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This is a Bill, not an Act. For current law, see the Acts databases.
2015
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Contents
Page
Part 1.1Children and Young People Act 200853
2015
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Crimes (Domestic and Family Violence) Legislation Amendment Bill 2015
A Bill for
An Act to amend legislation about crimes of domestic and family violence, and for other purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Crimes (Domestic and Family Violence) Legislation Amendment Act 2015
.
(1) This Act (other than the following provisions) commences on the day after its notification day:
• part 4 (Evidence (Miscellaneous Provisions) Act 1991);
• schedule 1, amendment 1.1;
• schedule 1, part 1.2 (Confiscation of Criminal Assets Act 2003);
• schedule 1, part 1.3 (Court Procedures Act 2004);
• schedule 1, part 1.4 (Court Procedures Rules 2006);
• schedule 1, part 1.6 (Crimes (Forensic Procedures) Act 2000);
• schedule 1, part 1.7 (Crimes (Sentencing) Act 2005);
• schedule 1, part 1.8 (Evidence Act 2011);
• schedule 1, part 1.9 (Evidence (Miscellaneous Provisions) Regulation 2009);
• schedule 1, part 1.11 (Supreme Court Act 1933).
Note The naming and commencement provisions automatically commence on
the notification day (see
, s 75 (1)).
(2) The provisions mentioned in subsection (1) commence 6 months after this Act’s notification day.
This Act amends the following legislation:
•
•
•
.
Note This Act also amends other legislation
(see sch 1).
4 Acts endangering health
etc
New section 28 (2) (aa)
before paragraph (a), insert
(aa) chokes, suffocates or strangles another person; or
5 Alternative verdicts for certain
other offences against the person
Table 49, new item 7A
insert
|
7A
|
section 27 (3) (a)
(Choking etc rendering person unconscious etc)
|
section 28 (2) (aa)
|
insert
|
11A
|
section 28 (2) (aa)
(Choking, suffocating or strangling)
|
section 26
|
Part 3 Domestic Violence and Protection Orders Act 2008
7 Registrar may adjourn proceedings
etc
Section 23 (2), note
substitute
Note The registrar may also extend a general interim order (see s 41E).
8 New division 4.1 and division 4.2 heading
insert
Division 4.1 Definitions
28A Meaning of interim order, general interim order and special interim order—Act
In this Act:
general interim order—
(a) means a protection order (including a consent order) made under section 30A (b) (Interim orders—general interim orders and special interim orders); and
(b) includes an order (other than a final order) that amends or revokes a general interim order.
interim order means—
(a) a general interim order; or
(b) a special interim order.
special interim order—
(a) means a domestic violence order (including a consent order) made under section 30A (a) (Interim orders—general interim orders and special interim orders); and
(b) includes an order (other than a final order) that amends or revokes a special interim order.
28B Meaning of related charges—Act
In this Act:
related—a charge against a person for an offence is related to an application for a final order and, if an interim order is made on the application, an interim order if—
(a) the person charged is—
(i) the respondent for the application; and
(ii) a relevant person in relation to the aggrieved person; and
(b) the offence is a domestic violence offence, other than an offence against section 90 (Offence for contravention of protection order).
28C Meaning of outstanding charges—pt 4
In this part:
outstanding—a charge against a person for an offence is outstanding until the charge is finally dealt with in any of the following ways:
(a) the charge is withdrawn;
(b) the charge is dismissed by a court;
(c) the person is discharged by a court following a committal hearing;
(d) the person is acquitted, convicted or found guilty by a court of the offence.
Note Found guilty, of an offence—see the Legislation Act
, dictionary, pt 1.
Division 4.2 Making interim orders
substitute
29 Interim orders—grounds for making
substitute
30 Interim orders—only on application for final order
omit
insert
30A Interim orders—general interim orders and special interim orders
(1) If the Magistrates Court is making an interim order on an application, the court may make—
(a) a special interim order if—
(i) the application is for a final domestic violence order; and
(ii) there is a related charge outstanding in relation to the respondent; or
(b) in any other case—a general interim order.
(2) If the court makes a special interim order in circumstances where a general interim order may be made—
(a) the operation of the special interim order is not affected by the fact that a general interim order may have been made; and
(b) the court may set aside the special interim order and make a general interim order.
(3) If the court makes a general interim order in circumstances where a special interim order may be made—
(a) the operation of the general interim order is not affected by the fact that a special interim order may have been made; and
(b) the court may set aside the general interim order and make a special interim order.
substitute
31 Interim orders—court consideration of children
substitute
32 Interim orders—respondent with legal disability
substitute
33 Interim orders—service of application unnecessary
substitute
34 General interim order—extension of return date for final order
omit
an interim order
substitute
a general interim order
omit
the interim order
substitute
the general interim order
insert
34A Special interim order—return date for final order
(1) This section applies if the Magistrates Court makes a special interim order.
(2) The return date for the application for the final order must be—
(a) not earlier than the day all related charges are finalised; and
(b) not later than 21 days after the day all related charges are finalised.
Note Finalised—see s 42.
Related
charges—see s 28B.
