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Criminal Procedure Amendment
(Vulnerable Persons) Bill 2006
No , 2006
A Bill for
An Act to amend the Criminal Procedure Act 1986 to make further provision with
respect to the giving of evidence in proceedings by children and intellectually
impaired persons and to consequentially repeal the Evidence (Children) Act 1997;
and for other purposes.
Clause 1 Criminal Procedure Amendment (Vulnerable Persons) Bill 2006
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Criminal Procedure Amendment (Vulnerable Persons) 3
Act 2006. 4
2 Commencement 5
This Act commences on a day or days to be appointed by proclamation. 6
3 Amendment of Criminal Procedure Act 1986 No 209 7
The Criminal Procedure Act 1986 is amended as set out in Schedule 1. 8
4 Consequential amendment of other Acts 9
The Acts specified in Schedule 2 are amended as set out in that 10
Schedule. 11
5 Repeal of Evidence (Children) Act 1997 No 143 12
The Evidence (Children) Act 1997 is repealed. 13
6 Repeal of Evidence (Children) Regulation 2004 14
The Evidence (Children) Regulation 2004 is repealed. 15
7 Repeal of Act 16
(1) This Act is repealed on the day following the day on which all of the 17
provisions of this Act have commenced. 18
(2) The repeal of this Act does not, because of the operation of section 30 19
of the Interpretation Act 1987, affect any amendment made by this Act. 20
Page 2
Criminal Procedure Amendment (Vulnerable Persons) Bill 2006
Amendment of Criminal Procedure Act 1986 Schedule 1
Schedule 1 Amendment of Criminal Procedure Act 1
1986 2
(Section 3) 3
[1] Section 76 4
Omit the section. Insert instead: 5
76 Recordings of interviews with vulnerable persons 6
(1) A written statement may be in the form of a transcript of a 7
recording made by an investigating official of an interview with 8
a vulnerable person, during which the vulnerable person was 9
questioned by the investigating official in connection with the 10
investigation of the commission or possible commission of the 11
offence (as referred to in section 306R), but only if this section is 12
complied with. 13
(2) The copy of the transcript of the recording must be certified by an 14
investigating official as an accurate transcript of the recording 15
and served on the accused person in accordance with section 75. 16
(3) The accused person must be given, in accordance with the 17
regulations under section 306V (2), a reasonable opportunity to 18
listen to and, in the case of a video recording, to view, the 19
recording. 20
(4) However, if the requirements of the regulations under section 21
306V (2) have not been complied with, the recording may be 22
admitted if the court is satisfied that: 23
(a) the parties consent to the recording being admitted, or 24
(b) the accused person and his or her lawyer (if any) have been 25
given a reasonable opportunity otherwise than in 26
accordance with such regulations to listen to or view the 27
recording and it would be in the interests of justice to admit 28
the recording. 29
(5) Nothing in this Division requires the prosecutor to serve on the 30
accused person a copy of the actual recording made by an 31
investigating official of an interview with the vulnerable person 32
(other than a transcript of the record). 33
(6) This section does not affect section 306V (2). 34
(7) Section 79 (3) does not apply to or in relation to a written 35
statement certified under this section. 36
Page 3
Criminal Procedure Amendment (Vulnerable Persons) Bill 2006
Schedule 1 Amendment of Criminal Procedure Act 1986
(8) In this section: 1
investigating official has the same meaning as it has in Part 6 of 2
Chapter 6. 3
vulnerable person has the same meaning as it has in Part 6 of 4
Chapter 6. 5
Note. Part 6 of Chapter 6 allows vulnerable persons (children and 6
intellectually impaired persons) to give evidence of a previous 7
representation in the form of a recording made by an investigating official 8
of an interview with the vulnerable person. Section 306V (2) (which is 9
contained in that Part) provides that such evidence is not to be admitted 10
unless the accused person and his or her lawyer have been given a 11
reasonable opportunity to listen to or view the recording. 12
[2] Section 91 Witness may be directed to attend 13
Insert after section 91 (7): 14
(7A) A direction may not be given under this section so as to require 15
the attendance of the complainant in proceedings for a prescribed 16
sexual offence if the complainant is an intellectually impaired 17
person (within the meaning of Part 6 of Chapter 6). 18
[3] Section 185 19
Omit the section. Insert instead: 20
185 Recording of interviews with vulnerable persons 21
(1) If the prosecutor intends to call a vulnerable person to give 22
evidence in proceedings, the brief of evidence may include a 23
transcript of a recording made by an investigating official of an 24
interview with the vulnerable person, during which the 25
vulnerable person was questioned by the investigating official in 26
connection with the investigation of the commission or possible 27
commission of the offence (as referred to in section 306R). 28
(2) A copy of the transcript of the recording must be certified by an 29
investigating official as an accurate transcript of the recording 30
and served on the accused person in accordance with section 183. 31
(3) A brief of evidence that includes a transcript of a recording of an 32
interview with a vulnerable person is not required also to include 33
