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This is a Bill, not an Act. For current law, see the Acts databases.
SEXUAL AND VIOLENT OFFENCES LEGISLATION AMENDMENT BILL 2008
2008
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Sexual and
Violent Offences Legislation Amendment Bill 2008
Contents
Page
2008
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Sexual and Violent
Offences Legislation Amendment Bill 2008
A Bill for
An Act to amend the Evidence (Miscellaneous Provisions) Act 1991 and
the Magistrates Court Act 1930 in relation to sexual and violent
offences
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Sexual and Violent Offences Legislation Amendment Act
2008.
This Act commences on a day fixed by the Minister by written
notice.
Note 1 The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
Note 2 A single day or time may be fixed, or different days or times
may be fixed, for the commencement of different provisions (see Legislation Act,
s 77 (1)).
Note 3 If a provision has not commenced within 6 months beginning on
the notification day, it automatically commences on the first day after that
period (see Legislation Act, s 79).
Part
2 Evidence (Miscellaneous Provisions)
Act 1991
3 Legislation
amended—pt 2
This part amends the Evidence (Miscellaneous Provisions)
Act 1991.
substitute
37 Definitions—pt 4
In this part:
sexual offence means an offence against the Crimes Act
1900, part 3 (Sexual offences), part 4 (Female genital mutilation) or
part 5 (Sexual servitude).
Note A reference to an offence against a territory law includes a
reference to a related ancillary offence, eg attempt (see Legislation Act, s
189).
similar act witness means a witness in a sexual or violent
offence proceeding who gives, or intends to give, evidence in the proceeding
that—
(a) relates to an act committed on the witness by the accused; and
(b) is tendency evidence or coincidence evidence under the Evidence Act
1995 (Cwlth).
violent offence means a violent crime under the Victims of
Crime (Financial Assistance) Act 1983, section 3 (What is a violent
crime?).
witness with a disability means a person who gives, or
intends to give, evidence in a proceeding and has a mental or physical
disability that affects the person’s ability to give evidence.
substitute
Division 4.2 Sexual and violent offence
proceedings—general
6 Meaning
of complainant and sexual offence proceeding for div
4.2Section 38 (1)
substitute
(1) For this division, the complainant in relation to a
sexual or violent offence proceeding, is the person, or any of the people,
against whom a sexual or violent offence the subject of the proceeding is
alleged, or has been found, to have been committed.
7 Section
38 (4), new note
insert
Note A complainant is not required to attend and give evidence at a
committal proceeding in relation to a sexual offence (see Magistrates Court
Act 1930, s 90AA (11)).
8 New
sections 38A, 38B, 38C and 38D
insert
38A Meaning of violent offence
proceeding—div 4.2
(1) For this division, a violent offence proceeding
is––
(a) a proceeding for a violent offence; or
(b) a proceeding in relation to bail for a person charged with a violent
offence, whether or not the person is also charged with any other offence;
or
(c) a sentencing proceeding for a person convicted of a violent offence,
whether or not the person is also convicted of any other offence; or
(d) an appeal or other review (whether by prerogative order or otherwise)
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) For subsection (1) (a), a proceeding for a violent
offence includes—
(a) a proceeding for a violent offence and any other offence;
and
(b) a proceeding for a violent offence and any other offence as an
alternative to the violent offence; and
(c) a proceeding for a violent offence that may result in a finding of
guilt (or committal for trial or sentence) for any other offence.
(3) To remove any doubt, for this section, a proceeding
includes a committal proceeding.
38B Accused may be screened from witness in
court
(1) This section applies to any of the following people (the
witness) giving evidence in a sexual or violent offence
proceeding:
(a) the complainant;
(b) a similar act witness.
(2) The court may order that the courtroom be arranged in a way that,
while the witness is giving evidence, the witness cannot see—
(a) the accused person; or
(b) anyone else the court considers should be screened from the
witness.
(3) However, the witness must be visible to—
(a) the presiding judicial officer; and
(b) if the proceeding is a trial by jury—the jury; and
(c) the accused person; and
(d) the accused person’s lawyer; and
(e) if the court has ordered that someone should be screened from the
complainant or similar act witness—the person.
