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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Criminal Procedure Amendment
(Sexual and Other Offences) Bill 2006
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Acts 2
4 Repeal of Act 2
Schedule 1 Amendment of Criminal Procedure Act 1986 3
Schedule 2 Amendment of Crimes Act 1900 11
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2006
New South Wales
Criminal Procedure Amendment
(Sexual and Other Offences) Bill 2006
Act No , 2006
An Act to amend the Criminal Procedure Act 1986 to make further provision with
respect to proceedings for sexual and other offences and the protection of certain
persons in such proceedings; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Criminal Procedure Amendment (Sexual and Other Offences) Bill 2006
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Criminal Procedure Amendment (Sexual and Other
Offences) Act 2006.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Acts
The Acts specified in Schedules 1 and 2 are amended as set out in those
Schedules.
4 Repeal of Act
(1) This Act is repealed on the day following the day on which all of the
provisions of this Act have commenced.
(2) The repeal of this Act does not, because of the operation of section 30
of the Interpretation Act 1987, affect any amendment made by this Act.
Page 2
Criminal Procedure Amendment (Sexual and Other Offences) Bill 2006
Amendment of Criminal Procedure Act 1986 Schedule 1
Schedule 1 Amendment of Criminal Procedure Act
1986
(Section 3)
[1] Section 91 Witness may be directed to attend
Omit section 91 (4). Insert instead:
(4) The written statement may be admissible in evidence in the
proceedings after the direction is given if:
(a) the accused person and the prosecutor consent to the
statement being admitted, or
(b) the Magistrate is satisfied that there are substantial reasons
why, in the interests of justice, the statement should be
admitted.
[2] Section 91 (6)
Omit "subsection (3)". Insert instead "subsections (3) and (4)".
[3] Section 93 Victim witnesses generally not to be directed to attend
Omit section 93 (1). Insert instead:
(1) Despite section 91 (other than subsection (8) of that section), in
any committal proceedings in which the accused person is
charged with an offence involving violence, the Magistrate may
not, under that section, direct the attendance of an alleged victim
of the offence who made a written statement (even if the parties
to the proceedings consent to the attendance) unless the
Magistrate is satisfied that there are special reasons why the
alleged victim should, in the interests of justice, attend to give
oral evidence.
[4] Section 275B
Insert after section 275A:
275B Witness with communication difficulty entitled to assistance from
person or communication aid
(1) In any criminal proceedings, a witness who has difficulty
communicating is entitled to use a person or persons who may
assist the witness with giving evidence, but only if the witness
ordinarily receives assistance to communicate from such a person
or persons on a daily basis.
Page 3
Criminal Procedure Amendment (Sexual and Other Offences) Bill 2006
Schedule 1 Amendment of Criminal Procedure Act 1986
(2) In any criminal proceedings, a witness who has difficulty
communicating is entitled to use a communication aid to assist
the witness with giving evidence, but only if the witness
ordinarily uses such an aid to assist him or her to communicate
on a daily basis.
(3) To the extent that the court considers it reasonable to do so, the
court must make whatever direction is appropriate to give effect
to a witness' right to use a person or persons, or to use a
communication aid, under this section when the witness is giving
evidence.
(4) The provisions of the Evidence Act 1995 apply to and in respect
of a person who gives a witness assistance under this section in
the same way as they apply to and in respect of an interpreter
under that Act.
(5) In this section:
communication aid includes any thing, whether electronic or
otherwise, that can be used to assist in communication.
[5] Section 292 Publication of evidence may be forbidden in certain cases
Insert after section 292 (4):
(5) A reference in subsection (1) or (2) to publication of evidence or
any report or account of that evidence includes a reference to:
(a) the broadcast of evidence or any report or account of that
evidence by radio or television, or
(b) the dissemination of evidence or any report or account of
that evidence by any other electronic means such as the
internet.
(6) An order under this section must not be made unless the court
concerned:
(a) has sought and considered any views of the complainant,
and
(b) is satisfied that the publication is not in the public interest.
(7) In making an order under this section, the court may specify that
the order continues to have effect after the relevant proceedings
have been finally disposed of. However, the court may, on
application by any person, vary or revoke the order at any time.
Page 4
Criminal Procedure Amendment (Sexual and Other Offences) Bill 2006
Amendment of Criminal Procedure Act 1986 Schedule 1
[6] Section 294 Warning to be given by Judge in relation to lack of complaint
in certain sexual offence proceedings
Insert at the end of section 294 (2) (b):
, and
(c) must not warn the jury that delay in complaining is
relevant to the victim's credibility unless there is sufficient
evidence to justify such a warning.
[7] Section 294 (3)(5)
Insert after section 294 (2):
(3) However, if:
(a) the delay in making a complaint by the person on whom
the offence is alleged to have been committed is
significant, and
(b) the Judge is satisfied that the person on trial for the offence
has suffered a significant forensic disadvantage caused by
that delay, and
the Judge may inform the jury (but only if a party to the
proceedings so requests) of the nature of the disadvantage and of
the need for caution in determining whether to accept, or give any
weight to, the evidence or question referred to in subsection (1).
(4) For the purposes of subsection (3) (b), the factors that may be
regarded as establishing a significant forensic disadvantage
include, but are not limited to, the following:
(a) the fact that any potential witnesses have died or are not
able to be located,
(b) the fact that any potential evidence has been lost or is
otherwise unavailable.
(5) The mere passage of time is not in itself to be regarded as
establishing a significant forensic disadvantage.
[8] Section 294AA
Insert after section 294:
294AA Warning to be given by Judge in relation to complainants'
evidence
(1) A judge in any proceedings to which this Division applies must
not warn a jury, or make any suggestion to a jury, that
complainants as a class are unreliable witnesses.