a written statement from the vulnerable person concerned. 34
(4) The transcript of the recording is taken, for the purposes of this 35
Division, to be a written statement taken from the vulnerable 36
person. Accordingly, any document or other thing identified in 37
the transcript as a proposed exhibit forms part of the brief of 38
evidence. 39
Page 4
Criminal Procedure Amendment (Vulnerable Persons) Bill 2006
Amendment of Criminal Procedure Act 1986 Schedule 1
(5) Nothing in this Division requires the prosecutor to serve on the 1
accused person a copy of the actual recording made by an 2
investigating official of an interview with the vulnerable person. 3
(6) This section does not affect section 306V (2). 4
(7) In this section: 5
investigating official has the same meaning as it has in Part 6 of 6
Chapter 6. 7
vulnerable person has the same meaning as it has in Part 6 of 8
Chapter 6. 9
Note. Part 6 of Chapter 6 allows vulnerable persons (children and 10
intellectually impaired persons) to give evidence of a previous 11
representation in the form of a recording made by an investigating official 12
of an interview with the vulnerable person. Section 306V (2) (which is 13
contained in that Part) provides that such evidence is not to be admitted 14
unless the accused person and his or her lawyer have been given a 15
reasonable opportunity to listen to or view the recording. 16
[4] Section 274 Application 17
Insert at the end of the section: 18
Note. Certain provisions of Part 6 (Giving of evidence by vulnerable 19
persons) of this Chapter extend to evidence given in proceedings of a 20
civil nature arising from certain offences (for example, see section 21
306ZA (c)). 22
[5] Sections 291 (2) and (5), 291C (1) and 306E (3) 23
Omit "the Evidence (Children) Act 1997" wherever occurring. 24
Insert instead "Part 6". 25
[6] Section 291A Other parts of proceedings may be heard in camera 26
Omit section 291A (6) (b). Insert instead: 27
(b) the entitlement of a vulnerable person (within the meaning 28
of Part 6) to have a person present when giving evidence 29
under section 306ZK. 30
[7] Section 291B Incest offence proceedings to be held entirely in camera 31
Omit section 291B (3) (b). Insert instead: 32
(b) the entitlement of a vulnerable person (within the meaning 33
of Part 6) to have a person present when giving evidence 34
under section 306ZK. 35
Page 5
Criminal Procedure Amendment (Vulnerable Persons) Bill 2006
Schedule 1 Amendment of Criminal Procedure Act 1986
[8] Section 294A Arrangements for complainant in prescribed sexual 1
offence proceedings giving evidence when accused person is 2
unrepresented 3
Omit "section 28 of the Evidence (Children) Act 1997" from section 294A (5). 4
Insert instead "section 306ZL". 5
[9] Section 294B Giving of evidence by complainant in prescribed sexual 6
offence proceedings--alternative arrangements 7
Omit "child if Part 4 of the Evidence (Children) Act 1997" from section 8
294B (2). 9
Insert instead "vulnerable person (within the meaning of Part 6) if Division 4 10
of that Part". 11
[10] Section 294C Complainant entitled to have support person or persons 12
present when giving evidence 13
Omit "the Evidence (Children) Act 1997" from section 294C (2) (a). 14
Insert instead "Part 6". 15
[11] Section 294C (6) 16
Omit "If the complainant is under the age of 16 years when the evidence is 17
given, section 27 of the Evidence (Children) Act 1997 does not apply.". 18
[12] Section 294C (7) and (8) 19
Insert after section 294C (6) (before the note): 20
(7) If the complainant is a vulnerable person (within the meaning of 21
Part 6) when the evidence is given, section 306ZK does not 22
apply. 23
(8) Nothing in this section affects any entitlement a complainant has 24
under section 275B. 25
Page 6
Criminal Procedure Amendment (Vulnerable Persons) Bill 2006
Amendment of Criminal Procedure Act 1986 Schedule 1
[13] Chapter 6, Part 6 1
Insert after Part 5: 2
Part 6 Giving of evidence by vulnerable persons 3
Division 1 Preliminary 4
306M Definitions 5
(1) In this Part: 6
child protection prohibition order means a prohibition order 7
within the meaning of the Child Protection (Offenders 8
Prohibition Orders) Act 2004, and includes an interim child 9
protection prohibition order made under that Act. 10
court, in relation to a proceeding referred to in section 306ZA (d), 11
includes the Victims Compensation Tribunal. 12
courtroom, in relation to a proceeding referred to in section 13
306ZA (d), includes the place where the Victims Compensation 14
Tribunal is sitting. 15
intellectually impaired person--see subsection (2). 16
investigating official means: 17
(a) a police officer (other than a police officer who is engaged 18
in covert investigations), or 19
(b) in relation to the questioning of a child--a person who is 20
engaged, in conjunction with an investigating official 21
described in paragraph (a), in an investigation caused to be 22
made by the Director-General of the Department of 23
Community Services under section 27 of the Children and 24
Young Persons (Care and Protection) Act 1998, or 25
(c) any other person prescribed by the regulations for the 26
purposes of this definition. 27
personal assault offence means any of the following offences: 28
(a) an offence under Part 3 of the Crimes Act 1900, 29
(b) an offence under section 545B or 562AB of the Crimes Act 30
1900, 31
(c) an offence under section 562I or 562ZG of the Crimes Act 32
1900, 33