38C Cross-examination of complainant or prosecution
witness by self-represented accused person—procedure
(1) This section applies to any of the following people (a
witness) giving evidence for the prosecution in a sexual or
violent offence proceeding:
(a) the complainant;
(b) a child;
(c) a similar act witness;
(d) a witness with a disability.
(2) A self-represented accused person must not personally cross-examine a
witness.
(3) If the self-represented accused person intends to cross-examine a
witness, the court must—
(a) tell the person that the person must not cross-examine the witness
personally; and
(b) if the proceeding is a trial by jury—tell the jury that the
person must not cross-examine the witness personally; and
(c) ask the person if the person has sought legal representation for the
cross-examination of the witness; and
(d) if the court is satisfied that the person has not had a reasonable
opportunity to obtain legal representation for the cross-examination, and the
person applies for an adjournment to obtain the legal
representation—adjourn the proceeding; and
(e) if the court is satisfied that the person had a reasonable opportunity
to obtain legal representation for the cross-examination, and has not obtained
legal representation—
(i) order that the person obtain legal representation; and
(ii) make any other order the court considers necessary to secure legal
representation for the person; and
(iii) adjourn the proceeding.
(4) If the court makes an order under subsection (3) (e) (i),
the court must tell the self-represented accused person that if the person
refuses legal representation, or refuses to cooperate with the person’s
legal representative—
(a) the person may not cross-examine the witness; and
(b) the person may not adduce evidence from another witness in relation to
a fact in issue to contradict the evidence of the witness in relation to the
fact if the fact in the other witness’s evidence intended to contradict
the witness’s evidence has not been put to the witness in
cross-examination.
(5) If the proceeding is a trial by jury, the court must tell the jury
that—
(a) a self-represented accused person obtaining, or being provided with,
legal representation to cross-examine the witness 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 cross-examination is not
conducted personally by the self-represented accused person.
(6) In this section:
self-represented accused person, in a sexual or violent
offence proceeding, means an accused person who is not represented by a legal
practitioner in the proceeding.
38D Witness may have support person in
court
(1) This section applies to any of the following people (a
witness) giving evidence in a sexual or violent offence
proceeding:
(a) the complainant;
(b) a similar act witness.
(2) The court must, on application by a party who intends to call a
witness, order that the witness have a person (a support person)
in the court close to, and within the witness’s sight, while the witness
gives evidence.
(3) The court may order that a witness have more than 1 support person if
it considers it is in the interests of justice.
(4) The support person must not—
(a) speak for the witness during the proceeding; or
(b) otherwise interfere in the proceeding.
(5) Unless the court otherwise orders, the support person must not be, or
be likely to be, a witness or party in the proceeding.
(6) If the proceeding is a trial by jury, the court must tell the jury
that—
(a) a witness having a support person in the court while giving evidence
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 support person is
present.
substitute
39 Sexual and violent offence
proceeding—evidence to be given in closed court
(1) This section applies to any of the following people (a
witness) giving evidence in a sexual or violent offence
proceeding:
(a) the complainant;
(b) a similar act witness.
(2) The court may order that the court be closed to the public while all
or part of the witness’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 press and public in certain circumstances (see Human
Rights Act 2004, s 21 (2)).
(3) In deciding whether to order that the court be closed to the public,
the court must consider whether—
(a) the witness wants to give evidence in open court; and
(b) it is in the interests of justice that the witness give evidence in
open court.
(4) However, an order under this section does not stop a person nominated
by the witness from being in court when the witness gives evidence.
(5) In this section, a reference to a person giving evidence includes the
person giving evidence by the playing of an audiovisual recording of the
evidence at a hearing under division 4.2A (Sexual and violent offence
proceedings—audiovisual recording of police interview admissible as
evidence), division 4.2B (Sexual offence proceedings—giving evidence
at pre-trial hearing) or by the person giving evidence by audiovisual link under
division 4.3 (Sexual and violent offence proceedings—giving evidence from
places other than courtrooms).
substitute
40 Sexual offence proceeding—prohibition of
publication of complainant’s identity
11 New
divisions 4.2A and 4.2B
insert
Division 4.2A Sexual and violent offence
proceedings—audiovisual recording of police interview admissible as
evidence
40A Meaning of complainant—div
4.2A
For this division, the complainant, in relation to a sexual
or violent offence proceeding, is the person, or any of the people, against whom
a sexual or violent offence the subject of the proceeding is alleged, or has
been found, to have been committed.
