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Modernising Victoria’s criminal laws

Feature Articles

Cite as: (2009) 83(06) LIJ, p.34

After 50 years and more than 1500 amendments, the Victorian Crimes Act is undergoing its first comprehensive overhaul.

By Rob Hulls MP

With successive amendments made over time, the Crimes Act 1958 has become less logical and coherent, and increasingly difficult to navigate and understand.

My 2004 Justice Statement identified the need to modernise Victoria’s criminal laws through a systematic review of the Crimes Act.1 This review will result in three separate Acts to deal with criminal procedure, investigation powers and offences.

The first of the three, the Criminal Procedure Act 2009 (the Act), received royal assent on 10 March 2009.

The Act addresses a number of current limitations with criminal procedure in Victoria including:

  • inconsistency and inaccessibility of procedure located in three different Acts – the Crimes Act, the Crimes (Criminal Trials) Act 1999 and the Magistrates’ Court Act 1989;
  • antiquated language carried over from 1864, such as “mute of malice” and “deemed to have put himself upon the country for trial”; and
  • obsolete and redundant provisions that no longer serve any useful purpose.

Procedural reforms

Underpinning the Act are some basic principles to overcome these problems and to achieve simpler, clearer and more workable laws.

First, the Act consolidates criminal procedure provisions found in the Crimes Act, Crimes (Criminal Trials) Act and Magistrates’ Court Act to ensure that the laws are easy to find and access.

The Act harmonises processes, where appropriate, so that similar processes across jurisdictions are consistent. Where required, the Act also rationalises provisions, so that multiple provisions are replaced with a single provision – for example, the power of a court to adjourn a proceeding is now a single provision in chapter 8 of the Act.

The Act modernises the law by using plain English drafting and consistency of terms. Practitioners will notice that in the Magistrates’ Court, the term “defendant” has been replaced with “accused” and in higher courts, “presentment” replaced with “indictment”. Latin and French terms such as nolle prosequi have been replaced with plain English terms.

Second, the Act introduces key reforms to improve the overall operation of the criminal justice system.

The Act operates on the basis that there is one criminal proceeding that commences on the filing of a charge sheet and continues through to appeal. This is different to the existing approach in R v Taylor [2008] VSCA 57 where the Victorian Court of Appeal held that existing legislation created several criminal proceedings rather than one continuous proceeding. Such clarity is important for transitional provisions and time limits.

At the summary stage, the Act introduces a set of initiatives designed to encourage early commencement and early resolution of summary proceedings. The new notice to appear provides an alternative to the summons process. As part of this process, the police may issue a notice to appear at the time of an alleged offence and then file charges within 14 days of the notice.

Pre-hearing disclosure has been simplified and clarified with a new preliminary brief and full brief replacing the current incomplete and inconsistent disclosure processes in the Magistrates’ Court Act.2 The new summary case conference is a flexible, out of court tool designed to encourage parties at an early stage in a summary proceeding to identify issues in dispute, obtain relevant disclosure and, where appropriate, negotiate an outcome.

In the Children’s Court, the importance of early intervention for child offenders is reflected in the reduction in time for filing a charge sheet in the Children’s Court from 12 months to six months.

At the trial stage, the Act clearly distinguishes between pre-trial and trial steps. It defines when a trial commences as when “the accused pleads not guilty on arraignment in the presence of the jury panel”: s210. Through the way it is structured, the Act provides a clear framework in which pre-trial issues may be determined, in part, by removing the requirement in s391A of the Crimes Act that a person be arraigned before the court determining a question of law.

There are a number of flexible trial management tools in the Act to assist in the efficient and fair conduct of trials. These include a new process which will enable an accused to admit in writing that they are guilty of the charges in the indictment rather than pleading to each charge at the beginning of a trial.

The Act also introduces the first major changes to appeals in Victoria in almost a century. Of particular significance is the new interlocutory appeals framework which will allow parties to seek leave to appeal to the Court of Appeal on decisions made either pre-trial or, in limited circumstances, during trial. This reform is designed to promote the resolution of issues during a proceeding and to reduce the number of post-conviction appeals and re-trials.

There are a number of other changes to appeals. In relation to sentence appeals, the Act expressly removes “double jeopardy” (arising from a person being sentenced on a second occasion) as a factor in Director of Public Prosecutions sentence appeals. Where a single judge determines leave to appeal, a new test has been introduced which provides that leave to appeal against a sentence “may be refused if there is no reasonable prospect that the Court of Appeal would impose a less severe sentence”: s280(2).

