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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Criminal Procedure Amendment
(Evidence) Bill 2005
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Criminal Procedure Act 1986 No 209 2
4 Amendment of Criminal Procedure Regulation 2000 2
Schedule 1 Amendment of Criminal Procedure Act 1986 3
Schedule 2 Amendment of Criminal Procedure Regulation 2000 8
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, , 2005
New South Wales
Criminal Procedure Amendment
(Evidence) Bill 2005
Act No , 2005
An Act to amend the Criminal Procedure Act 1986 with respect to evidence in
criminal trials, including retrials of sexual assault 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 (Evidence) Bill 2005
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Criminal Procedure Amendment (Evidence) Act 2005.
2 Commencement
This Act commences on the date of assent.
3 Amendment of Criminal Procedure Act 1986 No 209
The Criminal Procedure Act 1986 is amended as set out in Schedule 1.
4 Amendment of Criminal Procedure Regulation 2000
The Criminal Procedure Regulation 2000 is amended as set out in
Schedule 2.
Page 2
Criminal Procedure Amendment (Evidence) Bill 2005
Amendment of Criminal Procedure Act 1986 Schedule 1
Schedule 1 Amendment of Criminal Procedure Act
1986
(Section 3)
[1] Chapter 6, Part 5, Division 3
Insert after Division 2 of Part 5 of Chapter 6:
Division 3 Special provisions relating to retrials of
sexual offence proceedings
306A Definitions
In this Division:
accused person, in relation to any proceedings, means the person
who stands, or any of the persons who stand, charged in those
proceedings with a sexual offence.
complainant, in relation to any proceedings, means the person, or
any of the persons, against whom a sexual offence with which the
accused person stands charged in those proceedings is alleged to
have been committed, and includes:
(a) in relation to an offence under section 91D, 91E or 91F of
the Crimes Act 1900, the person under the age of 18 years
who is alleged to have participated in an act of child
prostitution, and
(b) in relation to an offence under section 91G of the Crimes
Act 1900, the person under the age of 18 years who is
alleged to have been used for pornographic purposes.
original evidence of the complainant has the meaning given by
section 306B.
sexual offence means:
(a) a prescribed sexual offence, or
(b) an offence against section 73, 78A, 78B, 80D, 91A, 91B,
91D, 91E, 91F or 91G of the Crimes Act 1900, or
(c) an offence that, at the time it was committed, was a sexual
offence under this section, or
(d) an offence that includes the commission of, or an intention
to commit, an offence referred to in paragraph (a), (b) or
(c), or
(e) an offence of attempting, or of conspiracy or incitement, to
commit an offence referred to in paragraph (a), (b), (c) or
(d).
Page 3
Criminal Procedure Amendment (Evidence) Bill 2005
Schedule 1 Amendment of Criminal Procedure Act 1986
306B Admission of evidence of complainant in new trial proceedings
(1) If a person is convicted of a sexual offence and, on an appeal
against the conviction, a new trial is ordered, the prosecutor may
tender as evidence in the new trial proceedings a record of the
original evidence of the complainant.
(2) For the purposes of this Division, the original evidence of the
complainant means all evidence given by the complainant in the
proceedings from which the conviction arose (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) The court hearing the new trial proceedings does not have any
discretion to decline to admit a record of the original evidence of
the complainant if it is admissible under this Division.
(6) However, the court may give directions requiring a record of the
original evidence of the complainant 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.
Page 4
Criminal Procedure Amendment (Evidence) Bill 2005
Amendment of Criminal Procedure Act 1986 Schedule 1
(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 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 ordered
before the commencement of this Division, including new trial
proceedings that have been commenced or partly heard.
306C Complainant not compellable to give further evidence
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 any further evidence in
the proceedings (despite anything to the contrary in this Act or
the Evidence Act 1995), including for the purpose of any
examination in chief, cross-examination or re-examination by or
at the request of the accused person or his or her counsel.
306D 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.
Page 5
Criminal Procedure Amendment (Evidence) Bill 2005
Schedule 1 Amendment of Criminal Procedure Act 1986
(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. This
applies despite section 306C.
306E Form in which record of original evidence of complainant is to be
tendered
(1) A record of the original evidence of the complainant tendered by
the prosecutor under this Division must be the best available
record, or be comprised of the best available records, of the
original evidence of the complainant, and the record or records
concerned must be properly authenticated.
