Measures to Combat Serious and Organised Crime Act 2001 (136 of 2001)

Schedule 3 Protection of children in proceedings for sexual offences

Crimes Act 1914

1 Before Part 1B

Insert:

Part IAD - Protection of children in proceedings for sexual offences

Division 1 - Introduction

15Y Proceedings to which this Part applies

(1) This Part applies to any proceedings for:

(a) an offence against Part IIIA of this Act (Child sex tourism); or

(b) an offence against section 71.8 of the Criminal Code (Sexual assault of United Nations and associated personnel); or

(d) a sexual offence specified in the regulations; or

(e) an offence that includes the commission of, or the intention to commit, an offence of a kind referred to in paragraph (a), (b), (c) or (d); or

(f) an offence of:

(i) attempting to commit; or

(ii) conspiring to commit; or

(iii) inciting the commission of;

an offence of a kind referred to in paragraph (a), (b), (c), (d) or (e).

(2) This Part also applies to any proceedings, including committal proceedings or proceedings of a similar kind, connected with proceedings of a kind referred to in subsection (1).

15YA Definitions

In this Part, unless the contrary intention appears:

child means a person who is under 18.

child complainant , in relation to a proceeding, means a child who is, or is alleged to be, a victim of an offence, of a kind referred to in subsection 15Y(1), to which the proceeding relates. The child need not be involved in the proceeding or the initiation of the proceeding.

child witness , in relation to a proceeding, means a child (including a child complainant) who is a witness in the proceeding.

closed-circuit television includes any similar technology specified in the regulations.

credibility has the meaning given by the Evidence Act 1995.

cross-examination has the meaning given by the Evidence Act 1995.

evidence in chief means evidence given in examination in chief within the meaning of the Evidence Act 1995.

proceeding means a proceeding to which this Part applies under section 15Y.

Division 2 - Admissibility of evidence

15YB Evidence of sexual reputation

(1) Evidence of a child witness' or child complainant's reputation with respect to sexual activities is inadmissible in a proceeding, unless the court gives leave.

(2) The court must not give leave unless satisfied that the evidence is substantially relevant to facts in issue in the proceeding.

(3) The evidence is not to be treated as substantially relevant to facts in issue merely because of inferences it may raise as to the child witness' or child complainant's general disposition.

(4) If the evidence is admitted, it must not be treated as relevant to the child witness' or child complainant's credibility.

(5) This section does not apply if the child is a defendant in the proceeding.

15YC Evidence of sexual experience

(1) Evidence of a child witness' or child complainant's experience with respect to sexual activities is inadmissible in a proceeding, unless:

(a) the court gives leave; or

(b) the evidence is of sexual activities with a defendant in the proceeding.

(2) The court must not give leave unless satisfied that:

(a) the evidence is substantially relevant to facts in issue in the proceeding; or

(b) if the evidence relates to the credibility of a child witness and is to be adduced in cross-examination of the child - the evidence has substantial probative value.

(3) The evidence is not to be treated as being substantially relevant to facts in issue merely because of inferences it may raise as to the child witness' or child complainant's general disposition.

(4) Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to:

(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and

(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.

(5) This section does not apply if the child is a defendant in the proceeding.

15YD Leave under this Division

(1) An application for leave under this Division:

(a) must be in writing; and

(b) if there is a jury in the proceeding in question - must be made in the jury's absence; and

(c) must not be determined before the court has considered such submissions and other evidence as it thinks necessary for determining the application.

(2) If the court gives leave under this Division, the court must:

(a) state its reasons in writing; and

(b) cause those reasons to be entered in the court's records.

Division 3 - Cross-examination

15YE Disallowing inappropriate or aggressive cross-examination

(1) The court may disallow a question put to a child witness in cross-examination in a proceeding if the question is inappropriate or unnecessarily aggressive.

(2) In considering whether a question is inappropriate or unnecessarily aggressive, the court is to have regard to the child witness' personal characteristics, including his or her age, culture, mental capacity and gender.