Special interim
order—see s 28A.
substitute
35 Interim orders—content
substitute
36 General interim orders—becoming final orders
omit
an interim order
substitute
a general interim order
omit
the interim order
substitute
the general interim order
relocate to division 4.3 as section 41C
25 Length of interim orders not by
consent
Section 37
omit
substitute
38 Interim orders—ending
An interim order ends if any of the following happens:
(a) for a general interim order—the end of the period stated in the order;
Note A general interim order (other than a consent order) must not be
in force for more than 2 years (see s 41A).
A general interim order
made as a consent order remains in force for the period of up to 16 weeks stated
in the order (see s 45).
(b) the interim order is revoked;
(c) the application on which the interim order was made is dismissed;
(d) if a final order is made on the application and the respondent is present when the final order is made—the final order is made;
(e) if a final order is made on the application but the respondent is not present when the final order is made—the final order is served on the respondent.
27 What if interim orders would expire
before final orders are served?
Section 39
omit
substitute
40 Interim orders—respondent’s firearms
omit
insert
Division 4.3 General interim orders—no related charges
41 General interim orders—only one may be made
Only 1 general interim order may be made in relation to an application for a final order unless section 41D (General interim orders—further orders) applies.
41A General interim orders—length
A general interim order (other than a consent order) must not be in force for more than 2 years.
Note Section 45 provides for how long a general interim order made as a consent order may be in force.
41B General interim orders—taken to be special interim orders if related charges laid
(1) This section applies if—
(a) the court has made a general interim order on an application; and
(b) after the general interim order is made, but before the final order is made, the respondent is charged with an offence; and
(c) the charge is related to the application.
Note Related charges—see s 28B.
(2) The general interim order is taken to be a special interim order—
(a) in the same terms as the general interim order; and
(b) subject to same conditions as the general interim order.
(3) The return date for the application must be changed to a day—
(a) not earlier than the day all related charges are finalised; and
(b) not later than 21 days after the day all related charges are finalised.
Note Finalised—see s 42.
Related
charges—see s 28B.
Special interim
order—see s 28A.
41D General interim orders—further orders
(1) This section applies if a general interim order has ended or is about to end.
(2) The Magistrates Court may make a further general interim order if satisfied there are special or exceptional circumstances (having regard to the principles for making protection orders) that justify the making of a further general interim order.
Note The principles for making protection orders are set out in s 7.
(3) However, a further general interim order must not be made as a consent order.
Note An interim order may be amended in certain circumstances (see s 58).
41E General interim orders—extension of orders
(1) This section applies if the registrar adjourns a proceeding for a final order because the respondent has not been served with a copy of the application and a notice about the proceeding stating the date for the application’s return before the Magistrates Court.
(2) The registrar may also amend a general interim order made in relation to the application by extending it to take into account the delay caused by the adjournment.
(3) The registrar must not extend a general interim order under subsection (2) for longer than 8 weeks.
Note A general interim order must not be extended if the extension would mean the interim order would be in force for more than 16 weeks (see s 61 (2)).
41F General interim orders—expiry before final order served
(1) This section applies if—
(a) a final order is made on an application for an interim order; and
(b) the respondent is not present at the making of the final order; and
(c) a general interim order made in relation to the same application would, but for this section, expire before the final order is served on the respondent.
Note A further order may be made in special or exceptional circumstances (see s 41D).
(2) The general interim order is taken to continue in force until the final order is served on the respondent.
(3) To remove any doubt, section 90 (Offence for contravention of protection order) applies to the general interim order continued in force.
Division 4.4 Special interim orders—related domestic violence charges outstanding
42 Meaning of outstanding related charges finalised—div 4.4
In this division:
finalised—an outstanding related charge is finalised if—
(a) the charge is withdrawn; or
(b) the director of public prosecutions declines to proceed further with the prosecution of the offences and causes it to be brought to an end; or
(c) the charge is dismissed by a court; or
(d) the person is discharged by a court following a committal hearing; or
(e) the person is acquitted, convicted or found guilty by a court of the offence.
Note Found guilty, of an offence—see the Legislation Act
, dictionary, pt 1.
42A Special interim orders—continue until application decided
If the Magistrates Court makes a special interim order on an application for a final order, the special interim order continues in force until the application is decided.
42B Special interim orders—application not to be decided until related charges finalised
(1) If the Magistrates Court makes a special interim order on an application for a final order, the Court must not decide the application until all related charges are finalised.
Note Finalised—see s 42.
(2) However, the application may be withdrawn, or decided by the court by consent, before all related charges are finalised.
42C Special interim orders—final application decided
(1) This section applies if—
(a) the Magistrates Court has made a special interim order on an application for a final order; and
(b) all charges related to a special interim order are finalised; and
(c) the application for the final order has not yet been decided.
Note 1 Finalised—see s 42.
Note 2 The Court must not decide the application, unless by consent, until all related charges are finalised (see s 42B).
(2) After the final related charge is finalised by the court, the court must also—
(a) if the court is the Magistrates Court—decide the application for the final order; or
(b) if the court is another court—
(i) decide the application for the final order as if it were the Magistrates Court; or
(ii) notify the Magistrates Court that the final related charge has been decided.
