Public Defenders

Criminal Legislation - 2006


Andrew Haesler SC
Deputy Senior Public Defender
(I wish to acknowledge the invaluable assistance of Jennifer Wheeler, legal researcher at the Public Defenders.)

This paper was presented at the NSW Young Lawyers Conference on 17 March 2007

For the past few years I have come to this Conference predicting the dire consequences that will flow from the latest batch of criminal law 'reforms'.

I have spoken of the 'broccoli principle' - the rule that police can get no new laws until they use the ones they've got. I have spoken of the 'Haesler principle' - no new laws until an old one is repealed.

I have taken you up-river into the 'heart of darkness' that is criminal law reform in this State.

If ever there were a more depressing, downbeat series of lectures. I for one wouldn't pay good money to attend - points or no points! So, this year I promise - I will include something positive and upbeat- I promise!!

Before I do however I had better start with the very bottom line and a distressing and depressing bottom line it is too.

As at 4 March 2007, there were 9,605 prisoners The maximum during the proceeding week was 9,623 prisoners. It included 21 juveniles at Kariong Detention Centre but not those in Juvenile Justice custody and over 742 subject to periodic detention orders. See Corrective Services Commission Custody Based Offender Management Report - 4/3/2007. The maximum during the proceeding week was 9,623 prisoners in custody in New South Wales (up over 570 from a year earlier); 653 were women; 1,945 (20.7%) were indigenous Australians.

A staggering 2,272 had not been convicted of a crime but were on remand awaiting finalisation of their cases by the Courts.

Was it necessary that every one of these people be gaoled? Most had family and friends whose lives were diminished by their absence and their incarceration. Many were, and will be, if released, capable of leading productive lives. Of those that are not, many are ill or disabled in some significant way: they deserve help not imprisonment.

Victims of violence deserve support too. Every member of the community expects and wants to go about their business without risk of assault, injury or interference with or theft of their property. No sane society could expect otherwise. However, is it sane to simply lock up more and more citizens, if, by locking them up, we do not make our lives and property safer?

New Laws 2006

So what did 2006 bring us?

Here is a list and short summary of most of the criminal laws passed in the last year. As always, there can be no substitute for checking the wording of each section and each amendment yourself.

I break the provisions up into six categories: Commonwealth laws; New Crimes; Sentencing; Procedure ; Law enforcement and investigation; and what can only be called-' 'Other' and 'Other atrocities' '.


Statute Law Revision Act2006 - Commenced 23 March 2006

At last some repeals: But only of some very obscure and obsolete acts such as the Indus Basin Development Fund Act Agreement Act 1960. There is nothing here of a criminal nature, but it shows it can be done.

The Crimes Act 1914 was amended to make offences against s. 474.19 Criminal Code Act (using a carriage service for child pornography material) a serious criminal offence for the purpose of controlled operations (s. 15 HB Crimes Act 1914).

Fisheries Legislation Amendment (Foreign Fishing Offences) Act2006 - Commenced 12 December 2006

If anyone has ever had the need to consult this legislation, they can look it up again.

Crimes Amendment (Bail and Sentencing) Act2006 - Commenced 13 December 2006

A number of cases from the Northern Territory, notably R v GJ (2005) 196 FLR 233, [2005] NTCCA 20, raised the ire of media pundits about the use that could be made in mitigation of penalty of Aboriginal customary law. As is often the case, distorted reports of the facts lead to a media outcry, which politicians determined to exploit. The Federal Government here was the worst offender. The new laws add a number of provisions into the Crimes Act 1914. A new s.15AB sets out the matters to be considered when making a bail decision in federal matters. It specially notes that a court must not take into consideration any formal of customary law or cultural practise for excusing or justifying the commission of the offence. Such practices cannot aggravate the criminal behaviour concerned. These provisions apply to all offences both before and after the Act commences.

Section 16A sets out the matters that must be taken into account on sentencing. Section 16A(2) (m) ' cultural background' has been deleted. As with bail the new 16A(2A) notes that the court must not take into consideration any formal of customary law or cultural practise for excusing or justifying the commission of the offence. It also notes that such practices cannot aggravate the criminal behaviour concerned.