15YF Unrepresented defendants - cross-examination of child complainants

(1) A defendant in a proceeding who is not represented by counsel is not to cross-examine a child complainant.

(2) A person appointed by the court is to ask the child any questions that the defendant requests the person to ask the child.

15YG Unrepresented defendants - cross-examination of child witnesses

(1) A defendant in a proceeding who is not represented by counsel is not to cross-examine a child witness (other than a child complainant), unless the court gives leave.

(2) The court must not give leave unless satisfied that the child's ability to testify under cross-examination will not be adversely affected if the defendant conducts the cross-examination.

(3) In considering whether that ability will be adversely affected, the court is to have regard to any trauma that could be caused if the defendant conducts the cross-examination.

(4) An application for leave under this section:

(a) must be in writing; and

(b) must not be determined before the court has considered such submissions and other evidence as it thinks necessary for determining the application.

(5) If the court refuses leave, a person appointed by the court is to ask the child any questions that the defendant requests the person to ask the child.

15YH Represented defendants - cross-examination of child witnesses and child complainants

A defendant in a proceeding who is represented by counsel is not to cross-examine a child witness or a child complainant except through counsel.

Division 4 - Special facilities for child witnesses to give evidence

15YI Closed-circuit television

(1) A child witness' evidence in a proceeding must be given by means of closed-circuit television unless:

(a) the child is at least 16 and chooses not to give evidence by that means; or

(b) the court orders that the child is not to give evidence by that means; or

Note: Section 15YL provides for alternative arrangements if a child witness does not give evidence by means of closed-circuit television.

(2) The court must not make an order under paragraph (1)(b) unless satisfied that it is not in the interests of justice for the child witness' evidence to be given by means of closed-circuit television.

(3) This section does not affect the operation of any law in relation to the competence of a person to give evidence.

15YJ Giving evidence by closed-circuit television

(1) If the child witness' evidence is given by means of closed-circuit television from a location outside a courtroom:

(a) that location is taken to be part of the courtroom in which the proceeding is being held; and

(b) the court may order that a court officer be present at that location; and

(i) to act as an interpreter; or

(ii) to assist the child with any difficulty in giving evidence associated with a disability; or

(iii) to provide the child with other support.

(2) An order under paragraph (1)(b) or (c) does not limit the operation of section 15YM.

(3) The court may adjourn the proceeding, or a part of the proceeding, to a court or other place that is equipped with facilities for evidence to be given by means of closed-circuit television if:

(a) the court is not equipped with facilities for evidence to be given by means of closed-circuit television; or

(b) the court otherwise considers it appropriate to do so.

15YK Viewing evidence given by closed-circuit television

If the child witness' evidence is given by means of closed-circuit television, the facilities used are to be operated in such a way that the people who have an interest in the proceeding can see the child, and any person present with the child, on one or more television monitors.

15YL Alternative arrangements for giving evidence

(1) If a child witness' evidence in a proceeding is not to be given by means of closed-circuit television, the court:

(a) must make arrangements in order to restrict contact (including visual contact) that the child may have with any defendant while giving evidence; and

(b) may make arrangements in order to restrict contact (including visual contact) that the child may have with members of the public while giving evidence.

(2) The arrangements may include either of the following:

(a) using screens;

(b) planning seating arrangements for people who have an interest in the proceeding, including:

(i) the level at which they are seated; and

(ii) the people in the child's line of vision.

(3) This section does not apply if the child is at least 16 and chooses not to give evidence under the arrangements.

Division 5 - Use of video recordings

15YM Use of video recordings

(1) A video recording of an interview of a child witness in a proceeding may be admitted as evidence in chief if:

(a) a constable, or a person of a kind specified in the regulations, conducted the interview; and

(b) the court gives leave.

(2) The court must not give leave if satisfied that it is not in the interest of justice for the child's evidence in chief to be given by a video recording.

(3) An application for leave under this section:

(a) must be in writing; and

(b) must not be determined before the court has considered such submissions and other evidence as it thinks necessary for determining the application.

(4) The child witness must be available for cross-examination and re-examination if he or she gives evidence in chief by a video recording.

