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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Criminal Procedure Amendment
(Vulnerable Persons) Bill 2007
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Criminal Procedure Act 1986 No 209 2
4 Consequential amendment of other Acts 2
5 Repeal of Evidence (Children) Act 1997 No 143 2
6 Repeal of Evidence (Children) Regulation 2004 2
7 Repeal of Act 2
Schedule 1 Amendment of Criminal Procedure Act 1986 3
Schedule 2 Consequential amendment of other Acts 22
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, , 2007
New South Wales
Criminal Procedure Amendment
(Vulnerable Persons) Bill 2007
Act No , 2007
An Act to amend the Criminal Procedure Act 1986 to make further provision with
respect to the giving of evidence in proceedings by children and intellectually
impaired persons and to consequentially repeal 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.
Assistant Speaker of the Legislative Assembly.
Clause 1 Criminal Procedure Amendment (Vulnerable Persons) Bill 2007
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Criminal Procedure Amendment (Vulnerable Persons)
Act 2007.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Criminal Procedure Act 1986 No 209
The Criminal Procedure Act 1986 is amended as set out in Schedule 1.
4 Consequential amendment of other Acts
The Acts specified in Schedule 2 are amended as set out in that
Schedule.
5 Repeal of Evidence (Children) Act 1997 No 143
The Evidence (Children) Act 1997 is repealed.
6 Repeal of Evidence (Children) Regulation 2004
The Evidence (Children) Regulation 2004 is repealed.
7 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(1) This Act is repealed on the day following the day on which all of the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 (Vulnerable Persons) Bill 2007
Amendment of Criminal Procedure Act 1986 Schedule 1
Schedule 1 Amendment of Criminal Procedure Act
1986
(Section 3)
[1] Section 76
Omit the section. Insert instead:
76 Recordings of interviews with vulnerable persons
(1) A written statement may be in the form of a transcript of a
recording made by an investigating official of an interview with
a vulnerable person, during which the vulnerable person was
questioned by the investigating official in connection with the
investigation of the commission or possible commission of the
offence (as referred to in section 306R), but only if this section is
complied with.
(2) The copy of the transcript of the recording must be certified by an
investigating official as an accurate transcript of the recording
and served on the accused person in accordance with section 75.
(3) The accused person must be given, in accordance with the
regulations under section 306V (2), a reasonable opportunity to
listen to and, in the case of a video recording, to view, the
recording.
(4) However, if the requirements of the regulations under section
306V (2) have not been complied with, the recording may be
admitted if the court is satisfied that:
(a) the parties consent to the recording being admitted, or
(b) the accused person and his or her lawyer (if any) have been
given a reasonable opportunity otherwise than in
accordance with such regulations to listen to or view the
recording and it would be in the interests of justice to admit
the recording.
(5) Nothing in this Division requires the prosecutor to serve on the
accused person a copy of the actual recording made by an
investigating official of an interview with the vulnerable person
(other than a transcript of the record).
(6) This section does not affect section 306V (2).
(7) Section 79 (3) does not apply to or in relation to a written
statement certified under this section.
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Criminal Procedure Amendment (Vulnerable Persons) Bill 2007
Schedule 1 Amendment of Criminal Procedure Act 1986
(8) In this section:
investigating official has the same meaning as it has in Part 6 of
Chapter 6.
vulnerable person has the same meaning as it has in Part 6 of
Chapter 6.
Note. Part 6 of Chapter 6 allows vulnerable persons (children and
intellectually impaired persons) to give evidence of a previous
representation in the form of a recording made by an investigating official
of an interview with the vulnerable person. Section 306V (2) (which is
contained in that Part) provides that such evidence is not to be admitted
unless the accused person and his or her lawyer have been given a
reasonable opportunity to listen to or view the recording.
[2] Section 91 Witness may be directed to attend
Insert after section 91 (7):
(7A) A direction may not be given under this section so as to require
the attendance of the complainant in proceedings for a prescribed
sexual offence if the complainant is an intellectually impaired
person (within the meaning of Part 6 of Chapter 6).
[3] Section 185
Omit the section. Insert instead:
185 Recording of interviews with vulnerable persons
(1) If the prosecutor intends to call a vulnerable person to give
evidence in proceedings, the brief of evidence may include a
transcript of a recording made by an investigating official of an
interview with the vulnerable person, during which the
vulnerable person was questioned by the investigating official in
connection with the investigation of the commission or possible
commission of the offence (as referred to in section 306R).
(2) A copy of the transcript of the recording must be certified by an
investigating official as an accurate transcript of the recording
and served on the accused person in accordance with section 183.
(3) A brief of evidence that includes a transcript of a recording of an
interview with a vulnerable person is not required also to include
a written statement from the vulnerable person concerned.