40B Meaning of sexual offence
proceeding—div 4.2A
(1) For this division, a sexual offence proceeding
is—
(a) a proceeding for a sexual offence; or
(b) a sentencing proceeding for a person convicted of a sexual offence,
whether or not the person is also convicted of any other offence; or
(c) a proceeding under the Domestic Violence and Protection Orders Act
2001 in relation to a sexual offence; or
(d) a proceeding under the Victims of Crime (Financial Assistance) Act
1983 in relation to a sexual offence; or
(e) a proceeding by way of an inquest or inquiry in the Coroner’s
Court in relation to a sexual offence; or
(f) an appeal arising out of a proceeding mentioned in paragraphs (a)
to (e).
(2) For subsection (1) (a), a proceeding for a sexual
offence includes—
(a) a proceeding for a sexual offence and any other offence; and
(b) a proceeding for a sexual offence and any other offence as an
alternative to the sexual offence; and
(c) a proceeding for a sexual offence that may result in a finding of
guilt (or committal for trial or sentence) for any other offence.
40C Meaning of violent offence
proceeding—div 4.2A
(1) For this division, a violent offence proceeding
is––
(a) a proceeding for a violent offence; or
(b) a sentencing proceeding for a person convicted of a violent offence,
whether or not the person is also convicted of any other offence; or
(c) a proceeding under the Domestic Violence and Protection Orders Act
2001 in relation to a violent offence; or
(d) a proceeding under the Victims of Crime (Financial Assistance) Act
1983 in relation to a violent offence; or
(e) a proceeding by way of an inquest or inquiry in the Coroner’s
Court in relation to a violent offence; or
(f) an appeal arising out of a proceeding mentioned in paragraphs (a)
to (e).
(2) For subsection (1) (a), a proceeding for a violent
offence includes—
(a) a proceeding for a violent offence and any other offence;
and
(b) a proceeding for a violent offence and any other offence as an
alternative to the violent offence; and
(c) a proceeding for a violent offence that may result in a finding of
guilt (or committal for trial or sentence) for any other offence.
40D Meaning of witness—div
4.2A
(1) For this division, a witness is the complainant in a
sexual offence or a violent offence proceeding who—
(a) is a child; or
(b) is intellectually impaired.
(2) In this section:
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.
40E Meaning of audiovisual recording—div
4.2A
(1) For this division, an audiovisual recording is an
audiovisual recording that is of a witness answering questions of a prescribed
person in relation to the investigation of a sexual or violent offence.
(2) The audiovisual recording must include the following:
(a) the date when, and the place where, the recording was made;
(b) the times when the recording started and ended;
(c) the times when any break in questioning started and ended, and the
reason for the break;
(d) the name of each person present during any part of the
recording;
(e) for each person present during any part of the recording—the
part when the person was present.
(3) The audiovisual recording must—
(a) be certified by a prescribed person as an accurate record of the
witness answering the questions; and
(b) not be edited or changed, unless the court hearing the proceeding in
which the recording is tendered otherwise orders.
Example—court ordering
change
editing the recording 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).
40F Audiovisual recording may be admitted as
evidence
(1) An audiovisual recording may—
(a) be played at the hearing of a proceeding for the sexual or violent
offence to which it relates; and
(b) if the recording is played at the hearing—be admitted as the
witness’s evidence in chief in the proceeding as if the witness gave the
evidence at the hearing in person.
(2) However, the court may refuse to admit all or any part of the
audiovisual recording.
(3) The witness must not be in the courtroom, or visible to anyone in the
courtroom by audiovisual link, when the audiovisual recording is played at the
hearing.
(4) This section is subject to section 40J.
40G Audiovisual
recording—notice
(1) This section applies if the prosecutor in a sexual or violent offence
proceeding intends to tender an audiovisual recording as evidence.
(2) The prosecutor must give to the accused person—
(a) written notice that the prosecutor intends to tender the audiovisual
recording; and
(b) a copy of a transcript of the recording.
(3) The notice must state the following:
(a) each audiovisual recording the prosecutor intends to tender;
(b) that the accused person and the person’s lawyer are entitled to
see and listen to each recording at a police station or somewhere else decided
by the commissioner of police;
(c) the name of the person responsible (the responsible
person) for arranging access to each recording.
