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This is a Bill, not an Act. For current law, see the Acts databases.
Serial 146
Justice
Legislation Amendment (Vulnerable Witnesses) Bill
2015
Mr
Elferink
A Bill for an Act to amend legislation administered by the Attorney-General and Minister for Justice relating to vulnerable witnesses
NORTHERN TERRITORY OF AUSTRALIA
JUSTICE LEGISLATION AMENDMENT (VULNERABLE WITNESSES) ACT 2015
____________________
Act No. [ ] of 2015
____________________
Table of provisions
Part 7.3 Transitional matters for Justice Legislation Amendment (Vulnerable Witnesses) Act 2015
136 Proceedings already commenced
6A Application
of Criminal
Code
49ZC Contempt
of interstate entity
49ZD Conduct
constituting contempt of interstate
entity
55 Misleading
testimony
59 Contravention
of order
Division
3 Justice Legislation
Amendment (Vulnerable Witnesses) Act 2015
69 Definitions
70 Proceeding already commenced
71 Offence provisions – before and after commencement day
Part
1 Preliminary
matters
3AB Relationship
with Evidence (National Uniform Legislation) Act
3AC Application of Criminal Code
Part
2 Evidence and
Procedure for Sexual
Offences
11 Publication
or making of report
11A Contravention of order
11B Revealing identity of person
11C Contempt
13 Criminal
liability of executive officer of body corporate – evidential burden of
proof on defence
Division
2 Transitional matters
for Justice Legislation Amendment (Vulnerable Witnesses) Act 2015
15 Definitions
16 Proceedings already started
17 Application of sections 11, 11A and 11B before and after commencement
18 Application of section 13 before and after commencement
NORTHERN
TERRITORY OF AUSTRALIA
____________________
Act No. [ ] of 2015
____________________
An Act to amend legislation administered by the Attorney-General and Minister for Justice relating to vulnerable witnesses
[Assented to [ ] 2015]
[Second reading [ ] 2015]
The Legislative Assembly of the Northern Territory enacts as follows:
Part
1 Preliminary
matters
1 Short
title
This Act may be cited as the Justice Legislation Amendment (Vulnerable Witnesses) Act 2015.
This Act commences on the day fixed by the Administrator by Gazette notice.
Part
2 Amendment of Domestic and Family Violence
Act
3 Act
amended
This Part amends the Domestic and Family Violence Act.
(1) Section 104, definitions recorded statement and vulnerable witness
omit
(2) Section 104
insert (in alphabetical order)
recorded statement, see section 21A(1) of the Evidence Act.
vulnerable witness means:
(a) an adult who is a protected person; or
(b) a vulnerable witness as defined in section 21A(1) of the Evidence Act.
(1) Section 114(3)(a)
omit
all words after "the question"
insert
(a stated question) to an appointed person for the defendant;
(2) Section 114(3)(b)
omit
Court or authorised person must repeat the
insert
appointed person must repeat the stated
(3) After section 114(3)
insert
(3A) For subsection (3), the appointed person for a defendant is a person appointed by the Court for the purpose of a defendant's questioning of a witness.
(3B) However, the appointed person for a defendant must not do either of the following:
(a) ask the witness any other question except a stated question;
(b) give the defendant legal or other advice.
(3C) If a defendant who is not represented by a legal practitioner does not question the witness, the Court must warn the defendant that the defendant will not be permitted to adduce evidence in relation to a fact in issue in order to contradict the evidence of the witness.
(4) Section 114(4), after "the order"
insert
mentioned in subsection (2)
Part 7.2, heading, at the end
insert
for Domestic and Family Violence Act 2007
After section 135
insert
Part 7.3 Transitional matters for Justice Legislation Amendment (Vulnerable Witnesses) Act 2015
136 Proceedings already commenced
(1) This section applies in relation to a proceeding mentioned in section 105 of this Act that started before the commencement of this section.
(2) The provisions of this Act, as in force immediately before the commencement of this section, continue to apply to the proceeding.
Part
3 Amendment of Evidence
Act
8 Act
amended
This Part amends the Evidence Act.
Section 4
insert (in alphabetical order)
special sitting, for Part 3, see section 21A(1).
After section 6
insert
6A Application of Criminal Code
Part IIAA of the Criminal Code applies to an offence against this Act.
Note for section 6A
Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof. It also defines, or elaborates on, certain concepts commonly used in the creation of offences.