Note It is sufficient for a Magistrate to be satisfied on the balance of probabilities in relation to any matter to be decided in proceedings on an application.
(3) If a court notifies the Magistrates Court under subsection (2) (b) (ii)—
(a) the court may give the Magistrates Court guidance about, or a direction for, suitable conditions to be included in the final order; and
(b) the Magistrates Court must decide the application for the final order.
(4) A decision to dismiss the application may only be made after giving the parties an opportunity to be heard.
(5) The court deciding the application for the final order under this section may set a return date for the application.
31 Consent
orders
Section 43 (4) (b)
omit
section 45 (Length of interim orders by consent)
substitute
section 45 (Consent orders—length of general interim orders)
substitute
44 Consent orders—party with legal disability
substitute
45 Consent orders—length of general interim orders
(1) A general interim order made as a consent order remains in force for the period of up to 16 weeks stated in the order.
(2) To remove any doubt, section 61 (2) applies to a general interim order made by consent.
Note 1 Under s 61 (2), a general interim order made by consent may not be amended by extending it to be in force for longer than 16 weeks.
Note 2 A special interim order made as a consent order continues in force until the application for the final order is decided (see s 42A).
34 Amendment
generally
Section 58 (3), note 1
substitute
Note 1 The following sections expressly deal with the grounds for amendment:
• s 61 (Extension of general interim orders made by consent)
• s 62 (Extension of final orders)
• s 78 (Emergency amendment and revocation of emergency orders)
• s 79 (Non-emergency amendment and revocation of emergency orders).
substitute
61 Extension of general interim orders made by consent
(1) The Magistrates Court may, on application, amend a general interim order that is a consent order by extending it for an additional period, or further additional period, of up to 8 weeks.
(2) However, a general interim order must not be extended if the extension would mean the order would be in force for more than 16 weeks.
Note 1 The registrar may extend a general interim order if the application for the final order has not been served on the respondent (see s 41F) or if the registrar is exercising the Magistrates Court’s jurisdiction to make a consent order.
Note 2 A special interim order made as a consent order continues in force until the application for the final order is decided (see s 42A).
36 Service of non-emergency protection
orders
Section 64 (1) (a)
substitute
(a) if the order is an interim order—serve 2 copies of the order (1 marked as the endorsement copy) on the respondent not later than—
(i) for a general interim order—14 days before the return date for the application for the final order; or
(ii) for a special interim order—14 days after the special interim order is made; and
in part 11, insert
90A Application for review of special interim orders
The Magistrates Court may, on application by the respondent to a special interim order, give leave to the respondent to apply to the court for review of the order in relation to any of the following only:
(a) the identity of the respondent;
(b) an administrative defect or error in the special interim order;
(c) whether or not there are outstanding related charges in relation to the respondent;
(d) whether a general interim order should have been made.
Note 1 Section 30A deals with the making of general interim orders and special interim orders.
Note 2 If a form is approved under the Court Procedures Act 2004
for an application under this section, the form must be used.
90B Review of special interim orders
(1) On hearing an application for review under section 90A, the Magistrates Court must, by order—
(a) dismiss the application; or
(b) confirm the special interim order; or
(c) revoke the special interim order; or
(d) set aside the special interim order and make a new interim order.
Note Section 29 sets out the grounds for making interim orders and s 30A deals with whether it is a general interim order or a special interim order.
(2) The Magistrates Court may revoke the special interim order only if the Magistrates Court is satisfied that the special interim order is no longer necessary for the protection of the person it protects.
38 Application for review of particular
final orders
Section 91 (1) (a)
substitute
(a) an application by a respondent for review of a general interim order that became final under section 41C (General interim orders—becoming final orders); and
omit
s 36
substitute
s 41C
substitute
93 Application by respondent for review of order finalised under s 41C
substitute
(1) This section applies if a general interim order has become a final order (the original order) under section 41C (General interim orders—becoming final orders).
omit
section 36
substitute
section 41C
substitute
94 Review of order finalised under s 41C
substitute
(2) If the Magistrates Court makes a new general interim order, section 41C applies to the order.
45 Deciding application if criminal
proceedings
Section 113, new note
insert
Note If the Magistrates Court is making an interim order under s 29, and there is a related charge outstanding in relation to the respondent, the court must make a special interim order.
46 Dictionary, new definitions
insert
finalised, for an outstanding related charge, for division 4.4 (Special interim orders—related domestic violence charges outstanding)—see section 42.
general interim order—see section 28A.
47 Dictionary, definition of interim order
substitute
interim order—see section 28A.
48 Dictionary, new definitions
insert
outstanding, for a charge, for part 4 (Interim orders)—see section 28C.
related, for a charge—see section 28B.
special interim order—see section 28A.
Part 4 Evidence (Miscellaneous Provisions) Act 1991
renumber as chapters 1 to 3
substitute
Part 3.1 Preliminary—ch 3
renumber as parts 3.2 to 3.6
substitute
Chapter 4 Evidence in sexual, violent and domestic violence offence proceedings
Part 4.1 Preliminary—ch 4
36A Failure to comply with ch 4
(1) If the evidence of the complainant or a similar act witness is not given in accordance with this chapter, the evidence is not inadmissible for that reason only.