Section 19B, relating to discharge without conviction, has been similarly amended. Sections 23WI, 23WO and 23 WT, relating to forensic procedures have also had reference to cultural background and religious beliefs removed.

These sentencing provisions only apply to offences occurring after the Act commenced.

NEW SOUTH WALES For more details see NSW Legislation site:


Summary Offences Amendment (Display of Spray Cans Regulation) Act 2006 - Commenced 1 January 2006

It's OK to display cans of transparent and colourless paint!!!

Crimes Amendment (Organised Car and Boat Theft) Act 2006 - Commenced 1 September 2006

Section 154AA Crimes Act 1900 - car stealing is repealed and a new Subdivision '5A Offences relating to theft of motor vehicles and vessels' is inserted (154F - 154J). The amendments:

(a) create several new offences relating to theft of motor vehicles and vessels, including an offence of facilitating an organised car or boat rebirthing activity,

(b) repeal and re-enact the offence of car stealing, so that it extends to vessels,

(c) extend other existing offences relating to stolen motor vehicles or vehicle parts to stolen vessels or vessel parts.

Crimes Legislation Amendment (Gangs) Act 2006 - Commenced 15 December 2006

Assault and other actions against police officers are further criminalised with additional and increased penalties (s.60 (1A), s.60 (2A) and s.60 (3A)). Similarly, higher maximum penalties apply to malicious damage offences committed during a 'public disorder'.

A new Part 3E is inserted in the Crimes Act 1900 for offences committed as part of a 'criminal group'. There are a number of related amendments to the Crimes Act such as consorting (s. 546A(2) and recruiting children to gangs (s. 351A) and to the Law Enforcement (Powers and Responsibilities) Act 2002 to allow police to disperse groups (s. 87MA) and deal with 'fortified premises'(Part 16A).

Drug Misuse and Trafficking Amendment Act 2006- Most provisions commenced on 24 July 2006

Major changes to Drug Misuse And Trafficking Act include:

* A new definition of an 'ice pipe' (s. 11A)
* Creation of new offences relating to the exposure of children to the manufacture of drugs and procuring a child's involvement in the supply of drugs (s.24, 25 & 33AC).
* Changes to the definition in Schedule 1 of methadone in oral liquid form.

Crimes and Courts Legislation Amendment Act 2006 - Commenced 29 November 2006

There is a new offence s. 1B Drug Misuse and Trafficking Act 1985 - relating to possessing tablet presses - $2,200 or imprisonment for 2 years, or both.

Sections 36Y and 36Z Drug Misuse and Trafficking Act 1985 were amended to create new aggravated versions of allowing the use of premises as drug premises or organising drug premises (exposure of child to prohibited drugs or prohibited plants, a drug supply process or equipment capable of being used to administer prohibited drugs or plants).


Crimes (Sentencing Procedure) Amendment Act2006 - Commenced 26 May 2006

Changes to s. 21A (2) and the table for standard non-parole periods in the Crimes (Sentencing Procedure) Act 1999 make the fact that victim was bus driver, other public transport worker or volunteer, such as surf life saver, an aggravating factor on sentence The new provisions apply unless person had already been convicted or pleaded guilty before commencement of the Act.

Crimes (Administration of Sentences) Amendment Act 2006 - Commenced 1 December 2006

A number of changes were made to the principle Act, most were procedural but others relate to:

* Transfers to and from juvenile correctional centres (s.40),
* Lifetime supervisions of parole (s. 128B),
* Allowing the Parole Authority to reinstate revoked periodic detention orders (s. 164A).

Crimes and Courts Legislation Amendment Act 2006 -Commenced 29 November 2006

A new s.42 Children (Criminal Proceedings) Act 1987 makes it clear that actions in relation to a failure to comply with a good behaviour bond may be taken even if the bond has expired, if the action relates to matters arising during the term of the bond. This parallels section 100 of the Crimes (Sentencing Procedure) Act 1999.

