therapeutic services to a person with impaired mental functioning who is not his or her spouse or de 64

Act No. 8/1991 s. 3 facto spouse must not commit, or be in any way a party to the commission of, an indecent act with that person. Penalty: Imprisonment for 3 years. (3) Consent is not a defence to a charge under this section unless at the time of the alleged offence the accused believed on reasonable grounds that he or she was the spouse or de facto spouse of the other person. (4) This section only applies if the services are related to the impaired mental functioning. 52. Sexual offences against residents of residential facilities (1) A worker at a residential facility must not take part in an act of sexual penetration with a resident of the facility who is not his or her spouse or de facto spouse. Penalty: Imprisonment for 5 years. (2) A worker at a residential facility must not commit, or be in any way a party to the commission of, an indecent act with a resident of the facility who is not his or her spouse or de facto spouse. Penalty: Imprisonment for 3 years. (3) Consent is not a defence to a charge under this section unless at the time of the alleged offence the accused believed on reasonable grounds that he or she was the spouse or de facto spouse of the resident. (8E) Other Sexual Offences 53. Administration of drugs, etc. A person must not (a) administer a drug, matter or thing to a person; or 78537/91 3 65

Act No. 8/1991 (b) cause a drug, matter or thing to be taken by a person with the intention of rendering that person incapable of resistance and thereby enabling himself or herself or another person to take part in an act of sexual penetration with that person. Penalty: Imprisonment for 10 years. 54. Occupier, etc. permitting unlawful sexual penetration The owner or occupier of, or a person managing or assisting in the management of, any premises must not induce or knowingly allow a child under the age of 17 to enter or remain on the premises for the purpose of taking part in an unlawful act of sexual penetration. Penalty: (a) Imprisonment for 10 years if the child is under the age of 13; 55. Abduction or detention (b) Imprisonment for 5 years if the child is aged between 13 and 17. A person must not take away a person by force or detain a person against his or her will (a) with the intention of getting married to, or taking part in an act of sexual penetration with, that person; or (b) with the intention that that person should marry, or take part in an act of sexual penetration with, another person. Penalty: Imprisonment for 10 years. 56. Abduction of child under the age of 16 (1) A person must not take away a child under the age of 16 against the will of a person who has lawful charge of the child with the intention that 66

Act No. 8/1991 s. 3 the child should take part in an act of sexual penetration outside marriage with him or her or any other person. Penalty: Imprisonment for 5 years. (2) A person must not cause a child under the age of 16 to be taken away against the will of a person who has lawful charge of the child with the intention that the child should take part in an act of sexual penetration outside marriage with him or her or any other person. Penalty: Imprisonment for 5 years. 57. Procuring sexual penetration by threats or fraud (1) A person must not by threats or intimidation procure a person to take part in an act of sexual penetration. Penalty: Imprisonment for 5 years. (2) A person must not by any fraudulent means procure a person to take part in an act of sexual penetration. Penalty: Imprisonment for 5 years. 58. Procuring sexual penetration of child under the age of!6 (1) A person must not procure a child under the age of 16 to take part in an act of sexual penetration outside marriage with another person. Penalty: Imprisonment for 5 years. (2) A person must not procure another person to take part in an act of sexual penetration outside marriage with a child under the age of 16. Penalty: Imprisonment for 5 years. 67

s.3 Crimes (Sexual Offences) Act 1991 Act No. 8/1991 59. Bestiality (1) A person must not commit an act of bestiality. Penalty: Imprisonment for 5 years. (2) An act of bestiality is any of the following (a) buggery committed by a man on an animal of either sex; (b) buggery committed by an animal on a man or woman; (c) penetration of the vagina of an animal by the penis of a man; (d) penetration of the vagina of a woman by the penis of an animal. (3) The law relating to buggery is as set out in this Act and no prosecution shall be instituted for an offence of buggery unless it is for an offence under this section. 60. Soliciting acts of sexual penetration or indecent acts (1) A person must not solicit or otherwise actively encourage a child under the age of 18 to whom he or she is not married and who is under his or her care, supervision or authority to take part in an act of sexual penetration or an indecent act with him or her or another person or generally. Penalty: 50 penalty units or imprisonment for 12 months. (2) An offence under sub-section (1) is a summary offence. (8F) Jury Warnings 61. Jury warnings (1) On the trial of a person for an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) or under 68