(2) Failure to comply with this chapter in relation to a proceeding does not affect the validity of the proceeding.
36D Meaning of intellectually impaired—ch 4
In this chapter:
intellectually impaired—a person is intellectually impaired if the person has—
(a) an appreciably below average general intellectual function; or
(b) a cognitive impairment (including dementia or autism) arising from an acquired brain injury, neurological disorder or a developmental disorder; or
(c) any other intellectual disability.
Part 4.2 Evidence in sexual and violent offence proceedings
substitute
Division 4.2.1 Preliminary—pt 4.2
substitute
37 Definitions—pt 4.2
55 Section 37, definition of less serious violent offence
substitute
less serious violent offence means—
(a) an offence against any of the following provisions of the Crimes Act 1900
:
(i) section 21 (1) (Wounding);
(ii) section 22 (Assault with intent to commit other offence);
(iii) section 23 (1) (Inflicting actual bodily harm);
(iv) section 24 (1) (Assault occasioning actual bodily harm);
(v) section 25 (Causing grievous bodily harm);
(vi) section 26 (Common assault);
(vii) section 28 (Acts endangering health etc);
(viii) section 29 (4) and (5) (Culpable driving of motor vehicle);
(ix) section 31 (Threat to inflict grievous bodily harm);
(x) section 37 (Abduction of young person);
(xi) section 41 (Exposing or abandoning child);
(xii) section 116 (Destroying or damaging property); or
(b) an offence against the Criminal Code
, section 403 (Damaging property); or
(c) an offence against the Domestic Violence and Protection Orders Act 2008
, section 90 (Offence for contravention of protection order).
56 Section 37, definition of serious violent offence, new paragraph (a) (xiia)
insert
(xiia) section 35 (Stalking);
57 Section 37, definition of serious violent offence, new paragraph (b) (iii) and (iv)
insert
(iii) section 311 (Burglary) if the complainant was in the building at the time of the offence;
(iv) section 312 (Aggravated burglary) if the complainant was in the building at the time of the offence.
58 Section 37, new definitions
insert
sexual or violent offence means—
(a) a sexual offence; or
(b) a violent offence.
sexual or violent offence proceeding means—
(a) a sexual offence proceeding; or
(b) a violent offence proceeding.
renumber as division 4.2.2
substitute
38B Meaning of relevant person—ch 4
omit
For this division,
substitute
In this chapter:
relocate to part 4.1 as section 36B
substitute
38BA Meaning of relative—ch 4
omit
For this division, a
substitute
In this chapter:
relocate to part 4.1 as section 36C
renumber as division 4.2.2A
67 Meaning of
complainant—div 4.2A
Section 40A
omit
substitute
40B Meaning of sexual offence proceeding—div 4.2.2A
69 Section 40B (1) (c) and (d)
substitute
(c) an appeal arising out of a proceeding mentioned in paragraph (a) or (b).
substitute
40C Meaning of violent offence proceeding—div 4.2.2A
71 Section 40C (1) (c) and (d)
substitute
(c) an appeal arising out of a proceeding mentioned in paragraph (a) or (b).
substitute
40D Meaning of witness—div 4.2.2A
substitute
Note Intellectually impaired—see s 36D.
renumber as division 4.2.2B
substitute
40P Meaning of witness—div 4.2.2B
substitute
Note Intellectually impaired—see s 36D.
renumber as division 4.2.3
78 Meaning of complainant and
sexual offence
proceeding—div 4.3
Section 41 (2) (c)
omit
79 Meaning of violent offence
proceeding—div 4.3
Section 41A (1) (c)
omit
80 Meaning of sexual offence
and violent
offence—div 4.3
Section 41B
omit
81 Proceedings to which div 4.3
applies
Section 42 (1) (c) (i)
insert
Note Relevant person—see s 38B.
omit
83 Failure to comply with div
4.3
Section 47
omit
renumber as divisions 4.2.4 to 4.2.6
insert
Part 4.3 Evidence in domestic violence proceedings
Division 4.3.1 Definitions—pt 4.3
74 Meaning of domestic violence offence—pt 4.3
In this part:
domestic violence offence means an offence mentioned in the Domestic Violence and Protection Orders Act 2008
, schedule 1, table 1.2.
Note Complainant, for a domestic violence offence proceeding,
is an adult who is a relevant person in relation to the accused (see
s 76).
Relevant person—see s 36B.
75 Meaning of domestic violence offence proceeding—pt 4.3
(1) In this part:
domestic violence offence proceeding means—
(a) a proceeding for a domestic violence offence; or
(b) a proceeding in relation to bail for a person charged with a domestic violence offence, whether or not the person is also charged with any other offence; or
(c) a sentencing proceeding for a person convicted or found guilty of a domestic violence offence, whether or not the person is also convicted or found guilty of any other offence; or
(d) an appeal arising out of a proceeding mentioned in paragraphs (a) to (c); or
(e) an interlocutory proceeding in, or a proceeding ancillary to, a proceeding mentioned in paragraphs (a) to (c).