A new s.3(1)(ba) Crimes (Appeal and Review) Act 2001 fixes a problem that arose in the CCA decision of Barrett v Director of Public Prosecutions [2006] NSWCCA 210 in relation to attempts to appeal the decision to revoke a bond, including a suspended sentence bond. The order revoking of a good behaviour bond and any order made as a consequence of that revocation is treated as part of the sentence of a person and can be appealed under that Act. The amendments together with those to the Crimes (Sentencing Procedure) Act 1999 and the Criminal Appeal Act 1912 reverse some of the problems created by the decisions of the Court of Criminal appeal in R v Tolley [2004] NSWCCA 165, R v Graham [2004] NSWCCA 420 and Barrett v Director of Public Prosecutions [2006] NSWCCA 210.

Section 10A Crimes (Sentencing Procedure) Act 1999 allows a person to apply for an annulment in respect of a finding of guilt or an order made as a consequence of a finding of guilt (whether or not the court proceeds to formally convict or sentence).

The new s.10A Crimes (Sentencing Procedure) Act 1999 allows a Court has power, on convicting a person, to dispose of the proceedings without imposing any further penalty. Such disposal can be appealed against under the Criminal Appeal Act 1912 and the Crimes (Local Courts Appeal and Review) Act 2001.

Suspended Sentences: Amendments to sections 12(3) and s.99 Crimes (Sentencing Procedure) Act 1999, transfer the requirement to set a non-parole period from the court imposing the suspended sentence to the court revoking the suspended sentence after a breach. Now when a suspended sentence is imposed the court simply states the total sentence. What happens thereafter need only be considered if there is a breach. The corresponding change was not made to s.33(1B) Children (Criminal Procedure) Act 1985. So when children get a suspended control order the non-parole period is still required to be fixed before a control order is made, suspended and a bond given.

The definition section, s.2(1)(ca) Criminal Appeal Act 1912 was changed to ensure that the revocation of a good behaviour bond and any order made as a consequence of that revocation is treated as part of the sentence of an offender and can be appealed

Section 5AF Criminal Appeal Act 1912 was amended to ensure that in appeals from the Drug Court:

* no appeal, by either Crown or offender, against initial sentence imposed by Drug Court
* on appeal against final sentence imposed on Drug Court, CCA may impose a greater sentence than the initial sentence imposed by the Drug Court, despite section 12 (4) of the Drug Court Act 1998
* appeals by offenders against sentences on indictment to be heard by CCA constituted by 2 or 3 judges
* Crown appeals against sentences on indictment to be heard by CCA constituted by 3 judges
* all appeals against sentences in matters dealt with summarily to be determined by single judge of Supreme Court, although may be remitted to CCA

Division 1 and Division 1A Drug Court Act 1998, which provided, individually, the conditions for acceptance into a drug program during proceedings for an offence and proceedings for breach of bond are combined.

When imposing an initial sentence Drug Court not obliged to fix a non-parole period or comply with other provisions under the Crimes (Sentencing Procedure) Act 1999 about commencement dates, release dates and conditions of parole.

The Drug Court may also deal with proceedings in relation to the revocation of good behaviour bonds.


Criminal Procedure Amendment (Prosecutions) Act 2005- Commenced 21 September 2005 (the date the Bill was first introduced into Parliament)

In R v Halmi (2005) NSWLR 263 the Court of Criminal Appeal ruled that a trial was not valid and set aside the guilty verdict as Crown Prosecutor did not sign the indictment. Private counsel briefed by the DPP had signed it. An amendment to the Criminal Procedure Act corrects the problem and retrospectively validates all indictments signed after 13 July 1987.

Criminal Procedure Amendment (Sexual Offence Case Management) Act 2005 -Commenced 1 December 2005

A new s 130A Criminal Procedure Act means that pre-trial orders made by a judge bind subsequent judges unless 'in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding'. It applies only to pre-trial orders made after 1 December 2005.

Criminal Procedure Further Amendment (Evidence) Act 2005 -Commenced 12 August 2005 - Part 2A Criminal Procedure Act commenced 25 November 2005

An updated definition of what is a prescribed sexual offence in inserted in s.3 (1) Criminal Procedure Act.

The new section 275 says that a court must disallow a question in cross-examination, disallowable question is misleading or confusing, unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, or is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate, or has no basis other than a sexist, racial, cultural or ethnic stereotype Section 41 Evidence Act 19995 (NSW) notes that in any other trial a question 'may' be disallowed..

