Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Act 2024 (114 of 2024)

Schedule 1   Amendments

Crimes Act 1914

27   After Division 2 of Part IAD

Insert:

Division 2A - Evidence recording hearings

15YDA Application

This Division applies to a person (the vulnerable person ) as follows:

(a) for a child proceeding - a child witness;

(b) for a vulnerable adult proceeding - a vulnerable adult complainant;

(c) for a special witness proceeding - a special witness for whom an order under subsection 15YAB(3) is in force for this Division.

15YDB Evidence recording hearings

(1) The court may, if it is satisfied that it is in the interests of justice to do so, order a hearing (the evidence recording hearing ) for the vulnerable person to give evidence.

(2) For the purposes of subsection (1), the court must take into account:

(a) whether each party to the proceeding has sufficient time to prepare for the evidence recording hearing and the proceeding; and

(b) the availability of:

(i) the prosecutor in the proceeding; and

(ii) if the defendant has a legal representative - the defendant's legal representative; and

(iii) if the defendant does not have a legal representative - the defendant; and

(c) the circumstances and wishes of the vulnerable person; and

(d) the availability of court and other facilities to enable the video or audio recording of evidence given at the evidence recording hearing.

(3) The order may relate to some or all of the following:

(a) evidence in chief;

(b) cross-examination;

(c) re-examination.

Note: For rules about cross-examination, see Division 3.

(4) The order may be made:

(a) on the court's own initiative or on application by or on behalf of a party to the proceeding; and

(b) at any time during the proceeding; and

(c) for the evidence recording hearing to be held at any time during the proceeding (including after the trial in the proceeding has begun).

(5) To avoid doubt, evidence in chief may also include a recording of an earlier interview (see section 15YM).

Adjourning proceedings to enable recording

(6) 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 in accordance with this section if:

(a) the court is not equipped with the necessary facilities; or

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

15YDC Arrangements for persons at the hearing

(1) The vulnerable person must not be able to see the defendant during the evidence recording hearing.

(2) However, the defendant must be able to:

(a) if the vulnerable person gives evidence from another room - by closed-circuit television, see and hear the vulnerable person giving evidence; or

(b) if the vulnerable person and the defendant are in the same room - hear the vulnerable person giving evidence.

(3) If there is a jury in the proceeding, the evidence recording hearing must be held in the jury's absence.

(4) Otherwise, the court may determine who is to be present at the evidence recording hearing.

15YDD Evidence must be recorded

(1) A recording must be made of the evidence given by the vulnerable person at the evidence recording hearing.

(1A) The recording must be a video recording unless the court is satisfied that extraordinary circumstances require the use of audio recording only.

(2) The recording of the evidence must:

(a) be played at the hearing of the proceeding; and

(b) be admitted in evidence as the vulnerable person's evidence at the hearing as if the vulnerable person gave the evidence at the hearing in person.

(3) Subsection (2) has effect subject to section 15YDE (admissibility of evidence).

15YDE Admissibility of evidence

The court may refuse to admit the whole or part of the contents of the recording.

15YDF Access to recordings and transcripts

Defendants' access to recordings

(1) Neither a defendant in the proceeding nor the defendant's legal representative is entitled to be given a video or audio recording (the original recording ) made in an evidence recording hearing, or a copy of the original recording.

(2) However, they must be given reasonable access to the original recording in order to view or listen to it.

Note: This may require access on more than one occasion.

(3) Neither the defendant nor the defendant's legal representative may:

(a) make a recording (or other copy) of the original recording; or

(b) do anything (whether directly or indirectly) that would damage or alter the original recording.

Transcripts

(4) The court must give each party to the proceeding and the jury (if any) access to, or a copy of, a transcript of the original recording.

(5) To avoid doubt, subsections (1), (2) and (4) do not apply in relation to any part of a recording the court has refused to admit (see section 15YDE (admissibility of evidence)).

Offence

(6) A person commits an offence if:

(a) the person:

(i) makes a recording (or other copy) of the original recording, or a part of the original recording; or

(ii) does anything (whether directly or indirectly) to damage or alter the original recording, or a part of the original recording; or

(iii) possesses or supplies the original recording, or a part of the original recording; or

(iv) possesses or supplies a copy of the original recording, or a part of the original recording; and

(b) the person does so without lawful authority or excuse.

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

(7) The fault element for paragraph (6)(a) is intention.

15YDG Vulnerable person need not give further evidence unless court orders

(1) If evidence given by the vulnerable person in an evidence recording hearing is admitted in the proceeding, the vulnerable person need not give any further evidence in the proceeding unless the court orders that this is necessary:

(a) to clarify the vulnerable person's evidence given in the evidence recording hearing; or

(b) to give proper consideration of information or material that has become available since the evidence recording hearing; or

(c) in the interests of justice.

Note: This subsection covers further evidence that could otherwise be given on examination in chief, on cross-examination or on re-examination.

(2) If the court makes an order under subsection (1), the court must:

(a) order that the evidence is to be given in an evidence recording hearing; and

(b) ensure that the vulnerable person is questioned in the hearing only about the matters specified in the order.

(3) An order under subsection (1) may be made on the court's own initiative or on application by or on behalf of a party to the proceeding, including the vulnerable person.

15YDH Division applies despite other rules of evidence

This Division has effect despite the Evidence Act 1995, any other law and any other rules of evidence or procedure.