Page 5
Criminal Procedure Amendment (Sexual and Other Offences) Bill 2006
Schedule 1 Amendment of Criminal Procedure Act 1986
(2) Without limiting subsection (1), that subsection prohibits a
warning to a jury of the danger of convicting on the
uncorroborated evidence of any complainant.
(3) Sections 164 and 165 of the Evidence Act 1995 are subject to this
section.
[9] Section 294A Arrangements for complainant in prescribed sexual
offence proceedings giving evidence when accused person is
unrepresented
Insert after section 294A (8):
(9) Any thing done or omitted to be done by a person who:
(a) is appointed under this section, and
(b) is an Australian lawyer,
when acting in the course of the appointment or otherwise in
accordance with this section does not, if the thing was done or
omitted to be done in good faith, subject the person personally to
any action, liability, claim or demand.
[10] Chapter 6, Part 5, Division 4
Insert after Division 3:
Division 4 Special provisions relating to subsequent
trials of sexual offence proceedings
Note. Division 3 of this Part applies in relation to a retrial of proceedings that follows an
appeal against a conviction for a prescribed sexual offence. This Division, on the other
hand, applies when a trial for a prescribed sexual offence has been discontinued and
a new trial is listed.
306H Definitions
In this Division:
accused person has the same meaning as in section 306A.
complainant has the same meaning as in section 306A.
original evidence of the complainant has the meaning given by
section 306I.
306I Admission of evidence of complainant 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.
Page 6
Criminal Procedure Amendment (Sexual and Other Offences) Bill 2006
Amendment of Criminal Procedure Act 1986 Schedule 1
(2) For the purposes of this Division, the original evidence of the
complainant means all evidence given by the complainant in the
discontinued trial (referred to in this Division as the original
proceedings), including the evidence given by the complainant
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 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 under this Division or the use of that
record to prove the existence of a fact that the complainant
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 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 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 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.
Page 7
Criminal Procedure Amendment (Sexual and Other Offences) Bill 2006
Schedule 1 Amendment of Criminal Procedure Act 1986
(6) If the court allows a record of the original evidence of the
complainant 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 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
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.
306J Whether complainant compellable to give further evidence
(1) If a record of the original evidence of the complainant (or any part
of the record) is admitted in proceedings under this Division, the
complainant is not compellable to give further evidence in the
proceedings unless the court is satisfied that it is necessary for the
complainant to give further evidence:
(a) to clarify any matters relating to the original evidence of
the complainant, or
(b) to canvas information or material that has become
available since the original proceedings, or
(c) in the interests of justice.
(2) Subsection (1) applies despite anything to the contrary in this Act
or the Evidence Act 1995.
(3) The court is to ensure that the complainant is questioned by any
party to the proceedings only in relation to matters that are
relevant to the matters mentioned in subsection (1).
(4) Subject to subsection (3), if a complainant gives any further oral
evidence under this section, the complainant is compellable (for
the prosecution or the accused person) to give evidence.
Page 8
Criminal Procedure Amendment (Sexual and Other Offences) Bill 2006
Amendment of Criminal Procedure Act 1986 Schedule 1
306K Complainant may elect to give further evidence
(1) If a record of the original evidence of the complainant (or any part
of the record) is admitted in proceedings under this Division, the
complainant may, with leave of the court hearing the
proceedings, and only if the complainant so chooses, give further
oral evidence in the proceedings.
(2) The court is to give leave to the complainant to give such further
evidence in the proceedings only if the court is satisfied, on
application by one of the parties to the proceedings, that it is
necessary for the complainant to give further oral evidence:
(a) to clarify any matters relating to the original evidence of
the complainant, or
(b) to canvas information or material that has become
available since the original proceedings, or
(c) in the interests of justice.
(3) The court is to ensure that the complainant is questioned by any
party to the proceedings only in relation to matters that are
relevant to the reasons for the grant of leave by the court.
(4) Subject to subsection (3), if a complainant gives any further oral
evidence under this section, the complainant is compellable (for
the prosecution or the accused person) to give evidence.
306L Application of provisions dealing with form of record of original
evidence, access to recordings and exhibits
Sections 306E306G (including any regulations made for the
purposes of those sections) apply for the purposes of this
Division with such modifications as are necessary.
[11] Schedule 2 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Criminal Procedure Amendment (Sexual and Other Offences)
Act 2006, to the extent that it amends this Act
Page 9
Criminal Procedure Amendment (Sexual and Other Offences) Bill 2006
Schedule 1 Amendment of Criminal Procedure Act 1986
[12] Schedule 2, Part 12
Insert after Part 11:
Part 12 Provisions consequent on enactment of
Criminal Procedure Amendment (Sexual
and Other Offences) Act 2006
51 Amendments
(1) The amendments made by the Criminal Procedure Amendment
(Sexual and Other Offences) Act 2006 do not extend to any
proceedings commenced before the commencement of the
amendments and any such proceedings may continue as if that
Act had not been enacted.
(2) This clause does not apply to the amendments inserted by
Schedule 1 [10] to the Criminal Procedure Amendment (Sexual
and Other Offences) Act 2006.
Page 10
Criminal Procedure Amendment (Sexual and Other Offences) Bill 2006
Amendment of Crimes Act 1900 Schedule 2
Schedule 2 Amendment of Crimes Act 1900
(Section 3)
Section 578A Prohibition of publication identifying victims of certain
sexual offences
Omit the definition of publish in section 578A (1). Insert instead:
publish includes:
(a) broadcast by radio or television, or
(b) disseminate by any other electronic means such as the
internet.
Page 11
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