(4) The transcript of the recording is taken, for the purposes of this
Division, to be a written statement taken from the vulnerable
person. Accordingly, any document or other thing identified in
the transcript as a proposed exhibit forms part of the brief of
evidence.
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Criminal Procedure Amendment (Vulnerable Persons) Bill 2007
Amendment of Criminal Procedure Act 1986 Schedule 1
(5) Nothing in this Division requires the prosecutor to serve on the
accused person a copy of the actual recording made by an
investigating official of an interview with the vulnerable person.
(6) This section does not affect section 306V (2).
(7) In this section:
investigating official has the same meaning as it has in Part 6 of
Chapter 6.
vulnerable person has the same meaning as it has in Part 6 of
Chapter 6.
Note. Part 6 of Chapter 6 allows vulnerable persons (children and
intellectually impaired persons) to give evidence of a previous
representation in the form of a recording made by an investigating official
of an interview with the vulnerable person. Section 306V (2) (which is
contained in that Part) provides that such evidence is not to be admitted
unless the accused person and his or her lawyer have been given a
reasonable opportunity to listen to or view the recording.
[4] Section 274 Application
Insert at the end of the section:
Note. Certain provisions of Part 6 (Giving of evidence by vulnerable
persons) of this Chapter extend to evidence given in proceedings of a
civil nature arising from certain offences (for example, see section
306ZA (c)).
[5] Sections 291 (2) and (5), 291C (1) and 306E (3)
Omit "the Evidence (Children) Act 1997" wherever occurring.
Insert instead "Part 6".
[6] Section 291A Other parts of proceedings may be heard in camera
Omit section 291A (6) (b). Insert instead:
(b) the entitlement of a vulnerable person (within the meaning
of Part 6) to have a person present when giving evidence
under section 306ZK.
[7] Section 291B Incest offence proceedings to be held entirely in camera
Omit section 291B (3) (b). Insert instead:
(b) the entitlement of a vulnerable person (within the meaning
of Part 6) to have a person present when giving evidence
under section 306ZK.
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Schedule 1 Amendment of Criminal Procedure Act 1986
[8] Section 294A Arrangements for complainant in prescribed sexual
offence proceedings giving evidence when accused person is
unrepresented
Omit "section 28 of the Evidence (Children) Act 1997" from section 294A (5).
Insert instead "section 306ZL".
[9] Section 294B Giving of evidence by complainant in prescribed sexual
offence proceedings--alternative arrangements
Omit "child if Part 4 of the Evidence (Children) Act 1997" from section
294B (2).
Insert instead "vulnerable person (within the meaning of Part 6) if Division 4
of that Part".
[10] Section 294C Complainant entitled to have support person or persons
present when giving evidence
Omit "the Evidence (Children) Act 1997" from section 294C (2) (a).
Insert instead "Part 6".
[11] Section 294C (6)
Omit "If the complainant is under the age of 16 years when the evidence is
given, section 27 of the Evidence (Children) Act 1997 does not apply.".
[12] Section 294C (7) and (8)
Insert after section 294C (6) (before the note):
(7) If the complainant is a vulnerable person (within the meaning of
Part 6) when the evidence is given, section 306ZK does not
apply.
(8) Nothing in this section affects any entitlement a complainant has
under section 275B.
Page 6
Criminal Procedure Amendment (Vulnerable Persons) Bill 2007
Amendment of Criminal Procedure Act 1986 Schedule 1
[13] Chapter 6, Part 6
Insert after Part 5:
Part 6 Giving of evidence by vulnerable persons
Division 1 Preliminary
306M Definitions
(1) In this Part:
child protection prohibition order means a prohibition order
within the meaning of the Child Protection (Offenders
Prohibition Orders) Act 2004, and includes an interim child
protection prohibition order made under that Act.
court, in relation to a proceeding referred to in section 306ZA (d),
includes the Victims Compensation Tribunal.
courtroom, in relation to a proceeding referred to in section
306ZA (d), includes the place where the Victims Compensation
Tribunal is sitting.
intellectually impaired person--see subsection (2).
investigating official means:
(a) a police officer (other than a police officer who is engaged
in covert investigations), or
(b) in relation to the questioning of a child--a person who is
engaged, in conjunction with an investigating official
described in paragraph (a), in an investigation caused to be
made by the Director-General of the Department of
Community Services under section 27 of the Children and
Young Persons (Care and Protection) Act 1998, or
(c) any other person prescribed by the regulations for the
purposes of this definition.
personal assault offence means any of the following offences:
(a) an offence under Part 3 of the Crimes Act 1900,
(b) an offence under section 545AB or 562AB of the Crimes
Act 1900,
(c) an offence under section 562ZG, or section 562I as in force
before its substitution, of the Crimes Act 1900,
(d) an offence under section 227 of the Children and Young
Persons (Care and Protection) Act 1998,
(e) an offence that includes the commission of, or an intention
to commit, any of the above offences,
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Schedule 1 Amendment of Criminal Procedure Act 1986
(f) an offence of attempting, or of conspiracy or incitement, to
commit any of the above offences.
recording means:
(a) an audio recording, or
(b) a video recording, or
(c) a video recording accompanied by a separately but
contemporaneously recorded audio recording.
vulnerable person means a child or an intellectually impaired
person.