(1) Section 21A(1), definition vulnerable witness
omit
(2) Section 21A(1)
insert (in alphabetical order)
special sitting, of a court, means a sitting of the court held for the purpose of conducting an examination, or part of an examination, of a vulnerable witness in proceedings for a sexual offence or serious violence offence.
vulnerable witness means a witness in proceedings:
(a) who is a child; or
(b) who has a cognitive impairment or an intellectual disability; or
(c) who is the alleged victim of a sexual offence to which the proceedings relate; or
(d) whom a court considers to be vulnerable.
(3) After section 21A(1)
insert
(1A) In considering whether a witness is vulnerable, as mentioned in subsection (1), definition vulnerable witness, paragraph (d), the court may have regard to the following matters:
(a) any relevant condition or characteristic of the witness, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality;
(b) any mental or physical disability and to which the witness is, or appears to be, subject;
(c) any relationship between the witness and the defendant to the proceedings;
(d) any other matter the court considers relevant.
(1) Section 21B(1)
omit
of
insert
in respect of, or the hearing of a charge for,
(2) Section 21B(2)(b)(i)
omit
all words from "for" to "witness"
insert
in relation to the witness
(3) After section 21B(3)
insert
(3A) Without limiting subsection (3), when considering the prosecutor's request to admit a recorded statement or to hold a special sitting, the court must take into account whether a recorded statement can be played or a special sitting can be held in the courtroom for the proceedings.
(4) Section 21B(5)
omit
to the jury
insert
in the courtroom
Section 21C(2)
omit
to take evidence from a vulnerable witness
(1) Section 21D(2)(d)
omit
possible.
insert
possible;
(2) After section 21D(2)(d)
insert
(e) all efforts must be made to ensure that matters that may delay or interrupt a child's evidence in a proceeding are determined before a special sitting or trial commences.
Section 49ZC
repeal, insert
49ZC Contempt of interstate entity
(1) A person commits an offence if:
(a) the person intentionally engages in conduct; and
(b) the conduct results in contempt of the interstate entity (as defined in section 49ZD) and the person is reckless as to the result.
Maximum penalty: 100 penalty units or imprisonment for 6 months.
(2) It is a defence to a prosecution for an offence against subsection (1) if the defendant has a reasonable excuse.
49ZD Conduct constituting contempt of interstate entity
(1) A person's conduct results in contempt of the interstate entity if:
(a) the interstate entity has made an order requiring the person to do or not do something; and
(b) the order:
(i) was made orally to the person during proceedings; or
(ii) has been served on the person; and
(c) the person does not comply with the order.
(2) Also, a person's conduct results in contempt of the interstate entity if the person, while evidence is being given or a submission is being made in the Territory, by audiovisual link or audio link, in an interstate proceeding:
(a) insults, threatens, intimidates or obstructs the following in relation to the person's performance of functions or exercise of powers under this Act:
(i) a judge or other person presiding at or otherwise taking part in the proceeding;
(ii) a Master, Registrar, Deputy Registrar or other officer of the interstate entity who is taking part in or assisting in the proceeding;
(iii) a person appearing in the proceeding as a legal practitioner;
(iv) a witness in the proceeding;
(v) a juror in the proceeding; or
(b) interrupts, obstructs or hinders a proceeding of the interstate entity; or
(c) engages in any other conduct that, under a law of the Territory, would constitute contempt in the face of the court if the interstate proceeding were a Territory proceeding.
Section 55
repeal, insert
(1) A person who, in giving any testimony (either orally or in writing) otherwise than on oath where required to do so by an order under section 53, commits an offence if:
(a) the person intentionally gives testimony to the court or tribunal; and
(b) the person knows the testimony is misleading.
Maximum penalty: Imprisonment for 14 years.
(2) In this section:
misleading, in relation to testimony, means testimony that is misleading in a material particular or because of the omission of a material particular.
Section 59
repeal, insert
A person to whom an order under section 57 or 58 relates commits an offence if:
(a) the person intentionally engages in conduct; and
(b) the conduct results in a contravention of the order and the person is reckless as to the result.
Maximum penalty: 40 penalty units or imprisonment for 12 months.