Part 2A Criminal Procedure Act deals with sensitive evidence. A prosecuting authority is not required and cannot be required to give an accused person a copy of anything the prosecuting authority reasonably considers to be sensitive evidence. Procedures for giving access to sensitive evidence to accused person are set out.

Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 - Commenced 1 January 2007

The Criminal Procedure Act 1986 has been amended in the following areas:


When a witness is directed to attend a committal was changed to make, the written statement of that witness is now admissible, by consent or if there are 'substantial reasons' to do so (s. 91(4)).

Section 93 (1) Criminal Procedure Act 1986 now states that in any committal proceedings involving an offence of violence, the Magistrate may not direct the attendance of an alleged victim under s.91, even if the parties to the proceedings consent to the attendance, unless satisfied there are special reasons why the alleged victim should, in the interests of justice, attend to give oral evidence.

Child complainants in proceedings for certain child sexual assault offences can never be directed to attend the relevant committal proceedings.

A new s.275B Criminal Procedure Act 1986 provides that witnesses in criminal proceedings who have difficulty communicating are entitled to use a person or a communication aid to assist in giving evidence

A new s.292(5) Criminal Procedure Act 1986 makes it clear that a non-publication order includes broadcasts on radio or television or the dissemination of evidence by any other electronic means such as the Internet. While the new s.292(6) requires the court to consult with the complainant when determining whether to make an order for non-publication.

Section 292(7) Criminal Procedure Act 1986 allows a non-publication order to continue after proceedings have been concluded.

Section 294 was amended to say that a judge:

(2)(c) must not warn the jury that delay in complaining is relevant to the victim's credibility unless there is sufficient evidence to justify such a warning.

(3) However, if:

(a) the delay in making a complaint by the person on whom the offence is alleged to have been committed is significant, and

(b) the Judge is satisfied that the person on trial for the offence has suffered a significant forensic disadvantage caused by that delay, and the Judge may inform the jury (but only if a party to the proceedings so requests) of the nature of the disadvantage and of the need for caution in determining whether to accept, or give any weight to, the evidence or question referred to in subsection (1).

(4) For the purposes of subsection (3) (b), the factors that may be regarded as establishing a significant forensic disadvantage include, but are not limited to, the following:

(a) the fact that any potential witnesses have died or are not able to be located,

(b) the fact that any potential evidence has been lost or is otherwise unavailable.

(5) The mere passage of time is not in itself to be regarded as establishing a significant forensic disadvantage.

The new section is clearly designed to tip the scales toward the complainant and the prosecution. Whereas the High Court in Crofts v The Queen (1996) 186 CLR 427, spoke of the need for balance the new amendments make no such concession. There may be also be some diminution of the Longman warning ( Longman v The Queen (1989) 168 CLR 79). Often, for abundant caution it was given in every case of delay. This caution is no longer required. However in any case where the delay is significant, and disadvantage can be demonstrated, s. 294 should be able to be readily complied with and the jury informed of the need for caution Section 294 does not prevent this information being given in the form of a warning.

In a similar vein s. 294AA attempts to prevent a Judge giving the Murray direction about a complainant's evidence ( Murray v The Queen (1987) 11 NSWLR 12 at 19):

(1) A judge in any proceedings to which this Division applies must not warn a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses.

(2) Without limiting subsection (1), that subsection prohibits a warning to a jury of the danger of convicting on the uncorroborated evidence of any complainant.

(3) Sections 164 and 165 of the Evidence Act 1995 are subject to this section.

The situation is now similar to that of child witnesses (s. 165B Evidence Act 1995 (NSW))

Cross-examination by and unrepresented accused: In a further attempt to encourage lawyers to assist the Court in case where unrepresented accused are prohibited from cross-examining complaints in sexual assault trials s.294A now provides for immunity for lawyers who ask questions a complainant instead of an unrepresented accused. I take the view that any 'assistance' in such circumstances would not be compatible with the role of a lawyer. It would create the wrong impression that the lawyer had some input into the questioning when in fact there is a prohibition on them doing so. If the Court needs a questioner the State can pay for someone to do it (for example a Judge's Associate or the Clerk of the Court).