Act No. 8/1991 s.4 any corresponding previous enactment or for an attempt to commit any such offence or an assault with intent to commit any such offence {a) the judge must not warn, or suggest in any way to, the jury that the law regards complainants in sexual cases as an unreliable class of witness; and (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 must (i) warn the jury that delay in complaining does not necessarily indicate that the allegation is false; and (ii) inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in complaining about it. (2) Nothing in sub-section (1) prevents a judge from making any comment on evidence given in the proceeding that it is appropriate to make in the interests of justice.'. 4. Time limits applicable to trials for certain sexual offences In section 359A (1) of the Crimes Act 1958 (a) in paragraph (a) (i) for "preliminary examination before" substitute "committal proceeding in"; (ii) for "45" substitute "40, 41, 42 (if the complainant was under the age of 16 at the time of the alleged offence), 43 (if the complainant was under the age of 16 at the time of the alleged offence), 44,45, 46, 47, 47A, 69

s.5 Act No. 8/1991 51, 52 or 57 or for an attempt to commit any such offence or for an assault with intent to commit any such offence"; (b) in paragraph (b) (i) for "against section 45" substitute "referred to in paragraph (a) or for an attempt to commit any such offence or for an assault with intent to commit any such offence"; (ii) for "preliminary examination of him" substitute "committal proceeding". 5. New section 425 substituted For section 425 of the Crimes Act 1958 substitute "425. Alternative verdicts for certain charges of sexual offences (1) If on the trial of a person charged with rape the jury are not satisfied that he or she is guilty of rape or of an attempt to commit rape but are satisfied that he or she is guilty of (a) assault with intent to commit rape; or (b) an offence against section 42 (indecent assault); or (c) assault with intent to commit an offence against section 45 (1) (sexual penetration of child under the age of 10); or (d) assault with intent to commit an offence against section 46 (1) (sexual penetration of child aged between 10 and 16); or (e) an offence against section 47 (1) (indecent act with child under the age of 16); or (/) an offence against section 18 (causing injury intentionally or recklessly) the jury may acquit the accused of rape and find him or her guilty of whichever of those 70

Act No. 8/1991 s. 5 offences they are satisfied he or she is guilty and he or she is liable to punishment accordingly. (2) If on the trial of a person charged with rape with aggravating circumstances the jury are not satisfied that he or she is guilty of rape with aggravating circumstances or of an attempt to commit rape with aggravating circumstances but are satisfied that he or she is guilty of (a) assault with intent to commit rape with aggravating circumstances; or (b) an offence against section 43 (indecent assault with aggravating circumstances); or (c) any offence of which he or she may be found guilty on a charge of rape the jury may acquit the accused of rape with aggravating circumstances and find him or her guilty of whichever of those offences they are satisfied he or she is guilty and he or she is liable to punishment accordingly. (3) If on the trial of a person charged with an offence against section 44, 45 (1) or 46 (1) the jury are not satisfied that he or she is guilty of the offence charged or of an attempt to commit the offence charged but are satisfied that he or she is guilty of (a) assault with intent to commit the offence charged; or (b) an offence against section 47 (1) (indecent act with child under the age of 16); or (c) an offence against section 18 (causing injury intentionally or recklessly) the jury may acquit the accused of the offence charged and find him or her guilty of whichever of those offences they are satisfied that he or she is guilty and he or she is liable to punishment accordingly. 71

