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TASMANIA
__________
CRIMINAL CODE AMENDMENT (JUDGE ALONE
TRIALS) BILL 2021
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Schedule 1 amended (Criminal Code)
5. Repeal of Act
[Bill 50]-VI
2
CRIMINAL CODE AMENDMENT (JUDGE ALONE
TRIALS) BILL 2021
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
SHANE DONNELLY, Clerk of the House
24 November 2021
(Brought in by the Minister for Justice, the Honourable Elise
Nicole Archer)
A BILL FOR
An Act to amend the Criminal Code Act 1924
Be it enacted by Her Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Criminal Code
Amendment (Judge Alone Trials) Act 2021.
2. Commencement
This Act commences on a day to be proclaimed.
3. Principal Act
In this Act, the Criminal Code Act 1924* is
referred to as the Principal Act.
_______________________________________________________________
*No. 69 of 1924
[Bill 50] 3
Criminal Code Amendment (Judge Alone Trials) Act 2021
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4. Schedule 1 amended (Criminal Code)
Schedule 1 to the Principal Act is amended as
follows:
(a) by inserting the following sections after
section 361:
361AA. Trial by judge alone
(1) Despite section 361, a party to
proceedings in respect of a crime
may apply to the court for an
order to have the trial in respect
of the crime be determined by a
single judge in place of a trial by
jury.
(2) An application for an order under
subsection (1) in respect of a
crime -
(a) may only be made within
the 3-month period
immediately after the
accused person, in respect
of the crime, has been
committed to trial for the
crime; and
(b) may only be made by the
prosecutor for the crime
if -
(i) the accused
person, in respect
of the crime, has
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given informed
consent to the
proposed order; or
(ii) as part of the
application, the
prosecutor
requests that the
court make the
proposed order
without the
consent of the
accused person, in
respect of the
crime, in
accordance with
subsection (8);
and
(c) may not be made in
respect of an offence
against a law of the
Commonwealth.
(3) Despite subsection (2)(a), the
court may consider an application
made outside of the period
specified in that paragraph if the
court is satisfied that the
applicant has provided a
reasonable explanation for the
delay in the making of the
application.
(4) In determining whether to make
an order under subsection (1), the
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Criminal Code Amendment (Judge Alone Trials) Act 2021
Act No. of 2021
s. 4
court may inform itself in any
manner it thinks appropriate.
(5) The court must not make an order
under subsection (1) in respect of
a crime unless the court is
satisfied that -
(a) the accused person, in
respect of the crime, has
given informed consent in
accordance with
subsection (6) to the
proposed order; and
(b) it is in the interests of
justice for the order to be
made; and
(c) if the accused person has
been charged with more
than one offence in
addition to the crime and
the offences are to be
tried together, the order is
to relate to all of the
charges that are to be tried
together; and
(d) if there is more than one
accused person to be tried
together for the crime -
(i) an application has
been made, under
this section in
respect of the
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Act No. of 2021
s. 4
crime, in relation
to each accused
person to be tried
together for the
crime; and
(ii) each such accused
person has given
informed consent
to the proposed
order that is
relevant to the
accused person.
(6) For the purposes of
subsection (5)(a), the court may
only be satisfied that an accused
person has given informed
consent under this section to a
proposed order if the court is
satisfied of each of the following
in respect of the accused person:
(a) the accused person
understands the nature of
the proposed order and
the effect of an order
under this section, if
made;
(b) the accused person -
(i) has been provided
with legal advice
on the effect of the
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Act No. of 2021
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proposed order, if
made; or
(ii) has been offered,
or advised to
obtain, such legal
advice and has
refused the offered
legal advice or to
obtain the legal
advice;
(c) if the accused person has
been provided with legal
advice in accordance with
paragraph (b)(i), the legal
practitioner who provided
the legal advice to the
accused person has
certified in writing -
(i) that the legal
advice was
provided; and
(ii) whether the legal
practitioner
believes that the
accused person
has freely given
the informed
consent.
(7) In determining whether it is in the
interests of justice for an order to
be made under this section as
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required under subsection (5)(b),
the court -
(a) is to take into account
whether the crime to
which the order relates
involves an element or a
question of fact that -
(i) is more
appropriate to be
determined by a
jury to ensure that
community
standards and
opinions are
reflected in its
determination; and
(ii) includes, but is not
limited to, an
element relating
to, or a question
of, reasonableness,
dangerousness
indecency,
negligence or
obscenity; and
(b) may take into account any
other matter or
circumstance that the
court considers relevant.
(8) The court does not have to be
satisfied of the matters in
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subsection (5)(a) and (d) in
respect of an accused person if
the court is satisfied that there is a
significant risk that an offence
under section 63 of the Juries Act
2003 may occur if the accused
person is tried by jury.
(9) Unless otherwise specified and as
necessary in the context, if an
order is granted under this section
in respect of a crime, a reference
in this Act or any other Act to a
trial by jury is taken to include a
reference to a trial by a single
judge undertaken in accordance
with the order so made.
(10) If an application is made under
this section in respect of a crime
and is later withdrawn before the
application is determined, the
applicant may not make another
application under this section in
respect of the crime except where
the court is satisfied that
exceptional circumstances exist.
(11) An order made under
subsection (1) may only be
revoked if the court -
(a) is satisfied that the
information on which the
order was made was false
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or misleading in a
material particular; or
(b) otherwise considers that
there are reasonable
grounds to revoke it.
361AB. Appeal to Court of Criminal Appeal
in respect of application for trial by
judge alone
(1) A party to proceedings in respect
of a crime may appeal, to the
Court of Criminal Appeal, against
one of the following decisions of
the court:
(a) a decision of the court to
make an order under
section 361AA in respect
of the crime;
(b) a decision of the court to
refuse to make an order
under section 361AA in
respect of the crime.
(2) An accused person, in respect of
a crime, may only appeal a
decision of a court to make an
order under section 361AA in
respect of the crime if the order
was made without the informed
consent, within the meaning of
that section, of the accused
person.
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(3) An appeal under this section is to
be by way of a new hearing.
(b) by inserting the following subsection
after subsection (5) in section 383:
(6) If an indictment is tried by a
single judge in accordance with
an order under section 361AA -
(a) the judge may return any
verdict or make any
finding under this section
that a jury may have made
if the indictment had been
tried by a jury; and
(b) before returning a verdict
or making a finding under
this section, the judge is
to -
(i) take into account
any warning that
would have been
given to a jury
before returning
the verdict or
making the
finding; and
(ii) as far as is
practicable, use
the same
principles of law
and procedure as
would be used by
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a jury in returning
the verdict or
making the
finding; and
(c) if the judge returns a
verdict or makes a finding
under this section, the
judge is to record in the
judgement for the trial the
principles of law applied,
and the findings of fact
relied on, by the judge
when returning the verdict
or making the finding.
(c) by inserting the following paragraph after
paragraph (ba) in section 401(2):
(bb) in respect of an indictment tried
by a single judge in accordance
with an order under section
361AA -
(i) against a decision of a
question of law or a
question of fact; or
(ii) against a verdict, on the
ground that it is
unreasonable or cannot be
supported having regard
to the evidence; or
(d) by inserting the following section after
section 464:
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464A. Application of Criminal Code
Amendment (Judge Alone Trials) Act
2021
For the avoidance of doubt, the
amendments to this Act made by
the Criminal Code Amendment
(Judge Alone Trials) Act 2021
apply in relation to an offence
committed before the day on
which that Act commences if a
jury has not been empanelled in
respect of a trial by jury for the
offence.
5. Repeal of Act
This Act is repealed on the first anniversary of
the day on which it commenced.