18 Part 10, Division 3 inserted
After section 68
insert
Division 3 Justice Legislation Amendment (Vulnerable Witnesses) Act 2015
In this Division:
amending Act means the Justice Legislation Amendment (Vulnerable Witnesses) Act 2015.
commencement day means the commencement of Part 3 of the amending Act.
70 Proceeding already commenced
(1) If a proceeding commenced before the commencement day, the amending Act applies to that part of the proceeding that takes place on or after the commencement day.
(2) However, subsection (1) does not apply in relation to a trial or hearing in the proceeding that commenced before the commencement day and:
(a) continued on or after the commencement day; or
(b) was adjourned until the commencement day or after the commencement day.
(3) The provisions of this Act, as in force immediately before the commencement, apply to a trial or hearing mentioned in subsection (2).
71 Offence provisions – before and after commencement day
(1) The offence provisions, as amended by the amending Act, apply only in relation to offences committed after the commencement day.
(2) The offence provisions, as in force before the commencement day, continue to apply in relation to offences committed before the commencement day.
(3) For this section, if any of the conduct constituting an offence occurred before the commencement day, the offence is taken to have been committed before the commencement day.
(4) In this section:
offence provisions means the provisions of this Act that create or relate to offences committed against this Act (including in relation to criminal responsibility, defences and penalties).
Part
4 Amendment of Sexual Offences (Evidence and Procedure)
Act
19 Act
amended
This Part amends the Sexual Offences (Evidence and Procedure) Act.
Before section 1
insert
21 Sections 3AB, 3AC and Part 2 heading inserted
After section 3
insert
3AB Relationship with Evidence (National Uniform Legislation) Act
This Act applies in addition to, and does not affect the operation of, the Evidence (National Uniform Legislation) Act.
3AC Application of Criminal Code
Part IIAA of the Criminal Code applies to an offence against this Act.
Note for section 3AB
Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof. It also defines, or elaborates on, certain concepts commonly used in the creation of offences.
Part 2 Evidence and Procedure for Sexual Offences
(1) Section 5(1)(a)
omit
shall not be
insert
is not
(2) Section 5(1)(b)
omit, insert
(b) must not put any question (a stated question) to an appointed person for the defendant, and the appointed person must accurately repeat the question to the complainant.
(3) After section 5(1)
insert
(1A) For subsection (1)(b), the appointed person for a defendant is a person appointed by the Court for the purpose of a defendant's cross-examination of a complainant.
(1B) However, the appointed person for a defendant must not do either of the following:
(a) ask the complainant any other question except a stated question;
(b) give the defendant legal or other advice.
(4) Section 5(2)
omit
shall cause a warning to be issued
insert
must issue a warning
(5) After section 5(2)
insert
(3) If a defendant who is not represented by a legal practitioner does not cross-examine the complainant, the Judge must warn the defendant that the defendant will not be permitted to adduce evidence in relation to a fact in issue in order to contradict the evidence of the complainant.
Section 11
repeal, insert
11 Publication or making of report
A person commits an offence if:
(a) the person intentionally publishes or makes a report concerning an examination of witnesses or a trial; and
(b) the conduct mentioned in paragraph (a) results in a contravention of section 6 or 7 and the person is reckless as to the result.
Maximum penalty: 40 penalty units or imprisonment for 6 months.
A person who is required to comply with an order in relation to the publication or making of a report concerning an examination of witnesses or a trial commits an offence if:
(a) the person intentionally engages in conduct; and
(b) the conduct results in contravention of the order and the person is reckless as to the result.
Maximum penalty: 40 penalty units or imprisonment for 6 months.
11B Revealing identity of person
(1) A person commits an offence if:
(a) the person intentionally publishes or makes a statement or representation; and
(b) the statement or representation is not in a report mentioned in section 6 or 7; and
(c) the conduct mentioned in paragraph (a) results in revealing the name, address, school or place of employment of the following, and the person is reckless as to the result:
(i) a complainant, at any time;
(ii) a defendant, before the defendant is committed for trial or sentence upon a charge of having committed the sexual offence to which the statement or representation relates.
Maximum penalty: 40 penalty units or imprisonment for 6 months.
(2) Strict liability applies to subsection (1)(b).
(3) Subsection (1) does not apply if the statement or representation is made or published for an authorised purpose mentioned in section 12.
If a person is charged with, or found guilty of committing, an offence against section 11, 11A or 11B, a court may also deal with the person for contempt of court.