40H Audiovisual recording—notice for
access
(1) The accused person, or the person’s lawyer, must give written
notice to the responsible person to have access to an audiovisual
recording.
(2) The notice must state the following:
(a) the name of the accused person, and the person’s
lawyer;
(b) each audiovisual recording for which access is required.
40I Audiovisual recording—access to accused
person
(1) This section applies if an accused person, or the person’s
lawyer, gives notice under section 40H requesting access to an audiovisual
recording.
(2) The responsible person must give the person who gave notice access to
see and listen to the audiovisual recording as soon as practicable after
receiving the notice under section 40H.
(3) The person who gave notice may have access to an audiovisual recording
more than once.
(4) The accused person, and the person’s lawyer, must not be given,
or take a copy of, an audiovisual recording.
40J Audiovisual
recording—admissibility
(1) An audiovisual recording is admissible in a sexual or violent offence
proceeding only if—
(a) notice is given under section 40G; and
(b) a copy of a transcript of the recording is given to the accused
person, or the person’s lawyer, a reasonable time before the start of the
hearing of the proceeding; and
(c) the accused person, and the person’s lawyer, are given a
reasonable opportunity to see and listen to the recording.
(2) However, if the prosecutor fails to give notice under section 40G, the
audiovisual recording is admissible if—
(a) a copy of a transcript of the recording is given to the accused
person, or the person’s lawyer, a reasonable time before the start of the
hearing of the proceeding; and
(b) the accused person, and the person’s lawyer, are given a
reasonable opportunity to see and listen to the recording; and
(c) the court considers it is in the interests of justice to admit the
recording.
(3) This section does not prevent the parties consenting to the admission
in evidence of an audiovisual recording.
40K Audiovisual recording—jury
trial
(1) This section applies if—
(a) a sexual or violent offence proceeding is a trial by jury;
and
(b) an audiovisual recording is admitted in evidence in the
proceeding.
(2) The court must tell the jury that—
(a) admission of the audiovisual recording 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 audiovisual recording
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.
40L Transcript of audiovisual recording—access
to court
If an audiovisual recording is admitted in evidence in a sexual or violent
offence proceeding, the court may order that a transcript of the recording be
made available to the court.
40M Audiovisual
recording—offences
(1) A person commits an offence if the person, without
authority—
(a) possesses an audiovisual recording; or
(b) supplies, or offers to supply, an audiovisual recording to another
person; or
(c) plays, copies or erases, or allows someone else to play, copy or
erase, an audiovisual recording.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
(2) For this section, a person has authority in relation to
an audiovisual recording only if the person does something with the recording in
connection with the proceeding for which the recording is prepared, or a
re-trial or appeal in relation to the proceeding.
Division 4.2B Sexual offence
proceedings—giving evidence at pre-trial hearing
40N Meaning of complainant—div
4.2B
For this division, the complainant, in relation to a sexual
offence proceeding, is the person, or any of the people, against whom a sexual
offence the subject of the proceeding is alleged, or has been found, to have
been committed.
40O Meaning of sexual offence
proceeding—div 4.2B
(1) For this division, a sexual offence proceeding
is—
(a) a proceeding for a sexual offence; or
(b) a sentencing proceeding for a person convicted of a sexual offence,
whether or not the person is also convicted of any other offence; or
(c) a proceeding under the Domestic Violence and Protection Orders Act
2001 in relation to a sexual offence; or
(d) a proceeding under the Victims of Crime (Financial Assistance) Act
1983 in relation to a sexual offence; or
(e) a proceeding by way of an inquest or inquiry in the Coroner’s
Court in relation to a sexual offence; or
(f) an appeal arising out of a proceeding mentioned in paragraphs (a)
to (e).
(2) For subsection (1) (a), a proceeding for a sexual
offence includes—
(a) a proceeding for a sexual offence and any other offence; and
(b) a proceeding for a sexual offence and any other offence as an
alternative to the sexual offence; and
(c) a proceeding for a sexual offence that may result in a finding of
guilt (or committal for trial or sentence) for any other offence.
