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

Overview of Bill

The objects of this Bill are as follows:

(a) to amend the Criminal Procedure Act 1986 to make further provision with
respect to the giving of evidence in criminal proceedings by certain vulnerable
persons (namely, children and intellectually impaired persons) in the form of
recordings of previous representations and by closed-circuit television in court
proceedings,

(b) to consequentially repeal the Evidence (Children) Act 1997,

(c) to make other miscellaneous amendments of a minor, consequential or savings
or transitional nature.

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 a day or days to be
appointed by proclamation.

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

Clause 4 is a formal provision that gives effect to the amendments to the Acts set out
in Schedule 2.

Clause 5 repeals the Evidence (Children) Act 1997.

Clause 6 repeals the Evidence (Children) Regulation 2004.

Clause 7 provides for the repeal of the proposed Act after all the amendments made
by the proposed Act have commenced. Once the amendments have commenced the
proposed Act will be spent and section 30 of the Interpretation Act 1987 provides
that the repeal of an amending Act does not affect the amendments made by that Act.

Schedule 1 Amendment of Criminal Procedure Act
1986
Amendments relating to evidence given by vulnerable persons
Schedule 1 [13] inserts a new Part 6 (proposed sections 306M–306ZP) into Chapter
6 of the Criminal Procedure Act 1986 dealing with the giving of evidence in certain
proceedings by ‘vulnerable persons’ (defined as children and intellectually impaired
persons). For the purposes of the proposed Part, a person is defined to be
intellectually impaired if the person has:

(a) an appreciably below average general intellectual function, or

(b) a cognitive impairment (including dementia or autism) arising from, or as a
result of, an acquired brain injury, neurological disorder or a developmental
disorder, or

(c) any other intellectual disability.

The proposed Part substantially re-enacts, with some minor modifications, the
provisions of the Evidence (Children) Act 1997 (which is repealed by clause 5) so as
to:

(a) enable electronically recorded interviews made by investigating officials with
a witness who is a vulnerable person to be admitted into evidence as part or all
of such a person’s evidence in chief in any criminal proceedings, and

(b) confer an entitlement on vulnerable persons to give evidence in criminal and
certain other proceedings by means of closed-circuit television facilities or
other similar technology, rather than by attending the proceedings to give oral
evidence.

In relation to intellectually impaired persons, the proposed Part will only apply to
evidence given by such persons in the manner provided by the Part if the court is
satisfied that the facts of the case may be better ascertained if the person’s evidence
is given in such a manner.

The minor modifications contained in the proposed Part include the following:

(a) Section 7 of the Evidence (Children) Act 1997, which has not been
commenced because of operational difficulties, requires an investigating
official who questions a child in connection with the investigation of the
commission or possible commission of an offence by the child or any other
person to ensure that any representation made by the child in the course of the
interview, and that the investigating official considers may be adduced as
evidence in a court, is recorded. The equivalent section proposed to be inserted
into the Criminal Procedure Act 1986 provides that the regulations may
require an investigating official to record interviews with vulnerable persons
(see proposed section 306Q).

(b) At present, section 11 of the Evidence (Children) Act 1997 provides that a
child is entitled to give evidence in chief of a previous representation in the
form of a recording made by an investigating official of an interview in the
course of which the previous representation was made. In particular, section
11 (1A) of that Act currently provides that a child who is 16 years of age or
more but less than 18 years of age at the time evidence is given is only entitled
to give evidence in the form of a recording of a previous representation made
by the child when the child was less than 16 years of age. The equivalent
section proposed to be inserted into the Criminal Procedure Act 1986
provides, instead, that such evidence may be admitted no matter what age the
person is at the time evidence is given (see proposed section 306U).

(c) Section 12 of the Evidence (Children) Act 1997 currently provides that the
hearsay rule and the opinion rule do not prevent the admission or use of a
recording of a child’s previous representation. However, if the child is not the
accused person in the proceeding, the recording is to be admissible only if it is
proved that the accused person and his or her lawyer (if any) were given a
reasonable opportunity (in accordance with regulations that set out certain
notice requirements) to listen to, and in the case of a video recording, view the
recording. The equivalent section proposed to be inserted into the Criminal
Procedure Act 1986 further provides that if the notice requirements under the
regulations have not been complied with, the recording may still be admitted
if the court is satisfied that the parties consent and the accused person and his
or her lawyer have been given a reasonable opportunity (otherwise than in
accordance with the regulations) to listen to or view the recording (see
proposed section 306V).

(d) Section 21 of the Evidence (Children) Act 1997 currently provides that
closed-circuit television facilities and other similar technology used for giving
the evidence of a child are not to be used for the giving of identification
evidence. The equivalent section proposed to be inserted into the Criminal
Procedure Act 1986 further provides that identification evidence may still be
given by means of closed-circuit television facilities or any other similar
technology that relates to evidence that is not a fact in issue (see proposed
section 306ZE).

Other amendments
Section 91 of the Criminal Procedure Act 1986 provides that a person who made a
written statement tendered as evidence in committal proceedings may be directed by
a Magistrate to attend at the proceedings. Schedule 1 [2] provides that a direction
may not be given under section 91 so as to require the attendance of the complainant
in certain sexual offence proceedings if the complainant is intellectually impaired.

Schedule 1 [1] and [3]–[12] amend various sections of the Criminal Procedure Act
1986 as a consequence of the repeal of the Evidence (Children) Act 1997 and the
amendments made by Schedule 1 [13].

Schedule 1 [14] enables savings and transitional regulations to be made as a
consequence of the proposed Act.

Schedule 1 [15] inserts savings and transitional provisions as a consequence of the
enactment of the proposed Act.

Schedule 2 Consequential amendment of other Acts
Schedule 2 amends the Children (Criminal Proceedings) Act 1987, the Crimes Act
1900 and the Evidence (Audio and Audio Visual Links) Act 1998 as a consequence of
the repeal of the Evidence (Children) Act 1997 and the amendments made by
Schedule 1 [13].

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.

 

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