s. 6 Act No. 8/1991 (3) This section does not restrict the operation of section 421 or 422.". 6. Minor amendments In the Crimes Act 1958 (a) in section 2A (1) omit the definition of "Rape"; (b) sub-sections (2) and (3) of section 2A are repealed; (c) section 62 (3) is repealed; (d) in section 464 (2), in the definition of "Sexual offence", for "(8c) or (8D)" substitute "(8c), (8D) or(8e)"; (e) in the Sixth Schedule for Forms 5 and 6 substitute "5 STATEMENT OF OFFENCE Taking part in an act of sexual penetration with a child aged between 10 and 16, contrary to section 46 (I) of the Crimes Act 1958. PARTICULARS OF OFFENCE A.B. at on the day of 19 took part in an act of sexual penetration with CD. a person who was aged between 10 and 16 and to whom A.B. was not married in that he introduced his penis into the mouth of CD. 6 STATEMENT OF OFFENCE Incest, contrary to section 44 (1) of the Crimes Act 1958. 72

Act No. 8/1991 s.7 PARTICULARS OF OFFENCE A.B. at on the day of 19 took part in an act of sexual penetration with CD. a person whom he knew to be his child in that he introduced his penis into the mouth of CD.". PART 3 AMENDMENT OF THE EVIDENCE ACT 1958 7. Definitions In section 3 (1) of the Evidence Act 1958 (a) after the definition of "Film" insert ' "Impaired", in relation to mental functioning, includes impaired because of mental illness, intellectual disability, dementia or brain injury.'; (b) after the definition of "Person acting judicially" insert ' "Sexual offence" means an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) of Division 1 of Part I of the Crimes Act 1958 or under any corresponding previous enactment or an attempt to commit any such offence or an assault with intent to commit any such offence.'. No. 6246. Reprinted to No. 127/1986. Subsequently amended by Nos 42/1987, 83/1987, 85/1987, 29/1988, 12/1989, 19/1989, 51/1989, 57/1989 and 34/1990. 8. Evidence of children and people with impaired mental functioning In section 23 of the Evidence Act 1958 (a) for sub-sections (1) and (2) substitute "(1) If a person with impaired mental functioning or under the age of 14 is called as a witness in any legal proceeding and that person does not in the opinion of the court understand the nature of an oath, his or her evidence may be 73

s.9 Crimes (Sexual Offences) Act 1991 Act No. 8/1991 received, though not given on oath, if, in the opinion of the court, he or she (a) understands the duty of speaking the truth; and (b) is capable of responding rationally to questions about the facts in issue. (2) The competency of a person with impaired mental functioning or under the age of 14 to give evidence must be determined in the absence of the jury. (2A) On the trial of a person for an offence, the judge must not warn, or suggest in any way to, the jury that the law regards people with impaired mental functioning or children as an unreliable class of witness. (2B) Nothing in sub-section (2A) prevents a judge from making any comment on evidence given in the proceeding that it is appropriate to make in the interests of justice."; (b) in sub-section (3) for "child" substitute "person". 9. New section 23A inserted After section 23 of the Evidence Act 1958 insert "23A. Questioning of complainant who is not competent to give evidence (1) This section applies to a legal proceeding that relates (wholly or partly) to a charge for a sexual offence committed against a person with impaired mental functioning who is not competent to give evidence. (2) The court may give directions for the complainant to be seen by it and the jury and questioned about matters other than the facts 74