(2) In this section:
proceeding for a domestic violence offence includes—
(a) a proceeding for a domestic violence offence and any other offence; and
(b) a proceeding for a domestic violence offence and any other offence as an alternative to the domestic violence offence; and
(c) a proceeding for a domestic violence offence that may result in a finding of guilt (or committal for trial or sentence) for any other offence.
76 Meaning of complainant—pt 4.3
In this part:
complainant, for a domestic violence offence proceeding—
(a) means a person—
(i) against whom a domestic violence offence the subject of the proceeding is alleged, or has been found, to have been committed; and
(ii) who is a relevant person in relation to the accused person; but
Note Relevant person—see s 36B.
(b) does not include a person who—
(i) is a child on the day a recorded statement is made; or
(ii) is intellectually impaired.
Note 1 Intellectually impaired—see s 36D.
Note 2 Audiovisual recording and the evidence of children and people with intellectual impairment is dealt with in div 4.2.2A.
77 Meaning of recorded statement—pt 4.3
(1) In this part:
recorded statement means—
(a) an audiovisual recording—
(i) of a complainant answering questions of a police officer in relation to the investigation of a domestic violence offence; and
(ii) made by a police officer; or
(b) an audio recording that complies with paragraph (a)—
(i) if the complainant does not consent to an audiovisual recording; or
(ii) in exceptional circumstances.
Example—exceptional circumstances
technical difficulties with the visual aspect of the recording identified following the making of the recording
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act
, s 126 and s 132).
(2) A police officer must, before making a recorded statement, tell the complainant that—
(a) the recorded statement may be used in evidence at a hearing; and
(b) if the recorded statement is used in evidence at a hearing, the complainant may be called to give evidence under cross-examination in person at the hearing; and
(c) the complainant does not have to consent to the recording.
(3) In this section:
police officer includes a person who is a member of the police force of a State or another Territory if—
(a) provisions of the law of that State or Territory correspond (or substantially correspond) to this part; and
(b) the person is trained in the taking of evidence under those provisions.
Note Police officer—see the Legislation Act
, dictionary, pt 1.
Division 4.3.2 Evidence may be given in closed court
78 Evidence may be given in closed court
(1) This section applies to the complainant giving evidence in a domestic violence offence proceeding if the court considers that the complainant has a vulnerability that affects the complainant’s ability to give evidence because of the circumstances of the proceeding or the complainant’s circumstances.
Examples—complainant vulnerability
1 the complainant is likely to suffer severe emotional trauma because of the nature of the alleged offence
2 the complainant is intimidated or distressed because of the complainant’s relationship to the accused person
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see
, s 126 and s 132).
(2) The court is not bound by the rules of evidence and may inform itself as it considers appropriate.
(3) The court may order that the court be closed to the public while all or part of the complainant’s evidence (including evidence given under cross-examination) is given.
Note The accused is entitled to a fair and public hearing, but the court may exclude the public in certain circumstances (see Human Rights Act 2004
, s 21 (2)).
(4) In deciding whether to order that the court be closed to the public, the court must consider whether—
(a) the complainant wants to give evidence in open court; and
(b) it is in the interests of justice that the complainant give evidence in open court.
(5) However, an order under this section does not stop the following people from being in court when the complainant gives evidence:
(a) a person nominated by the complainant;
(b) a person who attends the proceeding to prepare a news report of the proceeding and is authorised to attend for that purpose by the person’s employer.
Note Publishing certain information in relation to sexual offence proceedings is an offence (see s 40).
(6) In this section, a reference to a person giving evidence includes the person giving evidence by the playing of a recorded statement of the evidence under division 4.3.3.
Division 4.3.3 Recorded statement of police interview admissible as evidence
79 Recorded statement—requirements
(1) A recorded statement must be made—
(a) as soon as practicable after the events mentioned in the statement happened; and
(b) in the form of questions and answers.
Note If the recorded statement is to be admitted as evidence in a proceeding, the rules of evidence apply to the content of the statement.
(2) A recorded statement of a complainant must include the following:
(a) the name of each person present during any part of the recording;
(b) a statement by the complainant—
(i) of the complainant’s name, age and whether the complainant lives in the ACT; and
(ii) about the truth of the representations made by the complainant in the recorded statement;
(c) any other matter prescribed by regulation.
(3) As far as is practicable, a recorded statement must not contain an image of—
(a) a child; or
(b) a person who is intellectually impaired.
Note 1 Intellectually impaired—see s 36D.
Note 2 Audiovisual recording and the evidence of children and people with intellectual impairment is dealt with in div 4.2.2A.
(4) If any part of a recorded statement is in a language other than English—
(a) the recorded statement must contain an English translation of the part; or
(b) a separate written English translation of the part must accompany the recorded statement.
(5) A recorded statement must not be edited or changed unless—
(a) both parties consent to the edits or changes; or
(b) the court hearing the proceeding in which the recorded statement is tendered otherwise orders.
Example—court ordering change
editing the recorded statement to omit inadmissible material
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act
, s 126 and s 132).