(d) an offence under section 227 of the Children and Young 34
Persons (Care and Protection) Act 1998, 35
(e) an offence that includes the commission of, or an intention 36
to commit, any of the above offences, 37
Page 7
Criminal Procedure Amendment (Vulnerable Persons) Bill 2006
Schedule 1 Amendment of Criminal Procedure Act 1986
(f) an offence of attempting, or of conspiracy or incitement, to 1
commit any of the above offences. 2
recording means: 3
(a) an audio recording, or 4
(b) a video recording, or 5
(c) a video recording accompanied by a separately but 6
contemporaneously recorded audio recording. 7
vulnerable person means a child or an intellectually impaired 8
person. 9
(2) For the purposes of this Part, a person is intellectually impaired 10
if the person has: 11
(a) an appreciably below average general intellectual 12
function, or 13
(b) a cognitive impairment (including dementia or autism) 14
arising from, or as a result of, an acquired brain injury, 15
neurological disorder or a developmental disorder, or 16
(c) any other intellectual disability. 17
Note. See section 306P as to the application of this Part to the giving of 18
evidence by intellectually impaired persons. 19
306N Words and expressions used in Evidence Act 1995 20
(1) Words and expressions that are defined in the Evidence Act 1995 21
and that are used in this Part have the same meanings in this Part 22
as they have in the Evidence Act 1995. 23
(2) This section applies except so far as the context or subject-matter 24
otherwise indicates or requires. 25
(3) However, this section does not apply to a word or expression 26
defined in section 306M. 27
306O Relationship to Evidence Act 1995 28
The provisions of this Part are in addition to the provisions of the 29
Evidence Act 1995 and do not, unless a contrary intention is 30
shown, affect the operation of that Act. 31
306P Application of Part 32
(1) To the extent that this Part applies to children, this Part applies 33
(unless a contrary intention is shown) in relation to evidence 34
given by a child who is under the age of 16 years at the time the 35
evidence is given. 36
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Criminal Procedure Amendment (Vulnerable Persons) Bill 2006
Amendment of Criminal Procedure Act 1986 Schedule 1
(2) To the extent that this Part applies to intellectually impaired 1
persons, this Part applies (unless a contrary intention is shown) in 2
relation to evidence given by an intellectually impaired person in 3
the manner provided by this Part only if the court is satisfied that 4
the facts of the case may be better ascertained if the person's 5
evidence is given in such a manner. 6
Division 2 Recording of out of court statements 7
306Q Regulations may require interviews with vulnerable persons to be 8
recorded 9
If the regulations so require, an investigating official who 10
questions a vulnerable person in connection with the 11
investigation of the commission or possible commission of an 12
offence by the person or any other person is, in accordance with 13
any such regulations, to record any representation made by the 14
vulnerable person in the course of the interview during which the 15
vulnerable person is questioned. 16
Division 3 Giving evidence of out of court 17
representations 18
306R Evidence to which this Division applies 19
(1) This Division applies to evidence of a previous representation of 20
a vulnerable person made in the course of an interview during 21
which the person is questioned by an investigating official in 22
connection with the investigation of the commission or possible 23
commission of an offence. 24
(2) To the extent that this Division applies to intellectually impaired 25
persons, this Division does not apply to evidence of a previous 26
representation made before the commencement of this Division. 27
306S Ways in which evidence of vulnerable person may be given 28
(1) Subject to this Part, a vulnerable person may give evidence of a 29
previous representation to which this Division applies made by 30
the person in any criminal proceeding wholly or partly: 31
(a) in the form of a recording of the previous representation 32
made by an investigating official of the interview in the 33
course of which the previous representation was made and 34
that is viewed or heard, or both, by the court, or 35
(b) orally in the courtroom, or 36
Page 9
Criminal Procedure Amendment (Vulnerable Persons) Bill 2006
Schedule 1 Amendment of Criminal Procedure Act 1986
(c) if the evidence is given in any proceeding to which 1
Division 4 applies--in accordance with alternative 2
arrangements made under section 306W. 3
Note. See section 306ZA. 4
(2) Evidence in the form of a recording given by a child under 5
subsection (1) (a) is not required to be served on a party to any 6
proceeding (including proceedings in relation to apprehended 7
violence commenced under Part 15A of the Crimes Act 1900). 8
(3) Nothing in this section affects the giving of evidence by means of 9
a written statement for the purposes of Division 3 of Part 2 of 10
Chapter 3. 11
Note. See also section 306ZN. 12
306T Wishes of vulnerable person to be taken into account 13
(1) A person must not call a vulnerable person to give evidence of a 14
previous representation to which this Division applies made by 15
the vulnerable person by means other than a recording made by 16
an investigating official of the interview in the course of which 17
the previous representation was made unless the person has taken 18