Re-trials: The provisions relating to sexual assault retrials, which allow admission of transcripts or recordings of the evidence and cross-examination, were fiddled with again. New sections 306H-306L Criminal Procedure Act 1986 permit the admission of a record of evidence given by a complainant in a sexual offence proceeding in any new trial that is listed following a trial that has been discontinued.

Jury Amendment (Verdicts) Act 2006 - Commenced 26 May 2006

The Jury Act now allows for majority verdicts where the jury has been deliberating for at least 8 hours, and the court is satisfied, after taking evidence of oath from one or more jurors, that a unanimous decision is unlikely. It does not apply to Commonwealth offences.

A majority verdict means:

(a) a verdict agreed to by 11 jurors where the jury consists of 12 persons at the time the verdict is returned, or

(b) a verdict agreed to by 10 jurors where the jury consists of 11 persons at the time the verdict is returned (s.55).

Where a jury in criminal proceedings has retired, and the jury consists of 11 or 12 persons, the court in which the proceedings are being tried may discharge the jury if it finds, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict or a majority verdict under section 55F.

A court may not discharge the jury under this section if it finds, after examination on oath of one or more of the jurors, that it is likely that the jurors will reach a majority verdict (s. 56).

Law Enforcement and Investigation

Law Enforcement (Controlled Operations) Amendment Act 2006 - Commenced 9 February 2007

Retrospective authority can now be granted, by the Chief Executive Officer of a law enforcement agency, for unlawful acts done during controlled operations. In determining whether evidence should be admitted or excluded in any proceedings, the fact that the evidence was obtained as a result of a person engaging in criminal activity is to be disregarded (new s. 3A). (Think about it!)

Engaging in conduct that involves the commission of a sexual offence against any person cannot be authorised (new s.7 (1)(c)).

There are also new provisions in relation to cross- border controlled operations.

Confiscation of Proceeds of Crime Amendment Act 2005- Commenced 28 October 2005

A number of amendments and additions were made to the Confiscation of Proceeds of Crime Act, Crimes Act, Civil Liability Act and Forfeiture Act relating to seizure and restraint and forfeiture of proceeds of crime and money laundering. New offences and evidentiary provisions make it easier for the State to seize proceeds of crime.

Police Powers Legislation Amendment Act 2006 - Commences 23 February 2007

An amendment to the Police Powers (Drug Detection in Border Areas Trial) Act 2003 revives the drug detection scheme that operated under the Police Powers (Drug Detection in Border Areas Trial) Act 2003 which allowed police, under authority of a drug detection warrant issued by a Judge, to exercise certain powers in border areas for the purpose of drug detection operations. These included powers to establish checkpoints in a search area, to stop vehicles at the checkpoints and to use dogs to carry out general drug detection in relation to vehicles.

There are two principal changes to scheme:

1. It will operate under an authorisation issued by the Commissioner of Police or another designated officer rather than under a warrant-based system.

2. The scheme extends to all parts of the State that are outside the metropolitan areas of Sydney, Newcastle and the Illawarra.

The scheme will have effect for 18 months.

Crimes (Forensic Procedures) Amendment Act 2006 - Commenced 23 February 2007 and 15 March 2007

Amendments to s.97 Crimes (Forensic Procedures) Act 2000 commenced 23 February 2007 designed to facilitate communication between jurisdictions of information on the State's DNA database system. It deals particularly with the communication of such information for the purpose of identifying missing or deceased persons.

A new Part 7A commenced on 15 March 2007. It allows for DNA testing of persons who have previously been convicted of serious indictable offences in circumstances in which they are subsequently charged with the commission of an indictable offence. The provisions parallel those of Part 7 (which deals with testing those serving sentences for serious indictable offences Known as 'backcapture'.

Section 57 is amended to abolish the requirement for video recording of forensic procedure that consists solely of taking of suspect's photograph.

