Criminal Procedure Amendment
(Sexual Offence Evidence) Bill 2004

Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The common law generally requires a witness to be physically present in the
courtroom, and in the presence of the accused, when giving evidence in relation
to an offence.

The object of this Bill is to amend the Criminal Procedure Act 1986 to make
specific provision, similar to that available to children under Part 4 of the
Evidence (Children) Act 1997, for alternate arrangements for the giving of
evidence by closed-circuit television and use of screens and other means to be
available to complainants giving evidence in sexual offence proceedings.

The Bill gives effect to Recommendation 10 of NSW Law Reform Commission
in its report entitled Questioning of complainants by unrepresented accused in
sexual offence trials (Report 101) that such alternate arrangements be available
to complainants, whether or not the accused is represented.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on the date of
assent to the Act.

Clause 3 is a formal provision that gives effect to the amendment to the
Criminal Procedure Act 1986 set out in Schedule 1.

Clause 4 is a formal provision that gives effect to the amendment to the
Evidence (Children) Act 1997 set out in Schedule 2.

Schedule 1 Amendment of Criminal Procedure Act
1986
Schedule 1 inserts a new section 294B into Part 5 (Evidence in sexual offence
proceedings) of Chapter 6 of the Criminal Procedure Act 1986 to give effect to
the object of the Bill.

The proposed section creates a presumption that a complainant who gives
evidence in proceedings for a sexual offence (as defined in the proposed section)
is entitled to give evidence from a place outside the courtroom by means of
closed-circuit television facilities or other technology that enables
communication between that place and the courtroom or, if such technology is
unavailable, by other alternative arrangements such as use of screens and seating
arrangements to restrict contact (including visual contact) between the
complainant and the accused and any other person or persons who might, for
example, intimidate the complainant in giving his or her evidence. It also creates
a presumption that a complainant is entitled to have a person chosen by the
complainant present near the complainant while he or she is giving evidence for
the purpose of providing emotional support to the complainant. A complainant
may choose not to give evidence in these ways and a court may, on its own
initiative or on application, order that closed-circuit television facilities or other
technology not be used. The court’s discretion to make such an order is limited
to cases where it is satisfied that there are special reasons, in the interests of
justice, why such arrangements should not be used. This limitation is similar to
the limitation imposed by section 93 of the Criminal Procedure Act 1986 on the
ability of a Magistrate to direct a victim of an offence involving violence to give
oral evidence in committal proceedings.

In any proceedings in which evidence is given by means of closed-circuit
television facilities or other technology or by use of such alternative
arrangements, the judge must inform the jury that it is standard procedure for
complainants’ evidence in such cases to be given by those means or use of those
arrangements and warn the jury not to draw any inference adverse to the accused
or give the evidence any greater or lesser weight because of the evidence being
given in that way.

The proposed section will extend to evidence given in proceedings instituted
before the commencement of the section, including a new trial that was ordered
to take place before that commencement and proceedings that have been partly
heard.

Part 4 of the Evidence (Children) Act 1997 will continue to apply to evidence of
any children who are currently entitled under that Part to give evidence by way
of closed-circuit television or similar arrangements or by use of alternative
arrangements such as screens.

Schedule 2 Consequential amendment of Evidence
(Children) Act 1997
Schedule 2 makes an amendment to section 18 (Children have a right to give
evidence by closed-circuit television) of the Evidence (Children) Act 1997 that
is consequential on proposed section 294B (6) to be inserted in the Criminal
Procedure Act 1986 by Schedule 1.

The amendment to section 18 ensures that the limitation of a court’s discretion
to make an order preventing use of closed-circuit television facilities or similar
technology by a child in giving evidence is consistent with the limitation under
proposed section 294B (6) of the discretion to make similar orders in cases
where it is satisfied that there are special reasons, in the interests of justice, why
such arrangements should not be used.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

---

[Index] [Search] [Download] [Bill] [Help]