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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Evidence (Hearsay Rule Exception) Amendment
Bill 2011
A BILL FOR
An Act to amend the Evidence
Act 1929.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment
provisions
Part 2—Amendment
of Evidence Act 1929
4Repeal of section 34CA
5Insertion of section
34LA
34LAAdmissibility of
evidence of out of court statements by certain alleged victims of sexual
offences
Schedule 1—Transitional
provision
1Transitional provision
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Evidence (Hearsay Rule Exception) Amendment
Act 2011.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Evidence
Act 1929
Section 34CA—delete the section
After section 34L insert:
34LA—Admissibility of evidence of out of court
statements by certain alleged victims of sexual offences
(1) Subject to this
section, in a trial of a charge of a sexual offence where the alleged victim of
the offence is a person to whom this section applies, the judge may, in his or
her discretion, admit evidence from a person of what the person heard the
alleged victim say (whether to the person or to some other person) out of court
(an out of court statement) if, after considering the nature of
the out of court statement, the circumstances in which it was made and any other
relevant factor, the judge is of the opinion that the evidence has sufficient
probative value to justify its admission.
(2)
Subsection (1) does not
apply to any statement made by the alleged victim (whether or not in answer to a
question) to an investigating or other authority as part of a formal interview
process conducted in relation to the alleged offence.
(3) Evidence of an out of court statement admitted under this section may
be used to prove the truth of the facts asserted in the statement.
(4) If—
(a) evidence of an out of court statement is admitted under this section;
and
(b) the prosecution calls the alleged victim as a witness and examines him
or her on the evidence,
cross-examination of the alleged victim may not extend to matters other
than the nature of the out of court statement and the circumstances in which it
was made unless—
(c) the alleged victim has given evidence about other matters;
or
(d) the judge is of the opinion that, even though the alleged victim has
not given evidence about other matters, cross-examination on other matters is
necessary to identify which parts of the evidence of the out of court statement
are in dispute and why.
(5) If—
(a) evidence of an out of court statement is admitted under this section
in a trial where the making of the statement, or the content or context of the
statement, is in issue; and
(b) the alleged victim, under cross-examination—
(i) wholly or partly fails to recall making the statement or matters
relating to the content or context of the statement; or
(ii) has a recollection that is wholly or partly inconsistent with the
evidence admitted under this section or with other evidence relevant to the
issue (including evidence of out of court statements admitted under other
provisions of this Act),
the judge must—
(c) explain to the jury that there may be good reason for the alleged
victim's failure to recall or inconsistent recollection; and
(d) direct the jury that the failure or inconsistency is not by itself a
reason to find that the statement was not made, or that its content or context
were different from the evidence admitted.
(6) If evidence of
an out of court statement is admitted under this section and the alleged victim
is not cross-examined on evidence relating to the out of court statement, the
judge must—
(a) warn the jury to treat the evidence that has not been tested by way of
cross-examination with particular care; and
(b) if of the opinion that, in the circumstances of the case, it is in the
interests of justice to do so—direct the jury to take into account that
the reason for the evidence not being so tested was because the defendant, for
whatever reason, chose not to cross-examine the alleged victim on the
evidence.
(7) This section applies to an alleged victim of a sexual offence who
is—
(a) a young child; or
(b) a person who suffers from a mental disability that adversely affects
the person's capacity to give a coherent account of the person's experiences or
to respond rationally to questions.
Schedule 1—Transitional
provision
(1) The amendments made by
Part 2 of this Act
to the Evidence
Act 1929 are intended to apply in respect of—
(a) proceedings for a sexual offence commenced but not determined before
the commencement of this clause; and
(b) proceedings for a sexual offence commenced after the commencement of
this clause.
(2) An order made by a court under the Evidence
Act 1929 as in force immediately before the commencement of this
clause will remain in force according to its terms.