Self-administration of buccal swabs is now allowed (amendments to sections 3, 5, 13, 17, 21, 50, 53, 61, 62, 63, 65 and 69, insertion of s.51A and repeal of ss.19, 49A and 64). These sections alter slightly the definitions of non-intimate and intimate forensic procedures and attempt to clarify the meanings of those definitions.

Amendments to sections18, 69 and 70 clarify the circumstances in which a senior police officer may order the taking of a hair sample from a suspect rather than a buccal swab.

Amendments to sections 69 and 70, and repeal s.71 remove limitations on what a senior police officer must take into account in determining whether or not to order the carrying out of a non-intimate forensic procedure. Although they have to decide is 'whether this Act would authorise the forensic procedure to be carried out in the absence of the order'.

Section 74 was amended, as of 1 July 2007, to make it clear that samples can be ordered to be taken from an offender detained in a correctional centre or other place of detention in relation to a serious indictable offence even if they are a child.

Amendments to sections 76, 77 and 80 provide that a forensic procedure may be carried out on a child volunteer only with the informed consent of the child.

Other changes provide that a person has merely to identify as, and does not have to demonstrate that he or she actually is, an Aboriginal person or Torres Strait Islander in order to gain the protections available to Aboriginal persons and Torres Strait Islanders.

A suspect can now waive his or her right to have an independent person present while a forensic procedure is carried out, subject to the right of the police officer carrying out the procedure to insist that an independent person be present (sections 10, 15 and 57).

A new s.24, the repeal of s.25, and amendments to sections 26 and 32 give further 'guidance' to Magistrates about what they should have regard to when determining whether or not to make an order for the carrying out of a forensic procedure.

Amendments to sections 3 and 94, and a new s.87 attempt to clarify what a person must do in order to comply with requirements to destroy forensic material.

The definition of 'responsible person' in section 3 (1) enables the regulations to set out which person is taken to be the person responsible for the State's DNA database system.

A revised s.27 allows for an application to be made to a Magistrate for the carrying out of not only a second, but also a subsequent, forensic procedure after a first has been ordered.

A revised s.60 says that a suspect from whom a forensic sample has been obtained is entitled to be given a copy of the DNA profile derived from the sample and a statement as to whether a match has been found between that DNA profile and any other DNA profile on the State's DNA database system. The new section also makes it clear that it is not necessary to supply the suspect with anything while it would be a source of embarrassment to a victim of any offence.

Amendments to sections 13, 69 and 77 note that persons from whom forensic samples are to be taken must be informed that information from the sample may be compared with information from interstate DNA database systems.

Amendments to sections 47 and 52 make it clear that that force may not be used in connection with forensic procedures carried out on persons who volunteer to provide forensic samples.

New sections 11 and 12 clarify the circumstances in which a police officer may seek consent of a suspect to the carrying out of a forensic procedure.

The new s.20 clarifies the circumstances in which a police officer may order the carrying out of a non-intimate forensic procedure on a suspect.

The Act also amends the Law Enforcement (Powers and Responsibilities) Act 2002 (commences 1 July 2007)

Changes to s.117 will make it clear that that time 'reasonably required' to carry out a forensic procedure on a person, or to prepare, make and dispose of an application for an order for the carrying out of such a procedure, do not form part of any investigation period during which the person may be detained under Part 9.

Section 133 was amended to make it clear the section does not authorise a police officer to take samples of tissue for the purpose of establishing a suspect's identity under that section. The amendment does not affect any power to take samples of tissue, or to require the provision of samples of tissue, for the purposes of, and in accordance with the requirements of, any other Act or law (such as the Crimes (Forensic Procedures) Act 2000).

'Other' and 'Other Atrocities'

Crimes (Serious Sex Offenders) Act 2006 - Commenced on 3 April 2006

This is the first law in NSW allowing for detention of a person after they have served their sentence. Based substantially on Queensland legislation that was found to be constitutional by the High Court in Fardon v The Queen (2004) 78 ALJR 1519, [2004] HCA 46. In dissent, Kirby J described the legislation as 'inconsistent with the traditional judicial process'(at [176]).

The new provisions allows the Attorney General to apply to the Supreme Court for orders either keeping a convicted sex offender in custody or putting them under supervision orders after release. Only one application has been heard to date. It was not finalised as the respondent was deported prior to the final hearing.

