WA Introduces Bill To Resolve Uncertain Date Issues For Child Sexual Abuse Convictions

Thursday 27 June 2019 @ 2.54 p.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

On Thursday 20 June 2019, the WA Attorney General, the Hon. John Quigley (the Attorney General), introduced the Criminal Law Amendment (Uncertain Dates) Bill 2019 (the Bill) into the WA Parliament. According to the Attorney General's Media Release, the Bill seeks to "improve the administration of justice for victims of child sexual abuse and ensure perpetrators are held to account".

In broad terms, the Bill is intended to remedy situations where uncertainties as to particular dates prevent a person being found guilty of a crime that is otherwise proved to have occurred. The Bill seeks to counter the position that may arise under current legislation, where the date on which an offence occurred needs to be established with sufficient certainty to enable an offender to be charged and successfully convicted. This situation can also become a problem where allegations of age-specific sexual offences may span a victim's birthday, and where legislation was changed around the time of the allegations.

According to the Attorney General, the amendments proposed by the Bill seek:

". . . resolve technical impediments to convicting perpetrators for serious offences that currently prevent prosecution and conviction, with particular regard to historical sexual offences against children".

The amendments proposed by the Bill are also intended to address a current anomaly, where neither the Children's Court, nor the Magistrates or District Courts, have jurisdiction where it is uncertain whether an accused was a child, or adult, at the time of the commission of an offence.

According to the Attorney General's Media Release, the Bill and its proposed amendments represent further improvements by the Government that flow from the Royal Commission into Institutional Responses to Child Sexual Abuse.

Proposed Changes in Detail

The Bill seeks to ensure that a conviction can be secured even where there is: 

  • uncertainty as to the date of the commission of an indictable offence, 
  • uncertainty of the age of the victim at the time of the commission of a sexual offence, or 
  • uncertainty as to whether an accused was a child at the time of an offence. 

The amendments proposed by the Bill will make changes to the Criminal Code of WA and the Children’s Court of Western Australia Act 1988.

Criminal Code WA Amendments

In Part 2, the Bill provides for a new Chapter IIB to be inserted into the Criminal Code of WA. The new part will provide that a person may be charged and convicted regardless of when in a relevant period an indictable or sexual offence occurred, or regardless of the exact age of the victim at the time of a sexual offence. This will be achieved by providing that the accused person may be charged in respect of the relevant offence with the lesser maximum statutory penalty. Following from this, if it can be proved that the offence occurred at some time during the relevant period in situations in which there is uncertainty as to the exact date, the person may be convicted and sentenced in respect of the relevant lesser penalty offence. The same approach is also intended when there is uncertainty as to the particular age of a victim at the time of a sexual offence. The aim is to improve access to justice for victims of serious crimes and is, according to the Attorney General, "consistent with the principle that an accused is not exposed to a harsher penalty than existed at the time of the offence".

Currently the Criminal Code of WA requires that the date on which an offence occurred needs to be established with "sufficient certainty to enable an offender to be charged and successfully convicted". This means a person cannot be convicted under a provision that did not exist at the time an offence occurred. According to the Attorney General in his second reading speech, this is normally not a problem:

"But it is often a feature of child sexual abuse cases, given the historical nature of the offending and the tender age of the child, that it is difficult for the victim to recall specific dates of the abuse. Unfortunately, there have been a number of cases in Western Australia in which perpetrators have evaded conviction because it could not be conclusively established when the offending took place. This represents a serious miscarriage of justice."


According to the Attorney General's second reading speech, the proposed section 10L (Charge of indictable offence committed in period when written law amended) is intended to address the problems arising where an indictable offence has occurred at sometime in a period during which a relevant written law was amended (which can include the law being repealed and replaced). Under the current laws, if the conduct in question is an offence under both the old and new provisions, a perpetrator cannot be convicted if it cannot be established which provision was in force at the time of the alleged offence. Section 10L provides that an accused may be charged in respect of the offence which has the lesser maximum statutory penalty, whether the penalty is under the old law or the new amended law. If it can be proved that the offence occurred sometime in the relevant period, the person may then be convicted and sentenced in respect of the lesser penalty offence.

The proposed section 10M (Charge of sexual offence committed in period when victim has birthday) deals with problems arising when a sexual offence has occurred sometime in a period during which the victim had a relevant birthday and may arise where it is unclear which age-dependent child sexual offence would apply or whether the victim was still a child at the time of the offence. As with section 10L the problems are solved by providing that an accused may be charged in respect of the relevant offence with the lesser maximum statutory penalty, whether this is before or after the victim’s relevant birthday. If it can be proved that the sexual offence occurred sometime in the relevant period, the person may then be convicted and sentenced in respect of the lesser penalty offence.

The proposed section 10N (Charge of sexual offence when victim’s age uncertain) deals with problems arising when there is uncertainty regarding the birth date of the victim of a sexual offence - ( a problem which might arise in remote regional areas or for children with refugee backgrounds). As in sections 10L and 10M, in such cases the accused may be charged in respect of whichever relevant offence has the lesser maximum statutory penalty, whether this is an offence if the victim was of a particular age or an offence if the victim was of a different age. If it can be proved that the offence occurred, the person may be convicted and sentenced in respect of the lesser penalty offence.

The amendments proposed under Part 2 of the Bill being intended to remove ". . . technical impediments to convicting perpetrators for serious offences, with particular regard to historical sexual offences against children" include acts or omissions committed prior to the commencement of the amendment provisions but the Bill does not retrospectively alter or add new offences.

Children’s Court of Western Australia Amendments

Part 3 of the Bill proposes amendments dealing with circumstances in which it is uncertain whether the accused was a child or an adult at the time of the commission of the offence and to this end proposes amendments to the Children’s Court of Western Australia Act 1988 to provide the Children’s Court with jurisdiction to hear and determine charges where it is uncertain whether the accused was a child at the time of the alleged offence. The proposed new subsections 19(2AA) and (2AB) will give the Children’s Court power to have and retain jurisdiction if a charge alleges that the offence was committed by a person who may have been a child. Subsection 19(2AB) in particular is intended to avoid prosecutions being discontinued where, during the trial, evidence suggests that the accused was, or may have been, an adult at the time of the offence avoiding additional stress and trauma, particularly for victims of child sexual abuse, associated with the trial having to be commenced afresh in another court.

The reasoning behind the changes, according to the Attorney General, is that the approach under Part 3 of the Bill will have regard to the interests of the accused whilst ensuring a prosecution can proceed in the jurisdiction of the Children’s Court.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Sources:

Criminal Law Amendment (Uncertain Dates) Bill 2019 (WA Bill No 131) and Second Reading Speech and Explanatory Material as reported in TimeBase's LawOne Service.

Media Release: New Bill to strengthen child sexual abuse laws in WA  (Attorney-General of Western Australia)

Crackdown on child sex abuse predators who escape conviction over victim's memory (Hannah Barry, WA Today, 20 June  2019)

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