Note: Division 4 provides for this evidence to be given using closed-circuit television or other arrangements.

15YN Admissibility of evidence given using video recordings

(1) The admissibility of the evidence given by video recording is not affected by the fact that it is evidence of previous representations that the child witness made in the interview that was being recorded.

(2) Evidence given by video recording under section 15YM is not admissible if the court is satisfied that:

(a) any defendant in the proceeding (other than the child witness if the child is a defendant); or

(b) the defendant's lawyer (if any);

was not given a reasonable opportunity to listen to and view the recording.

(3) The court may refuse to admit the whole or part of the contents of a recording adduced as evidence under section 15YM.

Division 6 - Miscellaneous

15YO Adults accompanying child witnesses

(1) A child witness may choose an adult to accompany the child while the child is giving evidence in a proceeding (including while giving evidence by closed-circuit television).

(2) The adult so chosen may accompany the child as mentioned in subsection (1), unless the court determines that it is not appropriate for the adult to accompany the child.

(3) The court may permit more than one adult to accompany the child if the court considers it in the interests of justice to do so.

(4) An adult accompanying the child under this section must not:

(a) prompt the child or otherwise influence the child's answers; or

(b) disrupt the questioning of the child.

(5) Any words spoken by an adult accompanying the child under this section must be able to be heard by:

(a) the judge; and

(b) if there is a jury in the proceeding - the members of the jury.

15YP Exclusion of people from the courtroom

The court may order that some or all of the members of the public be excluded from the courtroom in which a child witness is giving evidence in a proceeding.

15YQ Warnings etc. not to be given about children's evidence

If there is a jury in a proceeding in which a child witness has given or will give evidence, the judge is not to warn the jury, or suggest to the jury in any way:

(a) that the law regards children as an unreliable class of witness; or

(b) that the law requires greater or lesser weight to be given to evidence that is given by closed-circuit television or alternative arrangements under Division 4; or

(c) that the law requires greater or lesser weight to be given to evidence that is given by a video recording under Division 5; or

(d) that the law requires greater or lesser weight to be given to evidence because an adult accompanies the child under section 15YO.

15YR Publication identifying child witnesses or child complainants

(1) A person commits an offence if:

(a) the person publishes any matter; and

(b) the person does not have the leave of the court to publish the matter; and

(i) identifies another person (who is not a defendant in the proceeding) as a child witness or a child complainant in relation to the proceeding; or

(ii) is likely to lead to the other person being identified as such a child witness or child complainant.

Penalty: Imprisonment for 12 months, or 60 penalty units, or both.

(2) This section does not apply if the publication is in:

(a) an official publication in the course of, and for the purpose of, the proceeding; or

(b) a document prepared for use in particular legal proceedings (whether or not the legal proceedings are a proceeding within the meaning of this Part).

Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

(3) The court may give leave to a person to publish the matter.

(4) In deciding whether to give leave, the court is to have regard to:

(a) any trauma to the child witness or child complainant that the publication could cause; and

(b) any damage to the reputation of the child witness or child complainant that the publication could cause; and

(i) for the purpose of supplying transcripts of the proceedings to persons with a genuine interest in the proceedings; or

(ii) for genuine research purposes.

(5) Leave may be given after the proceedings have finished. For this purpose, the court need not be constituted by the same judicial officers who constituted the court in the proceedings.

(6) An application for leave under this section:

(a) must be in writing; and

(b) must not be determined before the court has considered such submissions and other evidence as it thinks necessary for determining the application.

15YS General powers of a court

(1) The power of a court to control the conduct of a proceeding is not affected by this Part, except so far as this Part provides otherwise expressly or by necessary intendment.

(2) In particular, the powers of a court to control the questioning of witnesses are not affected.

(3) The power of a court to give leave under this Part includes the power to give such leave subject to conditions.

15YT Division 5 of Part IIIA unaffected

Nothing in this Part affects the operation of Division 5 of Part IIIA (Child sex tourism - video link evidence).

Copyright notice

You are free to copy, adapt, modify, transmit and distribute material on this website as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).