(2) For the purposes of this section, the best available record of the
evidence, or any part of the evidence, given by a complainant is:
(a) an audio visual recording of the evidence, or
(b) if an audio visual recording of the evidence is not
available, an audio recording of the evidence, or
(c) if neither an audio visual recording nor an audio recording
of the evidence is available, a transcript of the evidence.
(3) If the whole or part of the evidence given by the complainant in
the original proceedings was given in the form of a recording
made by an investigating official, as provided for by the Evidence
(Children) Act 1997, the best available record of that evidence is
the recording viewed or heard by the court in those original
proceedings.
(4) A record of any evidence given by a complainant is properly
authenticated for the purposes of this section if:
(a) the record has been authenticated by the court before
which the evidence concerned was given or by the registrar
or other proper officer of that court in accordance with any
directions of the court, or
(b) the record has been authenticated by the person or body
responsible for producing the record, or
(c) the record has been authenticated in any other manner
prescribed by the regulations.
Page 6
Criminal Procedure Amendment (Evidence) Bill 2005
Amendment of Criminal Procedure Act 1986 Schedule 1
306F Access to audio visual or audio recording
(1) If a record of the original evidence of the complainant tendered
or proposed to be tendered by the prosecutor under this Division
is an audio visual recording or audio recording, the accused
person, and his or her counsel (if any), are not entitled to be given
possession of the record or a copy of it (despite anything to the
contrary in this Act or the Evidence Act 1995).
(2) However, the accused person and his or her counsel (if any) are
to be given reasonable access to the recording to enable them to
listen to it and, if the record is an audio visual recording, view it.
(3) This may require access to be given on more than one occasion.
(4) The regulations may make provision for the procedures to be
followed in connection with the giving of access under this
section, and may provide for the giving of access to other persons
assisting the accused person or his or her counsel.
306G Exhibits may also be tendered
(1) If a record of the original evidence of a complainant is tendered
by the prosecutor under this Division, any exhibits tendered in the
original proceedings on the basis of the original evidence of the
complainant and admitted in the original proceedings are also
admissible in the new trial proceedings as 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.
(2) This section does not prevent any other exhibits tendered in the
original proceedings from being tendered and admitted in the
new trial proceedings in accordance with the usual rules and
practice of the court hearing the new trial proceedings.
[2] Schedule 2 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Criminal Procedure Amendment (Evidence) Act 2005
Page 7
Criminal Procedure Amendment (Evidence) Bill 2005
Schedule 2 Amendment of Criminal Procedure Regulation 2000
Schedule 2 Amendment of Criminal Procedure
Regulation 2000
(Section 4)
Clauses 14A and 14B
Insert after clause 14:
14A New trials of sexual assault proceedings--notice of intention to
tender record of original evidence of complainant
A notice given by the prosecutor to the accused person under
section 306B (3) (a) of the Act must:
(a) specify whether the record or records to be tendered by the
prosecutor in the new trial proceedings are an audio visual
recording, an audio recording or a transcript of the
evidence given by the complainant in the original
proceedings, and
(b) if a record to be tendered is an audio visual recording or
audio recording, contain information to the effect that the
accused person and his or her counsel are entitled to listen
to or view the recording at a place nominated by the
prosecutor and set out the name of the person responsible
for arranging access to the recording.
14B Procedure for obtaining access to record of original evidence of
complainant
(1) This clause sets out the procedure for obtaining access to listen to
or view an audio visual recording or audio recording of the
original evidence of the complainant for the purposes of section
306F of the Act.
(2) On receipt of a notice under section 306B (3) (a) of the Act
specifying the prosecutor's intention to tender in proceedings an
audio visual recording or audio recording of the original evidence
of the complainant, the accused person, or his or her counsel, may
give the responsible person a notice in writing that he or she
requires access to the recording.
(3) A responsible person who receives a notice that complies with
this clause must give the accused person and his or her counsel (if
any) access to listen to or view the recording as soon as
practicable after the day on which the responsible person receives
the notice.
Page 8
Criminal Procedure Amendment (Evidence) Bill 2005
Amendment of Criminal Procedure Regulation 2000 Schedule 2
(4) The responsible person may give any person accompanying the
accused person, or his or her counsel, who has been engaged to
assist the accused person's case access to listen to or view the
recording.
(5) In this clause:
responsible person means the person nominated by the
prosecutor in the notice under section 306B (3) (a) of the Act as
the person responsible for arranging access to the recording (as
referred to in clause 14A (b)).
Page 9
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