(1) Section 12, heading
omit
Authorized
insert
Authorised
(2) Section 12(1)
omit
section 11
insert
sections 11, 11A and 11B
(3) Section 12(1)
omit
authorized
insert
authorised
(4) Section 12(2) and (3)
omit
section 11(2)
insert
section 11B
Section 13
repeal, insert
13 Criminal liability of executive officer of body corporate – evidential burden of proof on defence
(1) An executive officer of a body corporate commits an offence if the body corporate commits an offence by contravening a declared provision (a relevant offence).
Maximum penalty: The maximum penalty that may be imposed on an individual for the relevant offence.
(2) An offence against subsection (1) is an offence of absolute liability.
(3) It is a defence to a prosecution for an offence against subsection (1) if:
(a) the defendant was not in a position to influence the conduct of the body corporate in relation to the contravention; or
(b) the defendant took reasonable steps to prevent the contravention; or
(c) the defendant did not know, and could not reasonably have been expected to know, that the contravention would happen.
(4) In deciding whether the defendant took (or failed to take) reasonable steps to prevent the contravention, a court must consider the following:
(a) any action the defendant took directed towards ensuring the following (to the extent the action is relevant to the contravention):
(i) the body corporate arranged regular professional assessments of the body corporate's compliance with the declared provision;
(ii) the body corporate implemented any appropriate recommendation arising from an assessment under subparagraph (i);
(iii) the body corporate's employees, agents and contractors had a reasonable knowledge and understanding of the requirement to comply with the declared provision;
(b) any action the defendant took when the defendant became aware that the contravention was, or could be, about to happen.
(5) Subsection (4) does not limit the matters the court may consider.
(6) This section does not affect the liability of the body corporate.
(7) This section applies whether or not the body corporate is prosecuted for, or found guilty of, the relevant offence.
(8) This section does not apply if the body corporate would have a defence to a prosecution for the relevant offence.
(9) In this section:
declared provision means:
(a) section 11, 11A or 11B; or
(b) a provision of the Regulations prescribed by regulation.
executive officer, of a body corporate, means a director or other person who is concerned with, or takes part in, the management of the body corporate.
26 Part 3 and Part 3, Division 1 headings inserted
After section 13
insert
Part 3 Transitional matters
Division 1 Transitional matters for Statute Law Amendment (Directors' Liability) Act 2015
Section 14, heading
omit
Transitional matters for Statute Law Amendment (Directors' Liability) Act 2015
insert
Offences – before and after commencement
28 Part 3, Division 2 inserted
After section 14
insert
Division 2 Transitional matters for Justice Legislation Amendment (Vulnerable Witnesses) Act 2015
In this Division:
amending Act means the Justice Legislation Amendment (Vulnerable Witnesses) Act 2015.
commencement means the commencement of Part 4 of the amending Act.
16 Proceedings already started
(1) If a proceeding in relation to a prosecution of a sexual offence started before the commencement, the amending Act applies only to the part of the proceeding that takes place after the commencement.
(2) However, subsection (1) does not apply in relation to an examination of witnesses or a trial started in the proceeding before the commencement if:
(a) the examination or trial continues after the commencement; or
(b) the proceeding was adjourned before the commencement during the examination or trial and continues after the commencement.
(3) The provisions of this Act, as in force immediately before the commencement, continue to apply to an examination of witnesses or a trial mentioned in subsection (2) as if the amending Act had not commenced.
17 Application of sections 11, 11A and 11B before and after commencement
(1) Sections 11, 11A and 11B, as inserted by the amending Act, apply only in relation to offences committed after the commencement.
(2) Section 11, as in force before the commencement, continues to apply in relation to offences committed before the commencement.
(3) For this section, if any of the conduct constituting an offence occurred before the commencement, the offence is taken to have been committed before the commencement.
18 Application of section 13 before and after commencement
(1) Section 13, as inserted by the amending Act, (the new section) applies in relation to a relevant offence committed by a body corporate after the commencement only if:
(a) all the conduct constituting the relevant offence occurred after the commencement; and
(b) all the conduct of the executive officer constituting the offence against the new section occurred after the commencement.
(2) Section 13, as in force before the commencement:
(a) continues to apply in relation to offences committed by a body corporate before the commencement; and
(b) applies in relation to relevant offences committed by a body corporate after the commencement to which, as a result of subsection (1), the new section does not apply.
This Act expires on the day after it commences.
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