40P Meaning of witness—div
4.2B
(1) For this division, a witness is a prosecution witness in
a sexual offence proceeding who—
(a) is a child; or
(b) is intellectually impaired; or
(c) is a complainant who the court considers must give evidence as soon as
practicable because the complainant is likely to—
(i) suffer severe emotional trauma; or
(ii) be intimidated or distressed.
(2) In this section:
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.
40Q Witness to give evidence at pre-trial
hearing
(1) A witness must give the witness’s evidence at a pre-trial
hearing by audiovisual link from a place that—
(a) is not the courtroom in which the pre-trial hearing is held;
but
(b) is linked to the courtroom by an audiovisual link.
(2) However, the witness’s evidence in chief given at a pre-trial
hearing may include an audiovisual recording under division 4.2A (Sexual and
violent offence proceedings—audiovisual recording of police interview
admissible as evidence).
(3) If an audiovisual recording under division 4.2A is played at the
pre-trial hearing, the witness must not be visible to anyone in the courtroom by
audiovisual link when the audiovisual recording is played.
(4) While the witness is at the place to give evidence, the place is taken
for all purposes to be part of the courtroom in which the pre-trial hearing is
held.
(5) While the witness is at the place to give evidence—
(a) the accused person must not be at the place; and
(b) the witness must not be able to see or hear the accused person;
and
(c) the accused person must be able to see and hear the witness give
evidence; and
(d) the accused person must be able to communicate with the person’s
lawyer.
40R Who may be present at pre-trial
hearing
(1) Only the following people may be present in the courtroom at the
pre-trial hearing:
(a) the presiding judicial officer;
(b) the prosecutor;
(c) the accused person;
(d) the accused person’s lawyer;
(e) anyone else the court considers appropriate.
(2) While the witness is at a place to give evidence, only the following
people may be present at the place:
(a) a support person under section 38D (2) or section 81C;
(b) anyone else the court considers appropriate.
(3) Each person who is present at the place where the witness is to give
evidence must be recorded on the audiovisual recording recorded under section
40S.
(4) The judicial officer who presides at the pre-trial hearing need not be
the judicial officer who presides at the trial at which the audiovisual
recording of the witness’s evidence is tendered.
40S Evidence of witness at pre-trial hearing to be
evidence at hearing
(1) The evidence of a witness (including cross-examination and
re-examination) given under this division must be recorded as an audiovisual
recording.
(2) The evidence in chief of the witness may include an audiovisual
recording under section 40E (Meaning of audiovisual recording—div
4.2A).
(3) The audiovisual recording of the witness’s evidence
must—
(a) be played at the hearing of the sexual offence proceeding for which
the pre-trial hearing was held; and
(b) be admitted in evidence as the witness’s evidence at the hearing
as if the witness gave the evidence at the hearing in person.
(4) The witness must not be in the courtroom when the audiovisual
recording is played at the hearing.
40T Witness may be required to attend
hearing
(1) This section applies if an audiovisual recording of a witness’s
evidence given at a pre-trial hearing is admitted in evidence at the hearing of
a sexual offence proceeding.
(2) The accused person may apply to the court for an order that the
witness attend the hearing of the sexual offence proceeding to give further
evidence.
(3) The court must not make the order unless satisfied
that—
(a) if the witness had given evidence in person at the hearing of the
sexual offence proceeding, the witness could be recalled; and
(b) it is in the interests of justice to make the order.
(4) If the courtroom where the proceeding is heard and another place are
linked by an audiovisual link, a witness recalled to give evidence under this
section must give evidence by audiovisual link under division 4.3 (Sexual and
violent offence proceedings—giving evidence from places other than
courtrooms), unless the court otherwise orders.
(5) The court may make an order under subsection (4) only if satisfied
that—
(a) the witness prefers to give evidence in the courtroom; or
(b) if the order is not made—
(i) the sexual offence proceeding may be unreasonably delayed;
or
(ii) there is a substantial risk that the court will not be able to ensure
that the sexual offence proceeding is conducted fairly.
(6) While the witness is at the other place to give evidence, the place is
taken for all purposes to be part of the courtroom.
40U Evidence of witness at pre-trial
hearing—jury trial
(1) This section applies if—
(a) a sexual offence proceeding is a trial by jury; and
(b) an audiovisual recording of a witness’s evidence given at a
pre-trial hearing is admitted in evidence at the hearing of the
proceeding.