Act No. 8/1991 s. 10 in issue if the capacity of the complainant to consent to the sexual activity, or the state of mind of the accused in relation to the complainant's capacity to so consent, is relevant. (3) The directions given by the court under sub-section (2) may (a) require the complainant to be present in the room in which the court is sitting or to be elsewhere but to be able to be seen and heard in that room by means of closed-circuit television or other facilities; or (b) specify how the questioning is to be carried out and, in particular, whether and, if so, how a member of the jury may ask a question; or (c) authorise a video recording to be made and viewed by the court and the jury.". 10. Special rules of evidence in relation to sexual offences (1) In section 37A (1) of the Evidence Act 1958 (a) for "an offence under section 45, 47, 48, 50, 51 or 52 of the Crimes Act 1958" substitute "a sexual offence"; (b) in Rule (2) (a) for "her" substitute "his or her"; (c) in Rule (3) (b) (i) (i) for "his" substitute "his or her"; (ii) for "he" substitute "he or she"; (d) after Rule (5) insert "(6) If the court grants leave under Rule (2) it (a) must state in writing the reasons for granting leave; and (b) cause those reasons to be entered in the records of the court.". (2) In section 37A of the Evidence Act 1958, after sub-section (1) insert 75

s. 11 Act No. 8/1991 "(2) The failure of a court to comply with Rule (6) in sub-section (1) does not invalidate any order made by it.". 11. New sections 37B and 37c inserted (1) After section 37A of the Evidence Act 1958 insert "37B. Use of recorded evidence-ih-chief in certain proceedings (1) This section applies to a legal proceeding, other than a committal proceeding, that relates (wholly or partly) to a charge for (a) a sexual offence; or (b) an indictable offence which involves an assault on, or injury or a threat of injury to, a person. (2) The evidence-in-chief of a witness for the prosecution may be given (wholly or partly) in the form of an audio or video recording of the witness answering questions put to him or her by a person prescribed for the purposes of this section if the witness is a person with impaired mental functioning or is under the age of 18. (3) Subject to sub-section (4), the recording is admissible in evidence in the proceeding as if its contents were the direct testimony of the witness if (a) it is proved that a transcript of it was served personally on the defendant or by post on his or her legal practitioner at least 14 days before the commencement of the hearing of the proceeding; and (b) it is proved that the defendant and his or her legal practitioner were, in accordance with the regulations, given a reasonable opportunity to listen to and, in the case of a video recording, view the recording; and (c) at the proceeding the witness 76

Act No. 8/1991 s.ll (i) identifies himself or herself and attests to the truthfulness of the contents of the recording; and (ii) is available for cross-examination and re-examination. (4) The court may rule as inadmissible the whole or any part of the contents of a recording. 37c. Alternative arrangements for giving evidence in certain proceedings (1) This section applies to a legal proceeding that relates (wholly or partly) to a charge for (a) a sexual offence; or (b) an indictable offence which involves an assault on, or injury or a threat of injury to, a person. (2) If a person with impaired mental functioning or under the age of 18 is called to give evidence, the court may, of its own motion or on the application of a party to the proceeding, direct that alternative arrangements be made for the giving of evidence by the witness. (3) Without limiting sub-section (2), any of the following alternative arrangements may be directed to be made (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 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 to be beside the witness while he or she is giving evidence for the purpose of providing emotional support to him or her; (d) requiring counsel not to robe; 77

s.12 Crimes (Sexual Offences) Act 1991 Act No. 8/1991 (e) requiring counsel to be seated while examining or cross-examining the witness; (/) permitting only persons specified by the court to be present while the witness is giving evidence. (4) 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. (5) 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. (6) 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.". (2) In section 152 (2) of the Evidence Act 1958 before paragraph (a) insert "(aa) the making, use, possession, storage, access to and destruction of an audio or video recording referred to in section 37B of this Act or Schedule 5 to the Magistrates' Court Act 1989; and". PART 4 AMENDMENT OF THE MAGISTRATES' COURT ACT 1989 No. 51/1989. Amended by Nos 25/1989, 48/1989, 54/1989, 56/1989, 5/1990, 11/1990 and 34/1990. 12. Definition of sexual offence In section 3 (1) of the Magistrates' Court Act 1989 after the definition of "Sentencing order" insert ' "Sexual offence" means an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) of Division 1 of Part I of the Crimes Act 1958 or under any corresponding previous enactment or an attempt to commit any 78