into account any wishes of the vulnerable person, considered in 19
the light of: 20
(a) in the case of a child--the child's age and understanding, 21
or 22
(b) in the case of an intellectually impaired person--the 23
person's intellectual impairment. 24
(2) However, subsection (1) does not permit a person to require a 25
vulnerable person to express the vulnerable person's wishes in 26
relation to the matter. 27
306U Vulnerable person entitled to give evidence in chief in form of 28
recording 29
(1) A vulnerable person is entitled to give, and may give, evidence in 30
chief of a previous representation to which this Division applies 31
made by the person wholly or partly in the form of a recording 32
made by an investigating official of the interview in the course of 33
which the previous representation was made and that is viewed or 34
heard, or both, by the court. The vulnerable person must not, 35
unless the person otherwise chooses, be present in the court, or be 36
visible or audible to the court by closed-circuit television or by 37
means of any similar technology, while it is viewing or hearing 38
the recording. 39
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Criminal Procedure Amendment (Vulnerable Persons) Bill 2006
Amendment of Criminal Procedure Act 1986 Schedule 1
(2) Subject to section 306Y, a person is entitled to give, and may give 1
(no matter what age the person is when the evidence is given), 2
evidence as referred to in subsection (1) in the form of a recording 3
of a previous representation to which this Division applies made 4
by the person when the person was less than 16 years of age. 5
Note. Under section 306Y, a court may order that a vulnerable person 6
not give evidence in the form of a recording if it is satisfied that it is not 7
in the interests of justice for the evidence to be given by a recording. 8
(3) If a vulnerable person who gives evidence as referred to in 9
subsection (1) is not the accused person in the proceeding, the 10
vulnerable person must subsequently be available for 11
cross-examination and re-examination: 12
(a) orally in the courtroom, or 13
(b) if the evidence is given in any proceeding to which 14
Division 4 applies--in accordance with alternative 15
arrangements made under section 306W. 16
(4) Subsection (3) does not apply in relation to committal 17
proceedings. 18
(5) Section 5BBA of the Evidence (Audio and Audio Visual Links) 19
Act 1998 does not apply to evidence given as referred to in 20
subsection (1). 21
306V Admissibility of recorded evidence 22
(1) The hearsay rule and the opinion rule (within the meaning of the 23
Evidence Act 1995) do not prevent the admission or use of 24
evidence of a previous representation to which this Division 25
applies given by a vulnerable person under this Division in the 26
form of a recording made by an investigating official. 27
(2) Evidence of a previous representation to which this Division 28
applies of a vulnerable person who is not the accused person in a 29
proceeding that is given by the vulnerable person in the form of 30
a recording made by an investigating official is not to be admitted 31
unless it is proved that the accused person and his or her lawyer 32
(if any) were given, in accordance with the regulations, a 33
reasonable opportunity to listen to and, in the case of a video 34
recording, view the recording. 35
(3) However, if the requirements of any regulations made under 36
subsection (2) have not been complied with, the recording may be 37
admitted if the court is satisfied that: 38
(a) the parties consent to the recording being admitted, or 39
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Criminal Procedure Amendment (Vulnerable Persons) Bill 2006
Schedule 1 Amendment of Criminal Procedure Act 1986
(b) the accused person and his or her lawyer (if any) have been 1
given a reasonable opportunity otherwise than in 2
accordance with such regulations to listen to or view the 3
recording and it would be in the interests of justice to admit 4
the recording. 5
(4) The court may rule as inadmissible the whole or any part of the 6
contents of a recording adduced as evidence under this Division. 7
306W Alternative arrangements for giving evidence 8
The court may order that alternative arrangements be made in 9
accordance with Division 4 for the giving of evidence by the 10
vulnerable person in any proceeding to which that Division 11
applies. 12
306X Warning to jury 13
If a vulnerable person gives evidence of a previous representation 14
wholly or partly in the form of a recording made by an 15
investigating official in accordance with this Division in any 16
proceedings in which there is a jury, the judge must warn the jury 17
not to draw any inference adverse to the accused person or give 18
the evidence any greater or lesser weight because of the evidence 19
being given in that way. 20
306Y Evidence not to be given in form of recording if contrary to 21
interests of justice 22
(1) A vulnerable person must not give evidence by means of a 23
recording made by an investigating official in accordance with 24
this Division if the court orders that such means not be used. 25
(2) The court may only make such an order if it is satisfied that it is 26
not in the interests of justice for the vulnerable person's evidence 27
to be given by a recording. 28
306Z Transcripts of recordings 29
The court may order that a transcript be supplied to the court or, 30
