The Community Law Reform Committee of the Australian Capital Territory was established in June 1990. The purpose of the Committee is to assist the Government to identify areas in need of reform, anticipate emerging social and legal issues and assess the practical impact of various proposals and laws on the people of the ACT. The Committee's Office and Secretariat are at 3rd floor GIO Building, City Walk, Canberra City ACT 2601 (Tel (06)2070546, fax (06)2070538).
(i) Section 556 of the Crimes Act 1900 (NSW) as it applies to the ACT should be repealed; and
(ii) Section 552 of the Act should also be repealed as a provision relating to juvenile first offenders should not appear in the Crimes Act.
The Community Law Reform Committee recommends that sections 552 and 556 be repealed and that a consequential amendment be made to remove the reference to section 556 in section 437(8) of the Act.
Draft legislation which would give effect to the recommendations appears in Appendix A.
2. In particular, the Committee was to report on whether section 556 should be amended so that a person who lays an information leading to a summary conviction will not be barred from instituting civil proceedings founded on the same facts.
"Where any person, summarily convicted under this Act, pays the sum or sums as judged to be paid, together with costs, or receives a remission thereof from the Crown, of suffers the imprisonment provided for non-payment thereof, or is discharged from his conviction by the Magistrate under Section 552 of this Act, he shall not be liable to any other proceedings for the same cause."
5. Section 556 was amended by the Crimes (Amendment) Act (No. 2) 1984. Subsections 1(a), 1(b) and section 2 were included. Section 556 now reads as follows:
"556 (1) Where any person, summarily convicted under this Act, pays the sum or sums adjudged to be paid, together with costs, or receives a remission thereof from the Crown, or suffers the imprisonment provided for non-payment thereof, or the imprisonment adjudged in the first instance, or is discharged from her or his conviction by the Magistrate under section five hundred and fifty-two of this Act, she or he shall not be liable:
(a) to any other criminal proceedings for the same cause; or
(b) to any civil proceedings for the same cause at the suit of the person laying the information upon which she or he was summarily convicted under this Act.
(2) Any person against whom civil proceedings have been taken in respect of any act or thing done or omitted to be done by her or him which is an offence of which she or he might have been convicted summarily without consent under this Act shall not be liable to any criminal proceedings for the same cause on the information of the person by whom the civil proceedings were taken."
6. The following situation obtains under section 556.
7. If a person complains to the police of an offence committed against him or her and the police lay an information or proceed otherwise against the offender who committed the offence, then the offender, if summarily convicted, is not liable to any other criminal proceedings for the same cause. This is the case if the convicted offender pays the fine imposed, suffers imprisonment or is discharged under section 552[2]. Section 552 applies to children under the age of 16 years.
8. It is to be noted that the expression "lay an information" has a highly technical meaning. It relates to the initiation of proceedings in a formal way by the person who seeks to bring an alleged offender before the Court. It does not refer to the person who complains to the police in respect of an offence allegedly committed upon him or her by an offender. Therefore, in most circumstances the aggrieved person is able to take civil proceedings for the same cause because he or she did not lay the information.
9. However, the Committee agrees that a possible consequence of the 1984 amendments, is that if a person against whom an offence has been committed lays the information himself or herself, then he or she precludes himself or herself from taking any civil action in respect of the offence. Conversely, if he or she takes civil proceedings in respect of the offence, he or she is not thereafter permitted to lay an information (in the technical sense) in respect of the offence and proceed with criminal proceedings against the alleged offender.
10. Another matter falls to be considered. If a person is summarily and validly convicted of an offence he or she cannot thereafter be made the subject of any other criminal proceedings for the same cause in any event. One wonders, therefore, why sub-section 556(1)(a) is necessary at all. That leaves for consideration only sub-paragraph (b) of that sub-section. As to that the Committee recommends that the sub-paragraph be repealed, the more so since the civil proceedings referred to in the sub-paragraph may quite possibly be concerned with damages amounting to many thousands of dollars.
11. The Committee agrees that the section should be repealed to make it plain that even if a person lays an information in respect of a criminal offence he or she may pursue a civil remedy thereafter.
12. A related matter which the Committee feels should be reviewed is the application of section 552 of the Crimes Act. This section is referred to in section 556(1). The Committee considers that section 552 of the Act should be repealed since it seems entirely out of place that a provision relating to juvenile first offenders should appear in the Crimes Act when young persons are adequately dealt with by section 47(1)(b)(d)(f) and (g) of the Children's Services Act 1986[3].
14. Further, the Committee considers that section 552 of the Crimes Act 1900 (NSW) should be repealed as it seems entirely out of place that a provision relating to juvenile first offenders should appear in the Crimes Act when young persons are adequately dealt with by appropriate legislation.
15. A search of ACT legislation has revealed that section 556 is referred to in Section 437(8) of the Crimes ACT 1900 (NSW). A consequential amendment is necessary so that the reference made to section 556 is deleted from section 437(8) of the Act. No further reference to section 556 is made in any other ACT provision.
16. A search of ACT legislation has revealed that no reference is made to Section 552 in any other provision in force in the Territory.
17. These recommendations have been agreed to by the Criminal Law Consultative Committee.
Australian Capital Territory, Department of Justice and Community Services, Section 556 of the Crimes Act 1900 (NSW), Issues Paper, Canberra 1990.
The provision is capable of causing an injustice to a victim of a crime who institutes any civil proceedings on the same facts. The injustice may arise because the offender who has been convicted in the criminal proceedings may rely on the conviction as a statutory defence to any other action founded on the same facts.
I, BERNARD COLLAERY, ATTORNEY-GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY, THEREFORE REFER the following matter to the Community Law Reform Committee as provided for in the constitution of the Committee:
TO REVIEW the law in force in the Territory with respect to section 556 of the Crimes Act 1900 (NSW) in its application to the Territory AND TO REPORT:
a) whether section 556 of the Crimes Act 1900 (NSW) as it applies to the ACT should be amended so that a person who lays an information leading to a summary conviction will not be barred from instituting civil proceedings founded on the same facts;
b) on any other relevant matter the Committee wishes to take into consideration.
In making its review and report the Committee is to have regard to any views of government agencies or the community on the subject matter of this reference and to the impact of any Territory schemes for the compensation of victims.
Signed this fourth day of November 1990
BERNARD COLLAERY
ATTORNEY-GENERAL
The Honourable JJA Kelly, QC
Deputy Chairpersons
Ms Jenny Kitchin
Chief Magistrate Mr RJ Cahill
Committee Members
Mr Nick Seddon
Mr Graeme Lunney
Mr Peter Sutherland
Mrs Betty McNee
Mr Rod Campbell
Ms Judy Harrison
Professor Roman Tomasic
Professor Duncan Chappell
Ms Robin Burnett
Mr Rainer Frisch
Mr Ross Gengos
Senior Legal Officer: Ms Tracy Reid
Project Officer: Mr David Snowden
Word processing/Secretarial: Margaret Ryan
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