80 Recorded statement—may be admitted as evidence
(1) A recorded statement may—
(a) be played at the hearing of a proceeding for the domestic violence offence to which it relates; and
(b) if the recorded statement is played at the hearing—be admitted as all or part of the complainant’s evidence in chief in the proceeding as if the complainant gave the evidence at the hearing in person.
(2) However, the court may refuse to admit all or any part of the recorded statement if the court considers it is in the interests of justice to do so.
(3) The complainant may choose not to be present in the courtroom while the court is viewing or listening to the recorded statement.
(4) If the complainant is giving evidence by audiovisual link from an external place under division 4.2.3 (Sexual and violent offence proceedings—giving evidence by audiovisual link), the complainant must not be visible or audible to anyone in the courtroom by closed-circuit television or by means of similar technology while the court is viewing or listening to the recorded statement.
(5) To remove any doubt, if a recorded statement is admitted as part of a complainant’s evidence in chief in a proceeding, the complainant may give further evidence in chief.
(6) This section is subject to section 81D (Recorded statement—admissibility).
81 Recorded statement—hearsay rule and opinion rule
(1) The hearsay rule and the opinion rule do not prevent the admission or use of evidence of a representation in the form of a recorded statement only because it is in that form.
Note The hearsay rule and opinion rule will apply to the content of the recorded statement to be admitted as evidence.
(2) In this section:
hearsay rule—see the Evidence Act 2011
, dictionary, part 1.
opinion rule—see the Evidence Act 2011
, dictionary, part 1.
81A Validity of proceeding not affected
(1) The failure of a police officer to record a representation in the form of a recorded statement in accordance with the requirements of this division or any regulation does not affect the validity of a proceeding in which evidence of the representation is given.
(2) The failure of a complainant to give evidence in accordance with this part does not affect the validity of a proceeding or any decision made in connection with the proceeding.
81B Recorded statement—represented accused person to be given copy
(1) This section applies if—
(a) a recorded statement has been made in relation to a domestic violence offence that is the subject of a proceeding; and
(b) the accused person is represented by a lawyer in the proceeding.
(2) The lawyer representing the accused person must be given a copy of the recorded statement as soon as practicable after the proceeding is commenced.
Note For how documents may be served, see the Legislation Act
, pt 19.5.
(3) The lawyer representing the accused person must return the copy of the recorded statement by giving it to the prosecutor not later than 16 weeks after the proceeding is finalised.
(4) The accused person must not be given, or take a copy of, the recorded statement.
81C Recorded statement—unrepresented accused person to be given access
(1) This section applies if—
(a) a recorded statement has been made in relation to a domestic violence offence that is the subject of a proceeding; and
(b) the accused person is not represented by a lawyer in the proceeding.
(2) The accused person must be given an audio copy of the recorded statement as soon as practicable after the proceeding is commenced.
(3) Also, if it is reasonably practicable, the accused person must be given an opportunity to view a recorded statement that is in the form of a video recording at a police station on at least 1 of the following occasions:
(a) when the accused person is being questioned in relation to the alleged domestic violence offence;
(b) at the request of the accused person, on a day arranged with the accused person;
(c) on another day stated in a written notice given to the accused person before committal proceedings or the trial commences.
(4) If compliance with subsection (3) is not reasonably practicable, the accused person must be given the opportunity to view the recorded statement on a day on which proceedings relating to the offence are being held.
81D Recorded statement—admissibility
Evidence of a representation of a complainant given in the form of a recorded statement is not to be admitted if section 81B or section 81C have not been complied with, unless the court is satisfied that—
(a) the parties consent to the recorded statement being admitted; or
(b) the accused person or the accused person’s lawyer (if any) have been given a reasonable opportunity to listen to or view the recorded statement and it would be in the interests of justice to admit the recorded statement.
81E Recorded statement—accused person to be given audio copy
(1) This section applies if—
(a) the prosecutor in a domestic violence offence proceeding intends to tender a recorded statement as evidence; and
(b) the court accepts a plea of not guilty from the accused person; and
(c) the accused person has not already been given an audio copy of the recorded statement under section 81C (Recorded statement—unrepresented accused person to be given access).
(2) The accused person must be given an audio copy of the recorded statement.
81F Recorded statement—jury trial
(1) This section applies if—
(a) a domestic violence offence proceeding is a trial by jury; and
(b) a recorded statement is admitted in evidence in the proceeding.
(2) The court must tell the jury that—
(a) admission of a recorded statement is a usual practice; and
(b) the jury must not draw any inference against the accused person, or give the evidence more or less weight, because the evidence is given in that way.
(3) If the court considers that a transcript of the recorded statement would be likely to help the jury’s understanding of the evidence, the court may order that the transcript be made available to the jury.
81G Recorded statement—offence to publish
(1) A person commits an offence if the person—
(a) publishes a recorded statement; and
(b) does not have authority to publish the recorded statement.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(2) For this section, a person has authority to publish a recorded statement only if the person publishes the recorded statement in connection with—
(a) the investigation of, or a proceeding for, an offence in relation to which the recorded statement is prepared; or
(b) a re-hearing, re-trial or appeal in relation to the proceeding.