Act No. 8/1991 s. 13 such offence or an assault with intent to commit any such offence.'. 13. Power to close proceedings to the public In section 126 (1) of the Magistrates' Court Act 1989, after paragraph (c) insert ";or (d) cause undue distress or embarrassment to the complainant in a proceeding that relates to a charge for a sexual offence.". 14. Indictable offences triable summarily In Schedule 4 to the Magistrates' Court Act 1989, for items 8 to 14 substitute "8. Indecent assault Offences under section 42 of the Crimes Act 1958. 9. Indecent act with child under the age of 16 Offences under section 47 (1) of the Crimes Act 1958. 10. Sexual penetration of 16 or 17 year old child Offences under section 48 (1) of the Crimes Act 1958. 11. Indecent act with 16 year old child Offences under section 49 (1) of the Crimes Act 1958. 79

Act No. 8/1991 12. Sexual offences against people with impaired mental functioning Offences under section 51 (2) of the Crimes Act 1958. 13. Sexual offences against residents of residential facilities Offences under section 52 (2) of the Crimes Act 1958. 14. Occupier, etc. permitting unlawful sexual penetration Offences under section 54 of the Crimes Act 1958. 14A. Procuring sexual penetration of child under the age 0fl6 14B. Bestiality Offences under section 58 of the Crimes Act 1958. Offences under section 59 of the Crimes Act 1958.".. Use of recorded evidence at committal proceeding In Schedule 5 to the Magistrates' Court Act 1989 (a) after clause 1 (1) insert "(1 AA) In the case of a committal proceeding that relates (wholly or partly) to a charge for (a) a sexual offence; or (b) an offence which involves an assault on, or injury or a threat of injury to, a person a hand-up brief may contain a transcript of an audio or video recording of a kind referred to in section 37B (2) of the Evidence Act 1958, being a recording 80

Act No. 8/1991 s.15 which the informant intends to tender at the committal proceeding and which contains an acknowledgement by the witness that the contents of the recording are true."; (b) after clause 1 (5) insert "(6) A transcript of an audio or video recording must be accompanied by an affidavit sworn by the person who asked the questions attesting to the accuracy of the recording. (7) A person who acknowledges the contents of a recording which the informant intends to tender at the committal proceeding and which the person knows at the time to be false may be dealt with as if the contents of the recording had been evidence given in court."; (c) in clause 3(1) after "statements" insert "or recorded giving evidence"; (d) in clause 3 (8) after "statement" insert "or recorded evidence"; (e) in clause 5 (2) after "statement" insert "or recorded evidence"; (/) in clause 5 (4) after "brief insert "or of the contents of the recording a transcript of which was served in the hand-up brief; (g) in clause 5 (5) for "sub-clause (6)" substitute "subclauses (6) and (6A)"; (h) in clause 5 (5) after paragraph (c) insert "(d) Any recording the truthfulness of the contents of which has been attested to. (e) Subject to sub-clause (2), any other recording a transcript of which has been served in the hand-up brief."; (/) in clause 5 (6) after "statement" (where secondly occurring) insert "or the whole or any part of the contents of a recording"; (j) after clause 5 (6) insert "(6A) A recording a transcript of which has been served in the hand-up brief is only admissible 81

s. 16 Crimes (Sexual Offences) Act 1991 Act No. 8/1991 if it is proved that the defendant and his or her legal practitioner were, in accordance with the regulations made under section 152 of the Evidence Act 1958, given a reasonable opportunity to listen to and, in the case of a video recording, view the recording."; (k) in clause 5 (7) after "statement" insert "or recorded evidence". (/) in clause 14 (a) (ii) before "a copy" (where first occurring) insert "subject to this Schedule and the regulations made under section 152 of the Evidence Act 1958,". 16. Special rules applicable to committal proceedings for sexual offences (1) In clause 15 of Schedule 5 to the Magistrates' Court Act 1989 (a) in sub-clause (1) (i) for "This" substitute "Except as otherwise provided in sub-clause (8), this"; (ii) for "an offence under section 45, 47, 48, 50, 51 or 52 of the Crimes Act 1958" substitute "a sexual offence"; (b) in sub-clause (3) after "being read" insert "or a recording of the evidence of the complainant is being played"; (c) in sub-clause (3) after paragraph (b) insert "(ba) A person whom the complainant wishes to have present for the purpose of providing emotional support to him or her and who is reasonably available and approved by the court to be present;"; (d) in sub-clause (4) after "being read" insert "or a recording of the evidence of the complainant is being played"; (e) after sub-clause (7) insert "(7 A) The hand-up brief must contain a copy of every statement made by the complainant 82