if there is a jury, to the jury, or both, of all or part of evidence of 31
a previous representation to which this Division applies made by 32
a vulnerable person that is given in the form of a recording if it 33
appears to the court that a transcript would be likely to aid its or 34
the jury's comprehension of the evidence. 35
Page 12
Criminal Procedure Amendment (Vulnerable Persons) Bill 2006
Amendment of Criminal Procedure Act 1986 Schedule 1
Division 4 Giving of evidence by closed-circuit 1
television 2
306ZA Application of Division 3
This Division applies to the following proceedings: 4
(a) a proceeding in which it is alleged that a person has 5
committed a personal assault offence, 6
(b) a proceeding in relation to an application for an 7
apprehended violence order, or a variation or revocation of 8
such an order, 9
(c) a civil proceeding arising from the commission of a 10
personal assault offence, 11
(d) a proceeding before the Victims Compensation Tribunal in 12
respect of the hearing of a matter arising from the 13
commission of a personal assault offence that is the subject 14
of an appeal or a reference to it, 15
(e) a proceeding in relation to an application for a child 16
protection prohibition order or to vary or revoke any such 17
order or a proceeding in relation to a contravention of any 18
such order. 19
306ZB Vulnerable persons have a right to give evidence by closed-circuit 20
television 21
(1) Subject to this Part, a vulnerable person who gives evidence in 22
any proceeding to which this Division applies is entitled to give 23
that evidence by means of closed-circuit television facilities or by 24
means of any other similar technology prescribed for the 25
purposes of this section. 26
(2) Subject to subsections (4) and (5), a child who is 16 or more but 27
less than 18 years of age at the time evidence is given in a 28
proceeding to which this Division applies is entitled to give the 29
evidence as referred to in subsection (1) if the child was under 30
16 years of age when the charge for the personal assault offence 31
to which the proceedings relate was laid. 32
(3) A vulnerable person may choose not to give evidence by the 33
means referred to in subsection (1). 34
(4) A vulnerable person must not give evidence by means of 35
closed-circuit television facilities or any other prescribed 36
technology if the court orders that such means not be used. 37
Page 13
Criminal Procedure Amendment (Vulnerable Persons) Bill 2006
Schedule 1 Amendment of Criminal Procedure Act 1986
(5) The court may only make such an order if it is satisfied that there 1
are special reasons, in the interests of justice, for the vulnerable 2
person's evidence not to be given by such means. 3
(6) This section does not apply to a vulnerable person: 4
(a) who is the accused or defendant in any proceeding referred 5
to in section 306ZA (a), (b) or (c), or 6
(b) who is or was accused of committing the offence that gave 7
rise to a proceeding referred to in section 306ZA (d). 8
(7) Nothing in this section affects the operation of section 13 of the 9
Evidence Act 1995. 10
306ZC Accused vulnerable persons may be allowed to give evidence by 11
closed-circuit television 12
(1) This section applies to a vulnerable person who is the accused 13
person, or person against whom a complaint is made, in any 14
proceeding to which this Division applies. 15
(2) The court may make an order permitting a vulnerable person's 16
evidence in a proceeding to which this Division applies to be 17
given by means of closed-circuit television facilities or any other 18
similar technology prescribed for the purposes of this section. 19
(3) Such an order may be made in relation to a child only if the court 20
is satisfied: 21
(a) that the child may suffer mental or emotional harm if 22
required to give evidence in the ordinary way, or 23
(b) that the facts may be better ascertained if the child's 24
evidence is given in accordance with such an order. 25
(4) A court may make an order under this section permitting a 26
vulnerable person to whom this section applies who is an accused 27
detainee within the meaning of the Evidence (Audio and Audio 28
Visual Links) Act 1998 to give evidence in a proceeding to which 29
this Division applies by means of closed-circuit television 30
facilities or any other similar technology prescribed for the 31
purposes of this section despite Part 1B of that Act. 32
(5) A vulnerable person may choose not to give evidence by means 33
of closed-circuit television facilities or other similar technology. 34
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Criminal Procedure Amendment (Vulnerable Persons) Bill 2006
Amendment of Criminal Procedure Act 1986 Schedule 1
306ZD Giving evidence by closed-circuit television 1
(1) If the evidence of a vulnerable person who is entitled or permitted 2
to give evidence by means of closed-circuit television facilities or 3
any other similar technology under this Division is given from a 4
location outside a court, that location is taken to be part of the 5
court in which the proceeding is being held. 6
(2) If the evidence of a vulnerable person who is entitled or permitted 7
to give evidence by means of closed-circuit television facilities or 8
any other similar technology under this Division is given from a 9
location outside a court, the court may order: 10
(a) that a court officer be present at that other location, and 11
(b) that any other person be present with the vulnerable person 12