(3) In this section:
person includes the complainant in relation to the recorded statement.
publish means communicate or disseminate information in a way or to an extent that makes it available to, or likely to come to the notice of, the public or a section of the public or anyone else not lawfully entitled to the information.
renumber as chapters 5 to 7
renumber as parts 7.1 to 7.3
renumber as chapters 8 and 9
insert
• adult
90 Dictionary, definition of complainant
substitute
complainant—
(a) for division 4.2.2 (Sexual and violent offence proceedings—general)—see section 38; and
(b) for division 4.2.2B (Sexual offence proceedings—giving evidence at pre-trial hearing)—see section 40N; and
(c) for division 4.2.3 (Sexual and violent offence proceedings—giving evidence by audiovisual link)––see section 41 (1); and
(d) for division 4.2.4 (Evidence of complainant’s sexual reputation and activities)––see section 48; and
(e) for division 4.2.6 (Sexual offence proceedings—directions and warnings to juries)––see section 68; and
(f) for part 4.3 (Evidence in domestic violence proceedings)—see section 76.
91 Dictionary, new definitions
insert
domestic violence offence, for part 4.3 (Evidence in domestic violence proceedings)—see section 74.
domestic violence offence proceeding, for part 4.3 (Evidence in domestic violence proceedings)—see section 75.
intellectually impaired, for chapter 4 (Evidence in sexual, violent and domestic violence offence proceedings)—see section 36D.
recorded statement, for part 4.3 (Evidence in domestic violence proceedings)—see section 77.
92 Dictionary, definitions of relative, relevant person and sexual offence
substitute
relative, for chapter 4 (Evidence in sexual, violent and domestic violence offence proceedings)—see section 36C.
relevant person, in relation to a person, for chapter 4 (Evidence in sexual, violent and domestic violence offence proceedings)—see section 36B.
sexual offence—
(a) for part 4.2 (Evidence in sexual and violent offence proceedings) generally—see section 37; and
(b) for division 4.2.2A (Sexual and violent offence proceedings—audiovisual recording of police interview admissible as evidence)—see section 40AA (1); and
(c) for division 4.2.2B (Sexual offence proceedings—giving evidence at pre-trial hearing)—see section 40NA.
93 Dictionary, new definitions
insert
sexual or violent offence, for part 4.2 (Evidence in sexual and violent offence proceedings)—see section 37.
sexual or violent offence proceeding, for part 4.2 (Evidence in sexual and violent offence proceedings)—see section 37.
94 Dictionary, definition of violent offence
substitute
violent offence—
(a) for part 4.2 (Evidence in sexual and violent offence proceedings) generally—see section 37; and
(b) for division 4.2.2A (Sexual and violent offence proceedings—audiovisual recording of police interview admissible as evidence)—see section 40AA (2).
95 Further amendments, mentions of 4.2
omit
4.2
substitute
4.2.2
in
• section 38 heading
• section 38A heading
• dictionary, definition of sexual offence proceeding, paragraph (a)
• dictionary, definition of violent offence proceeding, paragraph (a)
96 Further amendments, mentions of 4.2A
omit
4.2A
substitute
4.2.2A
in
• section 39 (6)
• section 40AA heading
• section 40E heading
• section 40Q
• section 40S (2)
• section 102 (5)
• dictionary, definition of audiovisual recording
• dictionary, definition of sexual offence proceeding, paragraph (b)
• dictionary, definition of violent offence proceeding, paragraph (b)
• dictionary, definition of witness, paragraph (a)
97 Further amendments, mentions of 4.2B
omit
4.2B
substitute
4.2.2B
in
• section 39 (6)
• section 40N heading
• section 40NA heading
• section 40O heading
• section 102 (5)
• dictionary, definition of sexual offence proceeding, paragraph (c)
• dictionary, definition of witness, paragraph (b)
98 Further amendments, mentions of 4.3
omit
4.3
substitute
4.2.3
in
• section 39 (6)
• section 40T (4)
• section 40X heading
• section 41 heading
• section 41A heading
• section 42 heading
• section 44 heading
• section 45 heading
• dictionary, definition of give evidence in a proceeding by audiovisual link, paragraph (b)
• dictionary, definition of proceeding, paragraph (c)
• dictionary, definition of sexual offence proceeding, paragraph (d)
• dictionary, definition of violent offence proceeding, paragraph (c)
99 Further amendments, mentions of 4.4
omit
4.4
substitute
4.2.4
in
• section 48 heading
• section 49 heading
• dictionary, definition of sexual offence proceeding, paragraph (e)
100 Further amendments, mentions of 4.5
omit
4.5
substitute
4.2.5
in
• section 54 heading
• section 55 heading
• section 56 heading
• dictionary, definition of civil proceeding
• dictionary, definition of counsellor
• dictionary, definition of criminal proceeding, paragraph (b)
• dictionary, definition of document recording a protected confidence
• dictionary, definition of harm
• dictionary, definition of preliminary criminal proceeding
• dictionary, definition of proceeding, paragraph (d)
• dictionary, definition of protected confidence
• dictionary, definition of protected confidence evidence
101 Further amendments, mentions of 4.6
