New South Wales Consolidated Acts

CRIMINAL PROCEDURE ACT 1986 - SECT 306I

306I Admission of evidence of complainant or special witness in new trial proceedings

(1) If the trial of an accused person is discontinued following the jury being discharged because the jurors could not reach a verdict, or discontinued for any other reason, and, as a result, a new trial is listed, the prosecutor may tender as evidence in the new trial proceedings a record of the original evidence of the complainant or a special witness.

(2) For the purposes of this Division, the
"original evidence" of the complainant or a special witness means all evidence given by the complainant or special witness in the discontinued trial (referred to in this Division as the
"original proceedings" ), including the evidence given by the complainant or special witness on examination in chief in the original proceedings and any further evidence given on cross-examination or re-examination in those proceedings.

(3) Despite anything to the contrary in the Evidence Act 1995 , or any other Act or law, a record of the original evidence of the complainant or a special witness is admissible in the new trial proceedings if--

(a) the prosecutor gives written notice to the accused person, in accordance with the regulations, of the prosecutor's intention to tender the record under this section, and

(b) the prosecutor gives written notice to the court of the prosecutor's intention to tender the record under this section, and

(c) the notices referred to in paragraphs (a) and (b) are given no less than 21 days before the court commences hearing the new trial proceedings or within such other period as the court may allow.

(4) The hearsay rule (within the meaning of the Evidence Act 1995 ) does not prevent the admission of a record of the original evidence of the complainant or a special witness under this Division or the use of that record to prove the existence of a fact that the complainant or special witness intended to assert by a representation made in the original evidence.

(5) Despite subsection (3), the court hearing the new trial proceedings may decline to admit a record of the original evidence of the complainant or a special witness if, in the court's opinion, the accused would be unfairly disadvantaged by the admission of the record, having regard to the following--

(a) the completeness of the original evidence, including whether the complainant or special witness has been cross-examined on the evidence,

(b) the effect of editing any inadmissible evidence from the original evidence,

(c) the availability or willingness of the complainant or special witness to attend to give further evidence and to clarify any matters relating to the original evidence,

(d) the interests of justice,

(e) any other matter the court thinks relevant.

(6) If the court allows a record of the original evidence of the complainant or a special witness to be admitted, the court may give directions requiring the record to be altered or edited for the purpose of removing any statements that would not be admissible if the original evidence of the complainant or special witness had been given orally before the court hearing the new trial proceedings in accordance with the usual rules and practice of the court.

(7) In addition, a record of the original evidence of the complainant or a special witness may be altered or edited in accordance with an agreement between the prosecutor and the accused person or his or her counsel (if any).

(8) This Division applies in respect of proceedings for a new trial in which a person stands charged with a prescribed sexual offence whether or not the person stands charged with that offence alone or together with any other offence (as an additional or alternative count) and whether or not the person is liable, on the charge, to be found guilty of any other offence.

(9) This Division extends to proceedings for a new trial listed before the commencement of this Division, including new trial proceedings that have been commenced or partly heard.