The new test follows the approach of the minority in R v Raad [2006] VSCA 67.

The Act simplifies the grounds of appeal and proviso for conviction appeals in s568(1) of the Crimes Act. It also codifies the long-standing practice that an appeal judge must warn an offender who appeals against their sentence that the Appeal Court intends to increase their sentence on appeal.

This is far from an exhaustive account of the changes made in the Act. Details on how to access the Act and related materials can be found at the end of this article.

Implementing the changes

The reforms have had the benefit of sustained consultation and expert advice from the Criminal Law – Justice Statement Advisory Group, including the LIV, members of the judiciary, the Criminal Bar, the Office of Public Prosecutions, Victoria Legal Aid and Victoria Police. Broader consultation on the Act was also carried out with government agencies and the community legal centres.

Another Justice Statement initiative was a commitment to improve the accessibility and consistency of legislation. A significant part of this commitment was the undertaking to introduce legislation consistent with the Uniform Evidence Act (UEA). The Evidence Act 2008 received royal assent on 15 September 2008. It represents the first stage of introducing the UEA into Victoria. Consequential and transitional legislation is intended for introduction into Parliament this year. This legislation will repeal most of the Evidence Act 1958 (the subject matter of which is dealt with in the Evidence Act 2008) and integrate the new legislation into the statute book. The two new Acts will operate together to improve our legal system through increased efficiency brought about, largely, through harmonisation with other state, territory and commonwealth legislation.

The anticipated commencement of both the Criminal Procedure Act and Evidence Act later this year means a significant amount of change for those working in the justice system, particularly in the criminal jurisdiction. The successful implementation of the reforms requires wide participation to ensure system-wide and effective change. Cultural change is essential if we are to get the full benefit of the new laws.

Without implementation, policies, no matter how sound, do not fully attain their objectives. The most well thought out reforms in the world won’t make much difference if the institutions and individuals that apply them are not ready for change.

With this in mind, my Department has worked closely with justice system agencies so that there is a coordinated and collaborative approach to implementing the changes. This approach builds on the strengths of all agencies through knowledge sharing and joint activities where appropriate.

We have established a group to oversee the implementation of reforms. The group includes representatives from the courts, the Judicial College of Victoria, the Office of Public Prosecutions, the Victorian Bar Council, the Criminal Bar Association, the LIV, Victoria Legal Aid and Victoria Police.

This group has identified opportunities to adopt a collaborative approach to promote consistent information and standards, support communication and avoid duplication of effort. This will increase awareness of the new laws across the justice system and help fully realise the benefits of the reforms to Victoria’s criminal procedure and evidence laws.

Reforms to evidence and criminal procedure represent major initiatives of my Justice Statement commitment to modernise our criminal justice system. The Criminal Procedure Act is the most comprehensive reform of criminal procedure in Victoria’s history.

The reforms and their successful implementation will give Victoria the laws it needs in the 21st century and the ability to adopt a collaborative approach to tackle the way the legal system operates. The cooperative implementation of the evidence and criminal procedure reforms provides a sound platform for this approach.

Those interested can contact the relevant unit within my Department on cljs@justice.vic.gov.au. I hope you will be as excited by the possibilities ahead as I am and I encourage your involvement throughout this process.

Copies of the Criminal Procedure Act 2009 and accompanying materials and the Evidence Act 2008 can be accessed at http://www.legislation.vic.gov.au. Materials that may assist in navigating the new legislation will be released later this year.

Training plans in hand

The LIV has committed to training members in the Criminal Procedure Act reforms.

The LIV will ensure adequate training is provided through the LIV Criminal Law Section.

This will occur either via CPD events, the LIV website or organising for DoJ officers to explain the reforms to members.

A panel of special guests will present an in-depth discussion regarding the reforms at the Friday, 31 July Criminal Law Conference.

For further conference information, see http://www.cpd.liv.asn.au/product.asp?pID=1787&cID=37.


ROB HULLS MP is the Deputy Premier of Victoria and Victorian Attorney-General.

1. Attorney General’s Justice Statement (2004), p24, see http://www.justice.vic.gov.au.

2. The three processes include the brief of evidence (s37 Magistrates’ Court Act), the outline of evidence (s37A Magistrates’ Court Act) and brief provided in accordance with cl 1A, Schedule 2 of the Magistrates’ Court Act.

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