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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 Offence Evidence) Bill 2004
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Criminal Procedure Act 1986 No 209 2
4 Amendment of Evidence (Children) Act 1997 No 143 2
Schedule 1 Amendment of Criminal Procedure
Act 1986 3
Schedule 2 Consequential amendment of Evidence (Children) Act 1997 6
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, , 2004
New South Wales
Criminal Procedure Amendment
(Sexual Offence Evidence) Bill 2004
Act No , 2004
An Act to amend the Criminal Procedure Act 1986 to further protect
complainants in sexual offence proceedings; to make a consequential
amendment to the Evidence (Children) Act 1997; 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 Offence Evidence) Bill 2004
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Criminal Procedure Amendment (Sexual Offence
Evidence) Act 2004.
2 Commencement
This Act commences on the date of assent to this Act.
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 Evidence (Children) Act 1997 No 143
The Evidence (Children) Act 1997 is amended as set out in
Schedule 2.
Page 2
Criminal Procedure Amendment (Sexual Offence Evidence) Bill 2004
Amendment of Criminal Procedure Act 1986 Schedule 1
Schedule 1 Amendment of Criminal Procedure
Act 1986
(Section 3)
Section 294B
Insert after section 294A:
294B Giving of evidence by complainant in sexual offence
proceedings--alternative arrangements
(1) This section applies to evidence given in proceedings
(including a new trial) in which a person stands charged with
a sexual offence, whether 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.
(2) This section does not apply to or in respect of the giving of
evidence by a child if Part 4 of the Evidence (Children) Act
1997 applies to the giving of that evidence.
(3) A complainant who gives evidence to which this section
applies is entitled (but may choose not):
(a) to give that evidence from a place other than the
courtroom by means of closed-circuit television
facilities or other technology that enables
communication between that place and the courtroom,
or
(b) if such technology is unavailable and the court does not
adjourn the proceeding under subsection (4)--to give
that evidence by use of alternative arrangements made
to restrict contact (including visual contact) between
the complainant and the accused or any other person or
persons in the courtroom, including the following:
(i) use of screens,
(ii) planned seating arrangements for people who
have an interest in the proceeding (including the
level at which they are seated and the people in
the complainant's line of vision),
and, whether evidence is given as referred to in paragraph (a)
or (b) or otherwise, to have a person chosen by the
complainant present near the complainant while he or she is
Page 3
Criminal Procedure Amendment (Sexual Offence Evidence) Bill 2004
Schedule 1 Amendment of Criminal Procedure Act 1986
giving evidence for the purpose of providing emotional
support to the complainant.
(4) If, to enable evidence to be given as referred to in subsection
(3), the court considers it appropriate to do so, the court may
adjourn the proceeding or any part of the proceeding from the
courtroom to another court or place.
(5) Despite subsection (3) (a), a complainant must not give
evidence as referred to in that paragraph if a court, on its own
initiative or on application by a party to the proceeding, orders
that such means not be used.
(6) A court may make an order under subsection (5) only if it is
satisfied that there are special reasons, in the interests of
justice, for the complainant's evidence not to be given by such
means.
(7) In any proceedings in which evidence is given as referred to
in subsection (3), the judge must:
(a) inform the jury that it is standard procedure for
complainants' evidence in such cases to be given by
those means or use of those arrangements, and
(b) warn the jury not to draw any inference adverse to the
accused or give the evidence any greater or lesser
weight because it is given by those means or by use of
those arrangements.
(8) Any place outside the courtroom from which a complainant
gives evidence under this section is taken to be part of the
courtroom in which the proceeding is being held.
(9) If a complainant gives evidence as referred to in subsection
(3) in a place other than a courtroom, the court may order that
a court officer be present at that place.
(10) This section extends to evidence given in proceedings
instituted before the commencement of this section, including
a new trial that was ordered to take place before that
commencement and proceedings that have been partly heard.
(11) In this section:
accused, 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.
Page 4
Criminal Procedure Amendment (Sexual Offence Evidence) Bill 2004
Amendment of Criminal Procedure Act 1986 Schedule 1
complainant, in relation to any proceedings, means the
person, or any of the persons, on whom a sexual offence with
which the accused stands charged in those proceedings is
alleged to have been committed.
sexual offence means:
(a) a prescribed sexual offence, or
(b) an offence against section 67, 68, 71, 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 an
offence to which this section applied, 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 5
Criminal Procedure Amendment (Sexual Offence Evidence) Bill 2004
Schedule 2 Consequential amendment of Evidence (Children) Act 1997
Schedule 2 Consequential amendment of Evidence
(Children) Act 1997
(Section 4)
Section 18 Children have a right to give evidence by closed-circuit
television
Omit section 18 (4). Insert instead:
(4) The court may only make such an order if it is satisfied that
there are special reasons, in the interests of justice, for the
child's evidence not to be given by such means.
Page 6
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