omit
4.6
substitute
4.2.6
in
• section 68 heading
• dictionary, definition of sexual offence proceeding, paragraph (f)
102 Further amendments, mentions of div
omit
div
substitute
pt
in
• section 19 heading
• section 22 heading
• section 31 heading
• section 33 heading
• section 100 heading
103 Further amendments, mentions of division
omit
division
substitute
part
in
• sections 19 and 20
• section 22
• sections 31 to 35
• section 100
• dictionary, definition of witness with a disability, paragraph (b)
104 Further amendments, mentions of part
omit
part
substitute
chapter
in
• section 2, note 1
• sections 5 to 8
• section 12
• sections 14 to 18
• section 33 (2nd mention)
• sections 90 and 91
• section 110
• section 121
• dictionary, definition of audio link
• dictionary, definition of court
• dictionary, definition of dangerously ill person
• dictionary, definition of give evidence in a proceeding by audiovisual link, paragraph (a)
• dictionary, definition of Magistrates Court
• dictionary, definition of participating State
• dictionary, definition of proceeding, paragraph (b)
• dictionary, definition of recognised court
• dictionary, definition of State
• dictionary, definition of territory court
• dictionary, definition of tribunal
105 Further amendments, mentions of part 4
omit
part 4
substitute
part 4.2
in
• dictionary, definition of less serious violent offence
• dictionary, definition of serious violent offence
• dictionary, definition of similar act witness
• dictionary, definition of witness with a disability, paragraph (a)
106 Further amendments, mentions of pt
omit
pt
substitute
ch
in
• section 5 heading
• section 6 heading
• section 8 heading
• section 11 heading
• section 12 heading
• section 14 heading
• section 16 heading
• section 17 heading
• section 90 heading
• section 91 heading
• section 110 heading
• section 121 (3), definitions of audio link and territory court
Schedule 1 Consequential amendments
(see s 3)
Part 1.1 Children and Young People Act 2008
[1.1] Section 246, definition of privileged, paragraph (b)
omit
division 4.5
substitute
division 4.2.5
[1.2] Section 463 (5), example
substitute
Example—par (a)
The
, s 38 (d) provides that an interim order ends in certain circumstances when the final order is made. Applying par (a), the DVPO interim protection order ends when the care and protection order is made in those circumstances.
Part 1.2 Confiscation of Criminal Assets Act 2003
omit
part 3
substitute
chapter 3
omit
pt 3
substitute
ch 3
Part 1.3 Court Procedures Act 2004
substitute
(d) the following sections of the Evidence (Miscellaneous Provisions) Act 1991
:
(i) section 11 (Consequential orders—ch 2);
(ii) section 39 (Sexual and violent offence proceeding—evidence to be given in closed court);
(iii) section 44 (Consequential orders—div 4.2.3);
(iv) section 52 (c) (Application for leave under s 51);
(v) section 61 (5) (Preliminary examination of protected confidence evidence);
(vi) section 63 (2) (a) (Ancillary orders for protection of person who made protected confidence);
(vii) section 78 (Evidence may be given in closed court);
(viii) section 102 (Witness with vulnerability may give evidence in closed court);
(ix) section 111 (4) (Prohibition of publication of evidence etc); and
Part 1.4 Court Procedures Rules 2006
omit
div 3.4
substitute
pt 3.4
omit
div 3.2
substitute
pt 3.2
omit
section 40 (5) (Firearms and interim orders)
substitute
section 40 (5) (Interim orders—respondent’s firearms)
Part 1.6 Crimes (Forensic Procedures) Act 2000
[1.9] Section 38 (2) (a), note 2
omit
pt 3
substitute
ch 3
[1.10] Section 77C (2) (a), note 2
omit
pt 3
substitute
ch 3
Part 1.7 Crimes (Sentencing) Act 2005
omit
part 2
substitute
chapter 2
omit
part 4
substitute
part 4.2
omit
pt 5
substitute
ch 5
omit
division 4.5
substitute
division 4.2.5 (Protection of counselling communications)
Part 1.9 Evidence (Miscellaneous Provisions) Regulation 2009
insert
(3) In this section:
police officer includes a person who is a member of the police force of a State or another Territory if—
(a) provisions of the law of that State or Territory correspond (or substantially correspond) to the Act
, division 4.2.2A (Sexual and violent offence proceedings—audiovisual recording of police interview admissible as evidence); and
(b) the person is trained in the taking of evidence under those provisions.
Note Police officer—see the Legislation Act
, dictionary, pt 1.
omit
s 40 (Firearms and interim orders)
substitute
s 40 (Interim orders—respondent’s firearms)
omit
s 40 (Firearms and interim orders)
substitute
s 40 (Interim orders—respondent’s firearms)
[1.18] Section 119 (1), note 2
omit
s 40 (Firearms and interim orders)
substitute
s 40 (Interim orders—respondent’s firearms)
Part 1.11 Supreme Court Act 1933
[1.19] Section 37N (4), definition of audio link
omit
(Definitions for pt 3)
substitute
(Definitions—ch 3)
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 24 September 2015.
2 Notification
Notified under the
on 2015.
3 Republications of amended laws
For the latest republication of amended laws, see www.legislation.act.gov.au
.
© Australian Capital Territory 2015
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