(2) The court must tell the jury that—
(a) the witness gave the evidence by audiovisual link at a pre-trial
hearing; and
(b) admission of the audiovisual recording is a usual practice;
and
(c) the jury must not draw any inference against the accused person, or
give the evidence more or less weight, because the evidence was given in that
way.
40V Recording of witness’s evidence at
pre-trial hearing admissible in related hearing
(1) This section applies if an audiovisual recording of a witness’s
evidence given at a pre-trial hearing is admitted in evidence at the hearing of
a sexual offence proceeding.
(2) The recording is admissible as the witness’s evidence in a
related proceeding unless the court in the related proceeding otherwise
orders.
(3) However, the court in the related proceeding may—
(a) refuse to admit all or any part of the audiovisual recording in
evidence; and
(b) if the court refuses to admit part of the recording in
evidence—order that the part that is not admitted be deleted from the
recording.
(4) A party in the related proceeding may apply to the court for an order
that the witness attend the hearing to give further evidence.
(5) The court must not make the order unless satisfied
that—
(a) the applicant has become aware of something that the applicant did not
know or could not reasonably have known when the audiovisual recording was
recorded; and
(b) if the witness had given evidence in person at the hearing, the
witness could be recalled; and
(c) it is in the interests of justice to make the order.
(6) In this section:
related proceeding, in relation to the proceeding in which
the audiovisual recording was admitted in evidence, means—
(a) a re-hearing or re-trial of, or appeal from, the hearing of the
proceeding; or
(b) another proceeding in the same court as the proceeding for the
offence, or another offence arising from the same, or the same set of,
circumstances; or
(c) a civil proceeding arising from the offence.
40W Audiovisual recording of child’s
evidence—admissibility
(1) This section applies if—
(a) a child has given evidence under this division; and
(b) the evidence is recorded as an audiovisual recording; and
(c) the child turns 18 years old before the audiovisual recording is
admitted in evidence.
(2) The admissibility of the audiovisual recording as evidence is not
affected only because the child turns 18 years old.
substitute
Division 4.3 Sexual and violent offence
proceedings—giving evidence from places other than
courtrooms
13 Meaning
of complainant and sexual offence proceeding for div
4.3Section 41 (1)
substitute
(1) For this division, the complainant, in relation to a
sexual or violent offence proceeding, is the person, or any of the people,
against whom a sexual or violent offence the subject of the proceeding is
alleged, or has been found, to have been committed.
14 Section
41 (4), new note
insert
Note A complainant is not required to attend and give evidence at a
committal proceeding in relation to a sexual offence (see Magistrates Court
Act 1930, s 90AA (11)).
insert
41A Meaning of violent offence
proceeding—div 4.3
(1) For this division, a violent offence proceeding
is––
(a) a proceeding for a violent offence; or
(b) a sentencing proceeding for a person convicted of a violent offence,
whether or not the person is also convicted of any other offence; or
(c) a proceeding under the Domestic Violence and Protection Orders Act
2001 in relation to a violent offence; or
(d) a proceeding under the Victims of Crime (Financial Assistance) Act
1983 in relation to a violent offence; or
(e) a proceeding by way of an inquest or inquiry in the Coroner’s
Court in relation to a violent offence; or
(f) an appeal or other review arising out of a proceeding mentioned in
paragraphs (a) to (e).
(2) For subsection (1) (a), a proceeding for a violent
offence includes—
(a) a proceeding for a violent offence and any other offence;
and
(b) a proceeding for a violent offence and any other offence as an
alternative to the violent offence; and
(c) a proceeding for a violent offence that may result in a finding of
guilt (or committal for trial or sentence) for any other offence.
(3) To remove any doubt, for this section, a proceeding
includes a committal proceeding.
substitute
42 When does div 4.3 apply?
This division applies if the complainant or a similar act witness is to
give evidence in a sexual or violent offence proceeding, whether the evidence is
to be given on oath or otherwise.
substitute
43 Giving evidence from place other than
courtroom
(1) This section applies if the courtroom where a sexual or violent
offence proceeding is heard and another place are linked by an audiovisual
link.
(2) The evidence of the complainant and each similar act witness must be
given by audiovisual link from the other place unless the court otherwise
orders.
