Resumed from 22 October 2019.
Comments and speeches by various members
HON ALISON XAMON (North Metropolitan) [6.13 pm]: I rise as the lead speaker for the Greens on the Criminal Law Amendment (Uncertain Dates) Bill 2019. We indicate that we are absolutely supportive of this legislation. It is an important bill. The aim of the bill is to remove an obstacle in prosecution arising from uncertainty about particular dates that may result in a miscarriage of justice for victims of crime. When prosecuting an offence, we know that certain dates are important, and the date on which the alleged offence was committed is important. That date determines whether the alleged act or omission was, in fact, an offence when it was committed and, if so, what penalty would apply upon conviction.
In this instance, the victim’s birthdate is also important. We know that some offences are age specific. For example, the Criminal Code contains sexual offences that relate specifically to victims under the age of 13, victims aged between 13 and 16, and victims aged over 16. For some other offences, the victim’s age can be an aggravating factor. For example, the Criminal Code makes it an aggravating factor if the victim of an assault, robbery or fraud is aged 60 or over. The accused person’s birthdate is also important. A person aged under 10 is not criminally responsible for any act or omission. A person aged under 14 is not criminally responsible for an act or omission unless it is proved that at the time they had capacity to know that they ought not to have done what they were doing. It is a defence to certain teenage sexual offences if the accused was not more than three years older than the victim and believed on reasonable grounds that the victim was aged over 16. The Children’s Court has exclusive jurisdiction to deal with criminal law matters if the accused was aged under 18 at the time of the offence.
It is not always easy to ascertain a person’s birthdate. The victim or offender’s birthdate might not have been registered. In some regional and remote Aboriginal communities, unregistered births are an issue. I note that in 2017–18, the Registry of Births, Deaths and Marriages registered 155 previously unregistered births, and that between 2011–12 and 2017–18, it registered 1 573 previously unregistered births. Similarly, the births of some migrants or refugees might not be registered, or documentation proving their birthdate might have been lost or even destroyed.
Another reason for uncertainty about dates is that historic offences or persistent offending across a time span can be very difficult for a victim to date accurately. This is the case particularly if the victim was a child at the time. The Leader of the House’s second reading speech gave some hypothetical examples of child sexual abuse that demonstrate that difficulty. The Attorney General’s second reading reply in the other place gave both actual and hypothetical examples. When a date is uncertain, it can be a barrier to criminal law proceedings being brought against the accused, or at least brought successfully. If the uncertainty is about whether the accused was aged under 18 at the time of the alleged offence, it can result in criminal proceedings being brought in the wrong court. Those proceedings then have to be discontinued and recommenced in the correct court. That causes stress and trauma for the victim, and a lot of expense for the taxpayer.
The bill addresses the problem of uncertain dates in four different situations. The first situation is when an indictable offence is committed on a date unknown during a period that spans a change in the applicable law. The bill provides that so long as the alleged act or omission was an indictable offence both before and after the change, albeit two different indictable offences, the accused can still be charged; and, if the case is proved, convicted and sentenced. If the two indictable offences have different penalties, the accused can be charged or convicted only of the charge that has the lower penalty. If the two indictable offences have the same penalty, the accused can be charged with, convicted of, and sentenced for either offence.
The second situation that the bill addresses is when a sexual offence is committed on a date unknown that spans the victim’s birthday. As already noted, the ages of 13 and 16 are significant to the determination of what the charge should be. The mechanism for dealing with this uncertainty is similar to the one I have just described for indictable offences. The bill provides that so long as the alleged act or omission was a sexual offence both before and after the victim’s birthday, albeit two different sexual offences, the accused can still be charged and, if the case is proved, convicted and sentenced. If the two sexual offences have different penalties, the accused can be charged, convicted and sentenced only for the offence that has the lower penalty. If the two sexual offences have the same penalty, the accused can be charged, convicted and sentenced for either offence. The bill goes on to define “sexual offence”; it is an offence of a sexual nature under a number of sections in the Criminal Code.
The third situation the bill addresses is one in which a sexual offence is committed against a victim whose age at the time is uncertain. Again, the mechanism is similar to those I just described. The bill provides that as long as the alleged act or omission was a sexual offence, whether the victim was or was not of a particular age at the time, the accused can still be charged and potentially convicted and sentenced. If the two sexual offences have different penalties, again, the lower one will apply.
The fourth situation the bill addresses is one in which it is uncertain whether the accused was aged under 18 at the time of the offence. This could be because the date of the offence is uncertain, or because the accused’s birth has not been registered. The bill provides that if the charge alleges that the accused might have been aged under 18 at the time of the offence, the Children’s Court will have jurisdiction, even if evidence later shows that the accused had, in fact, reached 18 years.
Debate adjourned, pursuant to standing orders.