as an interpreter, for the purpose of assisting the vulnerable 13
person with any difficulty in giving evidence associated 14
with an impairment or a disability, or for the purpose of 15
providing the vulnerable person with other support. 16
(3) Any such order does not limit the entitlement that a vulnerable 17
person has under section 306ZK to choose another person to be 18
present with him or her when giving evidence. 19
(4) Nothing in this section affects any entitlement a vulnerable 20
person has under section 275B. 21
306ZE Giving identification evidence when closed-circuit television is 22
used 23
(1) Subject to subsection (4), if a vulnerable person is entitled to give 24
evidence by means of closed-circuit television facilities or any 25
other similar technology, that person may not give identification 26
evidence by those means. 27
(2) However, such a person is entitled to refuse to give identification 28
evidence until after the completion of the person's other evidence 29
(including examination in chief, cross-examination and 30
re-examination). 31
(3) In addition, the court must ensure that such a person is not in the 32
presence of the accused for any longer than is necessary for the 33
vulnerable person to give identification evidence. 34
(4) Subsection (1) does not prevent the giving of identification 35
evidence by means of closed-circuit television facilities or any 36
other similar technology that relates to evidence that is not a fact 37
in issue. 38
Note. Identification evidence is defined in the Evidence Act 1995. 39
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Criminal Procedure Amendment (Vulnerable Persons) Bill 2006
Schedule 1 Amendment of Criminal Procedure Act 1986
306ZF Proceedings may be moved to allow use of closed-circuit 1
television facilities 2
(1) This section applies if a vulnerable person is entitled or permitted 3
to give evidence by means of closed-circuit television facilities or 4
any other similar technology under this Division. 5
(2) If the court is not equipped with such facilities or technology, or 6
it otherwise considers it appropriate to do so, the court may 7
adjourn the proceeding or any part of the proceeding to a court or 8
place that is equipped with such facilities or technology so that 9
the vulnerable person's evidence may be given by such means. 10
306ZG Use of closed-circuit television or similar technology 11
Closed-circuit television facilities or similar technology used 12
under this Division for the giving of evidence by a vulnerable 13
person are to be operated in such a manner that the persons who 14
have an interest in the proceeding are able to see the vulnerable 15
person (and any person present with the vulnerable person) on the 16
same or another television monitor. 17
306ZH Vulnerable persons have a right to alternative arrangements for 18
giving evidence when closed-circuit television facilities not 19
available 20
(1) This section applies to any proceeding in which a vulnerable 21
person is entitled or permitted to give evidence by means of 22
closed-circuit television facilities or other similar technology (by 23
virtue of section 306ZB or an order made under section 306ZC) 24
but does not do so because: 25
(a) such facilities and such technology are not available (and 26
the court does not move the proceeding under section 27
306ZF), or 28
(b) the vulnerable person chooses not to give evidence by 29
those means, or 30
(c) the court orders that the vulnerable person may not give 31
evidence by those means (or, in the case of a vulnerable 32
person to whom section 306ZC applies, the court does not 33
order that the vulnerable person may give evidence by 34
those means). 35
(2) In such a proceeding, the court must make alternative 36
arrangements for the giving of evidence by the vulnerable person, 37
in order to restrict contact (including visual contact) between the 38
vulnerable person and any other person or persons. 39
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Criminal Procedure Amendment (Vulnerable Persons) Bill 2006
Amendment of Criminal Procedure Act 1986 Schedule 1
(3) Those alternative arrangements may include any of the 1
following: 2
(a) the use of screens, 3
(b) planned seating arrangements for people who have an 4
interest in the proceeding (including the level at which 5
they are seated and the people in the vulnerable person's 6
line of vision), 7
(c) the adjournment of the proceeding or any part of the 8
proceeding to other premises. 9
(4) A vulnerable person may choose not to use any such alternative 10
arrangements. In that case, the court must direct that the 11
vulnerable person be permitted to give evidence orally in the 12
courtroom. 13
(5) Any premises to which a proceeding is adjourned under this 14
section are taken to be part of the court in which the proceeding 15
is being heard. 16
306ZI Warning to jury 17
(1) In any criminal proceeding in which the evidence of a vulnerable 18
person is given by means of closed-circuit television facilities or 19
any other similar technology (by virtue of section 306ZB), the 20
judge must: 21
(a) inform the jury that it is standard procedure for the 22
evidence of vulnerable persons in such cases to be given by 23
those means, and 24
(b) warn the jury not to draw any inference adverse to the 25
accused person or give the evidence any greater or lesser 26
weight because of the use of those facilities or that 27
technology. 28