(3) The court may make an order under subsection (2) only if
satisfied—
(a) that—
(i) for the complainant—the complainant prefers to give evidence in
the courtroom; and
(ii) for a similar act witness—the witness prefers to give evidence
in the courtroom; or
(b) if the order is not made—
(i) the sexual or violent offence proceeding may be unreasonably delayed;
or
(ii) there is a substantial risk that the court will not be able to ensure
that the sexual or violent offence proceeding is conducted fairly.
(4) While the complainant or similar act witness is at the other place to
give evidence, the place is taken for all purposes to be part of the
courtroom.
(5) While the complainant or similar act witness is at the other place to
give evidence—
(a) the accused person must not be at the place; and
(b) the witness must not be able to see or hear the accused person;
and
(c) the accused person must be able to see and hear the witness give
evidence; and
(d) the accused person must be able to communicate with the person’s
lawyer.
18 Consequential
orders under div 4.3Section
44
omit
complainant
substitute
complainant or similar act witness
omit
sexual offence
substitute
sexual or violent offence
20 Making
of orders under div 4.3Section 45
(1)
omit
sexual offence
substitute
sexual or violent offence
omit
or the complainant
substitute
, the complainant or a similar act witness
22 Jury
to be warned about adverse
inferencesSection 46
omit
sexual offence
substitute
sexual or violent offence
23 Failure
to comply with div 4.3Section 47
(1)
omit
If the complainant’s evidence
substitute
If the evidence of the complainant or a similar act witness
omit
sexual offence
substitute
sexual or violent offence
insert
Part 4A Evidence in any
proceedings
81B Meaning of witness with a
disability—pt 4A
For this part, a witness with a disability is a person who
gives evidence in a proceeding and has a mental or physical disability that
affects the person’s ability to give evidence.
81C Witness may have support person in
court
(1) This section applies to any of the following people (a
witness) giving evidence in a proceeding:
(a) a child;
(b) a witness with a disability.
(2) The court must, on application by a party that intends to call a
witness, order that the witness have a person (a support person)
in the court close to, and within the witness’s sight, while the witness
gives evidence.
(3) The court may order that a witness have more than 1 support person if
it considers it is in the interests of justice.
(4) The support person must not—
(a) speak for the witness during the proceeding; or
(b) otherwise interfere in the proceeding.
(5) Unless the court otherwise orders, the support person must not be, or
be likely to be, a witness or party in the proceeding.
(6) If the proceeding is a trial by jury, the court must tell the jury
that—
(a) a witness having a support person in the court while giving evidence
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 support person is
present.
81D Evidence given in closed
court
(1) This section applies to a person (the witness) giving
evidence in a proceeding if the court considers that the person has a disability
that affects the person’s ability to give evidence because
of—
(a) the circumstances of the proceeding; or
(b) the person’s circumstances.
Examples
1 the person is likely to suffer severe emotional trauma because of the
nature of the alleged offence
2 the person is intimidated or distressed because of the person’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 Legislation Act, s 126 and s 132).
(2) The court may order that the court be closed to the public while all
or part of the witness’s evidence (including evidence under
cross-examination) is given.
Note The accused is entitled to a fair and public hearing, but the
court may exclude the press and public in certain circumstances (see Human
Rights Act 2004, s 21 (2)).
(3) In deciding whether to order that the court be closed to the public,
the court must consider whether—
(a) the witness wants to give evidence in open court; and
(b) it is in the interests of justice that the witness give evidence in
open court.
(4) However, an order under this section does not stop a person nominated
by the witness from being in court when the witness gives evidence.
(5) In this section, a reference to a person giving evidence includes the
person giving evidence by the playing of an audiovisual recording of the
evidence at a hearing under division 4.2A (Sexual and violent offence
proceedings—audiovisual recording of police interview admissible as
evidence) or division 4.2B (Sexual offence proceedings—giving
evidence at pre-trial hearing).
26 Dictionary,
new definition of audiovisual recording
insert
audiovisual recording, for division 4.2A (Sexual and violent
offence proceedings—audiovisual recording of police interview admissible
as evidence)—see section 40E.