Act No. 8/1991 s. 17 to any member of the police force that relates to the offence with which the defendant is charged and contains an acknowledgment of its truthfulness."; (J) in sub-clause (8) (i) for "The committal proceeding" substitute "A committal proceeding which relates to a charge for an offence under section 40, 41, 42 (if the complainant was under the age of 16 at the time of the alleged offence), 43 (if the complainant was under the age of 16 at the time of the alleged offence), 44,45,46,47, 47A, 51, 52 or 57 of the Crimes Act 1958 or for an attempt to commit any such offence or for an assault with intent to commit any such offence (whether or not the committal proceeding relates to any other charge against the same or any other person and whether or not it is alleged that there are aggravating circumstances)"; (ii) in paragraph (a) for "sub-clause (1.)" substitute "this sub-clause". (2) In clause 16(1) of Schedule 5 to the Magistrates' Court Act 1989 for "to which clause 15 applies" substitute "referred to in clause 15 (8)". PART 5 MISCELLANEOUS AMENDMENTS 17. New section 52A inserted in Summary Offences Act After section 52 of the Summary Offences Act 1966 insert "52A. Offence to harass witnesses, etc. A person must not harass a person because that person has taken part, is about to take part or is taking part in a criminal proceeding in any court as a witness or in any other capacity. Penalty: 120 penalty units or imprisonment for 12 months.". 83 No. 7405. Reprinted to No. 9928. Subsequently amended by No* 9945, 10012, 10087, 10094, 10262, 101/1986, 124/1986, 127/1986, 6/1987, 45/1987, 70/1987, 81/1987, 97/1987, 36/1988, 74/1988, 12/1989, 50/1989, 57/1989, 81/1989 and 24/1990.

s.18 Act No. 8/1991 No. 6280. Reprinted to No. 7596. Subsequently amended by Nos 9554, 9848, 16/1986 and 57/1989. 18. Restrictions on reports of alleged sexual offences In section 4 of the Judicial Proceedings Reports Act 1958 (a) for sub-section (1) substitute '(1) In this section "Publish" means (a) insert in a newspaper or other periodical publication; or (b) disseminate by broadcast, telecast or cinematograph; or (c) disclose by any means to any other person other than for a purpose connected with a judicial proceeding. "Sexual offence" means an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) of Division 1 of Part I of the Crimes Act 1958 or under any corresponding previous enactment or an attempt to commit any such offence or an assault with intent to commit any such offence. (1A) A person who publishes or causes to be published any matter that contains any particulars likely to lead to the identification of a person against whom a sexual offence is alleged to have been committed is guilty of an offence, whether or not a proceeding in respect of the alleged offence is pending in a court. (1B) If a proceeding in respect of the alleged offence is not pending in a court at the relevant time, it is a defence to a charge under sub-section (1A) for the accused to prove (a) that no complaint about the alleged offence had been made to a member of the police force before that time; or 84