(2) In any criminal proceeding in which the evidence of a vulnerable 29
person is given by means of closed-circuit television facilities or 30
any other similar technology (by virtue of section 306ZC), the 31
judge must warn the jury not to draw any inference adverse to the 32
accused person or give the evidence any greater or lesser weight 33
because of the use of those facilities or that technology. 34
(3) In any criminal proceeding in which arrangements are made for 35
a person to be with a vulnerable person giving evidence (by virtue 36
of section 306ZD or 306ZK), the judge must: 37
(a) inform the jury that it is standard procedure in such cases 38
for vulnerable persons to choose a person to be with them, 39
and 40
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Criminal Procedure Amendment (Vulnerable Persons) Bill 2006
Schedule 1 Amendment of Criminal Procedure Act 1986
(b) warn the jury not to draw any inference adverse to the 1
accused person or give the evidence any greater or lesser 2
weight because of the presence of that person. 3
(4) In any criminal proceeding in which alternative arrangements for 4
the giving of evidence by a vulnerable person are made (by virtue 5
of section 306ZH or 306ZL), the judge must: 6
(a) inform the jury that it is standard procedure in such cases 7
for alternative arrangements to be used when vulnerable 8
persons give evidence, and 9
(b) warn the jury not to draw any inference adverse to the 10
accused person or give the evidence any greater or lesser 11
weight because of the use of those alternative 12
arrangements. 13
Division 5 Miscellaneous 14
306ZJ Validity of proceedings not affected 15
(1) The failure of a vulnerable person to give evidence in accordance 16
with a provision of this Part does not affect the validity of any 17
proceeding or any decision made in connection with that 18
proceeding. 19
(2) The failure of an investigating official to record a representation 20
of a child in accordance with any regulations made under section 21
306Q does not affect the validity of any proceeding in which 22
evidence of the representation is given. 23
306ZK Vulnerable persons have a right to presence of a supportive 24
person while giving evidence 25
(1) This section applies to: 26
(a) a criminal proceeding in any court, and 27
(b) a civil proceeding arising from the commission of a 28
personal assault offence, and 29
(c) a proceeding in relation to a complaint for an apprehended 30
violence order, and 31
(d) a proceeding before the Victims Compensation Tribunal in 32
respect of the hearing of a matter arising from the 33
commission of a personal assault offence that is the subject 34
of an appeal or a reference to it, and 35
(e) a proceeding in relation to an application for a child 36
protection prohibition order or to vary or revoke any such 37
order. 38
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Criminal Procedure Amendment (Vulnerable Persons) Bill 2006
Amendment of Criminal Procedure Act 1986 Schedule 1
(2) A vulnerable person who gives evidence in a proceeding to which 1
this section applies is entitled to choose a person whom the 2
vulnerable person would like to have present near him or her 3
when giving evidence. 4
(3) Without limiting a vulnerable person's right to choose such a 5
person, that person: 6
(a) may be a parent, guardian, relative, friend or support 7
person of the vulnerable person, and 8
(b) may be with the vulnerable person as an interpreter, for the 9
purpose of assisting the vulnerable person with any 10
difficulty in giving evidence associated with an 11
impairment or a disability, or for the purpose of providing 12
the vulnerable person with other support. 13
(4) To the extent that the court or tribunal considers it reasonable to 14
do so, the court or tribunal must make whatever direction is 15
appropriate to give effect to a vulnerable person's decision to 16
have such a person present near the vulnerable person, and within 17
the vulnerable person's sight, when the vulnerable person is 18
giving evidence. 19
(5) The court or tribunal may permit more than one support person to 20
be present with the vulnerable person if the court or tribunal 21
thinks that it is in the interests of justice to do so. 22
(6) This section extends to a vulnerable person who is the accused or 23
the defendant in the relevant proceeding. 24
Note. This section does not apply if a child or intellectually impaired 25
person giving evidence is a complainant in proceedings for a prescribed 26
sexual offence. In that case, section 294C sets out the entitlements of 27
the child or intellectually impaired person to have one or more support 28
persons present when giving evidence. 29
306ZL Vulnerable persons have a right to alternative arrangements for 30
giving evidence when accused is unrepresented 31
(1) This section applies to a criminal proceeding in any court, or a 32
civil proceeding arising from the commission of a personal 33
assault offence, in which the accused or defendant is not 34
represented by a lawyer. 35
(2) A vulnerable person who is a witness (other than the accused or 36
the defendant) in a proceeding to which this section applies is to 37
be examined in chief, cross-examined or re-examined by a person 38
appointed by the court instead of by the accused or the defendant. 39
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Criminal Procedure Amendment (Vulnerable Persons) Bill 2006
Schedule 1 Amendment of Criminal Procedure Act 1986