27 Dictionary,
definitions of complainant and sexual offence
proceeding
substitute
complainant—
(a) for division 4.2 (Sexual and violent offence
proceedings—general)—see section 38; and
(b) for division 4.2A (Sexual and violent offence
proceedings—audiovisual recording of police interview admissible as
evidence)—see section 40A; and
(c) for division 4.2B (Sexual offence proceedings—giving evidence at
pre-trial hearing)—see section 40N; and
(d) for division 4.3 (Sexual and violent offence proceedings—giving
evidence from places other than courtrooms)––see section 41;
and
(e) for division 4.4 (Evidence of complainant’s sexual reputation
and activities)––see section 48; and
(f) for division 4.6 (Sexual offence proceedings—directions and
warnings to juries)––see section 68.
sexual offence proceeding—
(a) for division 4.2 (Sexual and violent offence
proceedings—general)—see section 38; and
(b) for division 4.2A (Sexual and violent offence
proceedings—audiovisual recording of police interview admissible as
evidence)—see section 40B; and
(c) for division 4.2B (Sexual offence proceedings—giving evidence at
pre-trial hearing)—see section 40O; and
(d) for division 4.3 (Sexual and violent offence proceedings—giving
evidence from places other than courtrooms)––see section 41;
and
(e) for division 4.4 (Evidence of complainant’s sexual reputation
and activities)––see section 48; and
(f) for division 4.6 (Sexual offence proceedings—directions and
warnings to juries)––see section 68.
28 Dictionary,
new definitions
insert
similar act witness—for part 4 (Evidence in criminal
proceedings)—see section 37.
violent offence, for part 4 (Evidence in criminal
proceedings)—see section 37.
violent offence proceeding—
(a) for division 4.2 (Sexual and violent offence
proceedings—general)—see section 38A; and
(b) for division 4.2A (Sexual and violent offence
proceedings—audiovisual recording of police interview admissible as
evidence)—see section 40C; and
(c) for division 4.3 (Sexual and violent offence proceedings—giving
evidence from places other than courtrooms)—see section 41A.
witness—
(a) for division 4.2A (Sexual and violent offence
proceedings—audiovisual recording of police interview admissible as
evidence)—see section 40D; and
(b) for division 4.2B (Sexual offence proceedings—giving evidence at
pre-trial hearing)—see section 40P.
witness with a disability—
(a) for part 4 (Evidence in criminal proceedings)—see
section 37; and
(b) for part 4A (Evidence in any proceedings)—see section
81B.
Part
3 Magistrates Court Act
1930
29 Legislation
amended—pt 3
This part amends the Magistrates Court Act 1930.
30 Procedure
if informant proposes to tender written statements to court
Section 90 (7)
substitute
(7) Before the taking of the preliminary examination, the accused person
or the person’s lawyer may ask the informant to allow the accused person
or lawyer to—
(a) inspect the documents and things (if any) mentioned in the list given
to the accused person under subsection (2) (d); and
(b) if a statement is in the form of a transcript of a recording as
mentioned in section 90AA (3A)—listen to or view the
recording.
(8) The informant must comply with a request made under
subsection (7).
(9) However, this section does not entitle the accused person or the
person’s lawyer to be given or make a copy of the recording.
31 Written
statements may be admitted in
evidenceSection
90AA (3)
omit
A written statement
substitute
Subject to subsection (3A), a written statement
insert
(3A) A written statement that is in the form of a transcript of a
recording made by a police officer may be admitted in evidence by the court
if—
(a) the transcript is of a recording of an interview with a person during
which the person was questioned by the police officer in connection with the
investigation of an offence the subject of the proceeding; and
(b) the person—
(i) is a child; or
(ii) is intellectually impaired; and
(c) a police officer certifies that the statement is an accurate
transcript of the recording.
33 New
section 90AA (11) and (12)
insert
(11) However—
(a) a person must not be required to attend and give evidence at a
preliminary examination in relation to a sexual offence (whether or not the
examination relates also to another offence) if the person is a complainant in
relation to the sexual offence; and
(b) subsections (4), (7), (8) and (10) do not apply to a written statement
made by the person.
(12) In this section:
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.
proceeding for a sexual offence includes proceeding for a
sexual offence and any other offence.
sexual offence means an offence against the Crimes Act
1900, part 3 (Sexual offences), part 4 (Female genital mutilation) or
part 5 (Sexual servitude).
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2008.
2 Notification
Notified under the Legislation Act on 2008.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2008
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