Crimes (Appeal and Review) Amendment (DNA Review Panel) Act 2006 - Commenced 23 February 2007

A DNA Review Panel has been established (Part 7 Crimes(Appeal and Review) Act. A prisoner serving a sentence has a limited right to apply for review of their conviction. The DNA Panel may refer case to CCA for review of conviction if they are of the opinion there is reasonable doubt as to guilt of convicted person.

The panel has no coercive power. Although it can 'require' the police to provide information and material to it, it cannot order police to reinvestigate a matter and it cannot compel the retention of DNA material.

In addition, Part 13A Crimes Act - Review of Convictions and Sentences - has been transferred to Part 7 Crimes (Appeal and Review) Act 2001 with minor amendments.

Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 - Commenced 15 December 2006

This is another example of a media 'outrage' leading to law 'reform'. This time it is New South Wales who have led the way despite the 'outrage being based the Queensland case of Carroll v The Queen (2002) 212 CLR 635. The time honoured and previously 'fundamental' rule that an acquittal is inviolable has been removed. The boast is that the new laws 'will that will help bring the criminal law of this State into the twenty-first century'. Hon. John Della Bosca (Minister for Finance, Minister for Commerce, Minister for Industrial Relations, Minister for Ageing, Minister for Disability Services, and Vice-President of the Executive Council) Hansard Legislative Council 17 Oct 2006 [2603].

A new Part 8 Crimes (Appeal and Review) Act provides that where a person has been acquitted of an offence punishable by imprisonment for life or for a period of 15 years or more and it can be shown that the trial was 'tainted' by the commission of an 'administration of justice offence' such as bribery or perjury, application can be made to the Court of Criminal Appeal for a re-trial.

Police cannot undertake reinvestigations of acquitted persons without the permission of the Director of Public Prosecutions.

Crimes Amendment (Apprehended Violence) Act 2006 - Not yet commenced

Part 15 A Crimes Act 1900 has been rewritten. The reforms arise primarily out of the New South Wales Law Reform Commission's report into Part 15A of the Crimes Act 1900. Changes include: new definitions; a revised test for granting an apprehended domestic violence order; provisions for referral to mediation for apprehended personal violence order; new provisions concerning the granting of telephone interim orders; limited police powers of detain and arrest for the purposes of serving an order; new provision for property recovery orders; the abolition of the complaints and summons process; a revised police discretion not to make an application; and extended duration for final orders.

Compulsory Drug Treatment Correctional Centre Act 2004 - Commenced on 21 July 2006

The Drug Court Act 1998 has been amended to allow for orders to be made for (eligible and convicted) offenders to be sent to the new Drug Court Treatment Correctional Centre. The new Centre opened on 23 August 206 and is located at Parklea Gaol. It is designed to provide a comprehensive program of compulsory treatment and rehabilitation under judicial supervision and promote reintegration into society (s. 106B Crimes (Administration of Sentences) Act 1999.

A three-stage program: full-time detention, semi open detention and community custody is proposed. Eligibility is determined by application of s 5A Drug Court Act 1998 and clause 4A Drug Court Regulations.

Bail Amendment (Lifetime Parole) Act 2006 - Commenced 27 October 2006

The new 8E Bail Act provides for a presumption against bail for persons on lifetime parole who commit offences carrying prison terms. It applies to offences committed before commencement of section and to the review of bail decisions made before commencement of section. At least they didn't have the hide to call it 'Lewthwaite's Law'


Crimes and Courts Legislation Amendment Act 2006 -Commenced 29 November 2006

Section 8A Bail Act was amended to include presumption against bail for following drug offences:

(a) enhanced indoor cultivation of prohibited plants for a commercial purpose,

(b) enhanced indoor cultivation of prohibited plants when a child is exposed to the cultivation process and either a commercial quantity of the plants is involved or the activity is carried out for a commercial purpose,

(c) manufacture or production of a commercial quantity of a prohibited drug when a child is exposed to the manufacturing process.


Some of you may ask, 'what happened to the positive upbeat bits?'There are none. I lied!!

Andrew Haesler SC
7 March 2007