Act No. 8/1991 s.18 (b) that the matter was published or caused to be published in accordance with the permission of (i) the Supreme Court, the County Court or the Magistrates' Court granted on an application by a person; or (ii) the person against whom the offence is alleged to have been committed. (1 c) If a proceeding in respect of the alleged offence is pending in a court at the relevant time, it is a defence to a charge under sub-section (1A) for the accused to prove that the matter was published or caused to be published in accordance with the permission of that court granted on an application by a person.'; (b) in sub-section (2) for "contravenes any of the provisions of sub-section (1) of this section shall be guilty of an offence and shall in respect of each such offence be" substitute "is guilty of an offence under sub-section (1A) is"; (c) sub-section (5) is repealed. 19. Power to close Supreme and County Court proceedings to the public (1) In section 19 of the Supreme Court Act 1986, after paragraph (d) insert ;or (e) cause undue distress or embarrassment to the complainant in a proceeding that relates to a charge for an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) of Division 1 of Part I of the Crimes Act 1958 or under any corresponding previous enactment or for an attempt to commit any such offence or an assault with intent to commit any such offence.". (2) In section 81 (1) of the County Court Act 1958 after "morality" insert "or to protect the complainant from 85 No. 110/1986. Amended by Nos 16/1987, 55/1987, 35/1989, 47/1989 and 57/1989. No. 6230. Reprinted to No. 57/1989.

s. 19 Act No. 8/1991 undue distress or embarrassment in a proceeding that relates to a charge for an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) of Division 1 of Part I of the Crimes Act 1958 or under any corresponding previous enactment or for an attempt to commit any such offence or an assault with intent to commit any such offence". 20. Consequential amendments (1) Section 18c of the Summary Offences Act 1966 is repealed. NO. 124/1986. (2) In paragraph (a) of the definition of "prostitution" in section 3 (1) of the Prostitution Regulation Act 1986 for "2A" substitute "37". 21. Transitional provisions (1) The Schedule contains transitional provisions. (2) The Schedule adds to, and does not take away from, the provisions of the Interpretation of Legislation Act 1984. 22. Statute law revision NO. 26/1989. (1) In section 464w (1) of the Crimes Act 1958 (a) for "(#)" substitute "(c)"; (b) for "(h)" substitute "(d)"; (c) for "(0" substitute "(e)"; (d) for "(/)" substitute "(/)". (2) Section 51 of the Crimes Legislation (Miscellaneous Amendments) Act 1989 is repealed. 86

Act No. 8/1991 Sch. SCHEDULE TRANSITIONAL PROVISIONS Section 21 The amendments made by the following provisions apply to a proceeding that occurs on or after the commencement of the provision, irrespective of when the offence to which the proceeding relates is alleged to have been committed (a) section 3 to the extent that it (i) abolishes the requirement of corroboration in sections 51 (5), 54 (2) and 55 (2) of the Crimes Act 1958 by repealing those sections; (ii) inserts a new section 61 in the Crimes Act 1958; (b) section 6 (c); (c) any provision of Part 3; (d) any provision of section 13,15,16(1) (a), (b) or (c) or 19. (1) Subject to clause 1 (a), the amendments made by section 3, 6 (a), 6 (b), 6 (a) or 6 (e) apply only to offences alleged to have been committed after the commencement of that section. (2) The amendments made by any provision of section 4, 5, 14, 16 (1) {d) or 16 (2) apply only to proceedings relating to offences alleged to have been committed after the commencement of the provision. (3) For the purposes of this clause an offence is not alleged to have been committed after the commencement of a provision if it is alleged to have been committed between two dates, one before and one after that commencement. NOTES 1. Minister's second reading speech Legislative Council: 10 October 1990 Legislative Assembly: 13 March 1991 2. The long title for the Bill for this Act was "A Bill to amend the law relating to sexual offences and for that purpose to amend the Crimes Act 1958, the Evidence Act 1958, the Summary Offences Act 1966, the Magistrates' Court Act 1989, the County Court Act 1958, the Supreme Court Act 1986 and the Judicial Proceedings Reports Act 1958 and for other purposes.". 3. Section headings appear in bold italics and are not part of the Act. (See Interpretation of Legislation Act 1984). 87