(3) If any such person is appointed, that person is to ask the 1
vulnerable person only the questions that the accused or the 2
defendant requests the person to put to the vulnerable person. 3
(4) A person appointed under this section, when acting in the course 4
of his or her appointment, must not independently give the 5
accused or the defendant legal or other advice. 6
(5) The court may choose not to appoint such a person if the court 7
considers that it is not in the interests of justice to do so. 8
(6) This section applies whether or not closed-circuit television 9
facilities or other similar technology is used to give evidence, and 10
whether or not alternative arrangements under section 306ZH are 11
used in the proceedings. 12
(7) Anything done or omitted to be done by a person who: 13
(a) is appointed under this section, and 14
(b) is an Australian lawyer, 15
when acting in the course of the appointment or otherwise in 16
accordance with this section does not, if the thing was done or 17
omitted to be done in good faith, subject the person personally to 18
any action, liability, claim or demand. 19
306ZM Court orders 20
The court may make, vary or revoke an order under a provision 21
of this Part either on its own motion or on application by a party 22
to the proceeding or by the vulnerable person giving evidence. 23
306ZN General discretion of court not affected 24
Unless a contrary intention is shown, nothing in this Part limits 25
any discretion that a court has with respect to the conduct of a 26
proceeding. 27
Note. See, for example, Part 3.11 (Discretions to exclude evidence) of 28
the Evidence Act 1995. 29
306ZO Regulations 30
Without limiting any regulations made under section 4, the 31
regulations may make provision for or with respect to the use of 32
closed-circuit television facilities or other similar technology for 33
the giving of evidence by vulnerable persons in accordance with 34
this Part. 35
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Criminal Procedure Amendment (Vulnerable Persons) Bill 2006
Amendment of Criminal Procedure Act 1986 Schedule 1
306ZP Rules of court 1
(1) Rules of court may (subject to any regulations made under this 2
Act) be made in respect of the giving of evidence under this Part. 3
(2) In particular, rules of court may (subject to the regulations) also 4
make provision for or with respect to the use of closed-circuit 5
television facilities or other similar technology for the giving of 6
evidence by vulnerable persons in accordance with this Part. 7
[14] Schedule 2 Savings, transitional and other provisions 8
Insert at the end of clause 1 (1): 9
Criminal Procedure Amendment (Vulnerable Persons) Act 2006 10
[15] Schedule 2 11
Insert at the end of the Schedule with appropriate Part and clause numbers: 12
Part Provisions consequent on enactment of 13
Criminal Procedure Amendment 14
(Vulnerable Persons) Act 2006 15
Definition 16
In this Part: 17
amending Act means the Criminal Procedure Amendment 18
(Vulnerable Persons) Act 2006. 19
Amendments 20
The amendments made to this Act by the amending Act do not 21
extend to any proceedings commenced before the 22
commencement of the amendments and any such proceedings are 23
to be dealt with as if the amending Act had not been enacted. 24
Effect of repeal of Evidence (Children) Act 1997 25
Any proceedings to which the Evidence (Children) Act 1997 26
applied that were pending immediately before the repeal of that 27
Act by the amending Act are to continue to be dealt with as if that 28
Act had not been repealed. 29
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Criminal Procedure Amendment (Vulnerable Persons) Bill 2006
Schedule 2 Consequential amendment of other Acts
Schedule 2 Consequential amendment of other Acts 1
(Section 4) 2
2.1 Children (Criminal Proceedings) Act 1987 No 55 3
Section 11 Publication and broadcasting of names 4
Omit "Part 3 of the Evidence (Children) Act 1997" from section 11 (6). 5
Insert instead "Division 3 of Part 6 of Chapter 6 of the Criminal Procedure Act 6
1986". 7
2.2 Crimes Act 1900 No 40 8
[1] Section 562ZH Measures to protect children in AVO proceedings 9
Omit "Parts 3 and 4 of the Evidence (Children) Act 1997" from section 10
562ZH (5) (as inserted by the Crimes Amendment (Apprehended Violence) Act 11
2006). 12
Insert instead "Divisions 3 and 4 of Part 6 of Chapter 6 of the Criminal 13
Procedure Act 1986". 14
[2] Section 562ZH (6) (as inserted by the Crimes Amendment (Apprehended 15
Violence) Act 2006) 16
Omit "Part 3 of the Evidence (Children) Act 1997". 17
Insert instead "Division 3 of Part 6 of Chapter 6 of the Criminal Procedure Act 18
1986". 19
[3] Section 562ZN Right to presence of supportive person 20
Omit "child to whom section 27 of the Evidence (Children) Act 1997" from 21
section 562ZN (1) (as inserted by the Crimes Amendment (Apprehended 22
Violence) Act 2006). 23
Insert instead "person to whom section 306ZK of the Criminal Procedure Act 24
1986". 25
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Criminal Procedure Amendment (Vulnerable Persons) Bill 2006
Consequential amendment of other Acts Schedule 2
2.3 Evidence (Audio and Audio Visual Links) Act 1998 No 105 1
Section 5 Application of Act 2
Omit "Part 4 of the Evidence (Children) Act 1997" from the note to section 3
5 (1A). 4
Insert instead "Division 4 of Part 6 of Chapter 6 of the Criminal Procedure Act 5
1986". 6
Page 23
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