New South Wales Consolidated Acts

CRIMINAL PROCEDURE ACT 1986 - SECT 279

279 Compellability of family members to give evidence in certain proceedings

(1) In this section--

(a) a reference to a member of the accused person's family means the spouse or de facto partner of the accused person or a parent (within the meaning of the Evidence Act 1995 ) or child (within the meaning of that Act) of the accused person, and

Note--: "De facto partner" is defined in section 21C of the Interpretation Act 1987 .

(b) a reference to a domestic violence offence is a reference to a domestic violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007 , and

(c) a reference to a domestic violence offence committed on a member of an accused person's family includes a reference to an offence of contravening a prohibition or restriction specified in an apprehended violence order that was made against the accused person and in respect of which a member of the accused person's family was the protected person, and

(d) a reference to a child assault offence is a reference to--

(i) a prescribed sexual offence committed on a child under the age of 18 years, or

(ii) an offence under, or mentioned in, section 24, 27, 28, 29, 30, 33, 33A, 35, 39, 41, 42, 43, 44, 46, 47, 48, 49, 58, 59 or 61 of the Crimes Act 1900 committed on a child under the age of 18 years, or

(iii) an offence that, at the time it was committed, was a child assault offence for the purposes of this section or section 407AA of the Crimes Act 1900 , or

(iv) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in subparagraph (i), (ii) or (iii), and

(e) a reference to a child assault offence committed on a child includes a reference to an offence of contravening a prohibition or restriction specified in an apprehended violence order that was made against the accused person and in respect of which that child was the protected person.

(2) A member of an accused person's family in proceedings in any court--

(a) for a domestic violence offence (other than an offence arising from a negligent act or omission) committed on a member of the accused person's family, or

(b) for a child assault offence (other than an offence arising from a negligent act or omission) committed on--

(i) a child living in the household of the accused person, or

(ii) a child who, although not living in the household of the accused person, is a child (within the meaning of the Evidence Act 1995 ) of the accused person,

is compellable to give evidence in the proceedings, either for the prosecution or for the defence, without the consent of the accused person.

(2A) This section does not make a member of an accused person's family (other than the accused person's spouse) compellable to give evidence in proceedings for a domestic violence offence committed on a member of the accused person's family if the accused person is under the age of 18 years.

(3) A member of an accused person's family is not compellable to give evidence for the prosecution as referred to in subsection (2) if the family member has applied to, and been excused by, the court.

(4) A court may excuse a member of an accused person's family from giving evidence for the prosecution as referred to in subsection (2) if satisfied--

(a) that the application to be excused is made by that family member freely and independently of threat or any other improper influence by any person, and

(b) that it is relatively unimportant to the case to establish the facts in relation to which it appears that the family member is to be asked to give evidence, or there is other evidence available to establish those facts, and

(c) that the offence with which the accused person is charged is of a minor nature.

(5) When excusing a member of an accused person's family from giving evidence under subsection (4), the court--

(a) must state the reasons for doing so, and

(b) must cause those reasons to be recorded in writing in a form prescribed by the regulations.

(6) An application under this section by a member of an accused person's family to be excused from giving evidence is to be made and determined in the absence of the jury (if any) and the accused person, but in the presence of the accused person's Australian legal practitioner.

(7) A court may conduct the hearing of an application under this section in any manner it thinks fit, and is not bound to observe rules of law governing the admission of evidence but may obtain information on any matter in any manner it thinks fit.

(8) The fact that a member of an accused person's family in proceedings for an offence has applied to be excused, or has been excused, from giving evidence in the proceedings is not to be made the subject of any comment by the court or by any party in the proceedings.