Results 12,981-13,000 of 18,736 for speaker:Michael McDowell

Criminal Law (Sexual Offences) (Amendment) Bill 2007: Committee and Remaining Stages (6 Mar 2007)

Michael McDowell: Yes. When the Deputy provided his figures, I was struck by the thought that perhaps they were used in respect of child prostitution cases. It is not clear why——

Criminal Law (Sexual Offences) (Amendment) Bill 2007: Committee and Remaining Stages (6 Mar 2007)

Michael McDowell: No. Adults were prosecuted for approaching child prostitutes.

Criminal Law (Sexual Offences) (Amendment) Bill 2007: Committee and Remaining Stages (6 Mar 2007)

Michael McDowell: I am not in a position to offer a view on that point. If I did so, I would only be speculating. We tried to obtain reasons that language which includes terms such as "solicit" and "importune" were used in previous statutes. It is clear that this does not have to be for the purpose of prostitution, so, since 2001, it does not have that narrow meaning.

Criminal Law (Sexual Offences) (Amendment) Bill 2007: Committee and Remaining Stages (6 Mar 2007)

Michael McDowell: It was never intended that it would have that meaning after 1993.

Criminal Law (Sexual Offences) (Amendment) Bill 2007: Committee and Remaining Stages (6 Mar 2007)

Michael McDowell: A particular event obviously prompted someone to decide in 2001 to make it clear that it could have a meaning relating to a non-prostitution context. I do not know why such action was taken.

Criminal Law (Sexual Offences) (Amendment) Bill 2007: Committee and Remaining Stages (6 Mar 2007)

Michael McDowell: No. The payment of money is not the issue. Soliciting a prostitute does not involve paying money. Kerb-crawling would amount to soliciting a prostitute and it was prosecutable as a summary offence. It was not regarded as an indictable offence. It was the division of that offence into two categories that led, I believe, to this particular offence being regarded as a summary offence in the...

Criminal Law (Sexual Offences) (Amendment) Bill 2007: Committee and Remaining Stages (6 Mar 2007)

Michael McDowell: One of the important matters is that we bear in mind that the offences we were dealing with last year were very grave sexual offences whereas if one is soliciting somebody to come into a bush, a bedroom or wherever, it is not easily determined whether one is speaking of one of the grave offences or a relatively — I will not use the word "minor"——

Criminal Law (Sexual Offences) (Amendment) Bill 2007: Committee and Remaining Stages (6 Mar 2007)

Michael McDowell: ——less grave sexual assault-type offence. At the point of solicitation, unless some remarkably clear language is used, one must be in a position to include sexual assault in it as well because otherwise it is extremely difficult to prove that it is for that purpose. Another point that will arise later on the Labour Party's amendments, is that this is gender neutral. That was one of the...

Criminal Law (Sexual Offences) (Amendment) Bill 2007: Committee and Remaining Stages (6 Mar 2007)

Michael McDowell: ——there will not be detention powers.

Criminal Law (Sexual Offences) (Amendment) Bill 2007: Committee and Remaining Stages (6 Mar 2007)

Michael McDowell: Curiously, there is an arrest power under the 1993 Act, but there is no power as regards detention for questioning. It is essential in these cases that we deal with it that way. There is also the question if one is dealing with a summary offence — there may be some exception for children offences but I think I am correct in saying — that it must be prosecuted within six months of the...

Criminal Law (Sexual Offences) (Amendment) Bill 2007: Committee and Remaining Stages (6 Mar 2007)

Michael McDowell: I will deal with that.

Criminal Law (Sexual Offences) (Amendment) Bill 2007: Committee and Remaining Stages (6 Mar 2007)

Michael McDowell: I can deal with it in this section because if the point were correct, I should put it in as a defence in this section as well.

Criminal Law (Sexual Offences) (Amendment) Bill 2007: Committee and Remaining Stages (6 Mar 2007)

Michael McDowell: I have discussed this with the Attorney General. Sexual assault to which I have just referred is part of our law and in the CC case was expressly——

Criminal Law (Sexual Offences) (Amendment) Bill 2007: Committee and Remaining Stages (6 Mar 2007)

Michael McDowell: ——preserved because of its different legislative history, although it used to be called indecent assault. However, it is interesting to note that sexual assault is not now the subject of any express defence. In 2006 we did not state that there is a defence of honest mistake in the case of sexual assault on a minor but just took the Supreme Court's decision at face value and stated that...

Criminal Law (Sexual Offences) (Amendment) Bill 2007: Committee and Remaining Stages (6 Mar 2007)

Michael McDowell: ——unless and until we change it.

Criminal Law (Sexual Offences) (Amendment) Bill 2007: Committee and Remaining Stages (6 Mar 2007)

Michael McDowell: I am just making the point that the general law is that proof beyond reasonable doubt lies on the prosecution and, therefore, it is necessary for the prosecution to exclude beyond reasonable doubt the possibility——

Criminal Law (Sexual Offences) (Amendment) Bill 2007: Committee and Remaining Stages (6 Mar 2007)

Michael McDowell: Yes, in a sexual assault case.

Criminal Law (Sexual Offences) (Amendment) Bill 2007: Committee and Remaining Stages (6 Mar 2007)

Michael McDowell: That is where we left the law of sexual assault. What I am saying is that in nearly all of these cases one will not get solicitation which is clearly for an act of intercourse as opposed to a sexual assault. Solicitation will rarely be put in terms which makes it clear that it is for——

Criminal Law (Sexual Offences) (Amendment) Bill 2007: Committee and Remaining Stages (6 Mar 2007)

Michael McDowell: ——a completed act of sexual penetration compared with some other form of sexual deviancy with a child. Therefore, there would be a peculiar position if we started erecting defences now to this particular offence without going down the road of providing an explicit defence for sexual assault cases as well. I am trying to contain the entire operation. Unless one contains the legislation,...

Criminal Law (Sexual Offences) (Amendment) Bill 2007: Committee and Remaining Stages (6 Mar 2007)

Michael McDowell: It probably would, if the child was visibly a child.