(2) For the purposes of this Part, a person is intellectually impaired
if the person has:
(a) an appreciably below average general intellectual
function, or
(b) a cognitive impairment (including dementia or autism)
arising from, or as a result of, an acquired brain injury,
neurological disorder or a developmental disorder, or
(c) any other intellectual disability.
Note. See section 306P as to the application of this Part to the giving of
evidence by intellectually impaired persons.
306N Words and expressions used in Evidence Act 1995
(1) Words and expressions that are defined in the Evidence Act 1995
and that are used in this Part have the same meanings in this Part
as they have in the Evidence Act 1995.
(2) This section applies except so far as the context or subject-matter
otherwise indicates or requires.
(3) However, this section does not apply to a word or expression
defined in section 306M.
306O Relationship to Evidence Act 1995
The provisions of this Part are in addition to the provisions of the
Evidence Act 1995 and do not, unless a contrary intention is
shown, affect the operation of that Act.
306P Application of Part
(1) To the extent that this Part applies to children, this Part applies
(unless a contrary intention is shown) in relation to evidence
given by a child who is under the age of 16 years at the time the
evidence is given.
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Amendment of Criminal Procedure Act 1986 Schedule 1
(2) To the extent that this Part applies to intellectually impaired
persons, this Part applies (unless a contrary intention is shown) in
relation to evidence given by an intellectually impaired person in
the manner provided by this Part only if the court is satisfied that
the facts of the case may be better ascertained if the person's
evidence is given in such a manner.
Division 2 Recording of out of court statements
306Q Regulations may require interviews with vulnerable persons to be
recorded
If the regulations so require, an investigating official who
questions a vulnerable person in connection with the
investigation of the commission or possible commission of an
offence by the person or any other person is, in accordance with
any such regulations, to record any representation made by the
vulnerable person in the course of the interview during which the
vulnerable person is questioned.
Division 3 Giving evidence of out of court
representations
306R Evidence to which this Division applies
(1) This Division applies to evidence of a previous representation of
a vulnerable person made in the course of an interview during
which the person is questioned by an investigating official in
connection with the investigation of the commission or possible
commission of an offence.
(2) To the extent that this Division applies to intellectually impaired
persons, this Division does not apply to evidence of a previous
representation made before the commencement of this Division.
306S Ways in which evidence of vulnerable person may be given
(1) Subject to this Part, a vulnerable person may give evidence of a
previous representation to which this Division applies made by
the person in any criminal proceeding wholly or partly:
(a) in the form of a recording of the previous representation
made by an investigating official of the interview in the
course of which the previous representation was made and
that is viewed or heard, or both, by the court, or
(b) orally in the courtroom, or
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Criminal Procedure Amendment (Vulnerable Persons) Bill 2007
Schedule 1 Amendment of Criminal Procedure Act 1986
(c) if the evidence is given in any proceeding to which
Division 4 applies--in accordance with alternative
arrangements made under section 306W.
Note. See section 306ZA.
(2) Evidence in the form of a recording given by a vulnerable person
under subsection (1) (a) is not required to be served on a party to
any proceeding (including proceedings in relation to
apprehended violence commenced under Part 15A of the Crimes
Act 1900).
(3) Nothing in this section affects the giving of evidence by means of
a written statement for the purposes of Division 3 of Part 2 of
Chapter 3.
Note. See also section 306ZN.
306T Wishes of vulnerable person to be taken into account
(1) A person must not call a vulnerable person to give evidence of a
previous representation to which this Division applies made by
the vulnerable person by means other than a recording made by
an investigating official of the interview in the course of which
the previous representation was made unless the person has taken
into account any wishes of the vulnerable person, considered in
the light of:
(a) in the case of a child--the child's age and understanding,
or
(b) in the case of an intellectually impaired person--the
person's intellectual impairment.
(2) However, subsection (1) does not permit a person to require a
vulnerable person to express the vulnerable person's wishes in
relation to the matter.
306U Vulnerable person entitled to give evidence in chief in form of
recording
(1) A vulnerable person is entitled to give, and may give, evidence in
chief of a previous representation to which this Division applies
made by the person wholly or partly in the form of a recording
made by an investigating official of the interview in the course of
which the previous representation was made and that is viewed or
heard, or both, by the court. The vulnerable person must not,
unless the person otherwise chooses, be present in the court, or be
visible or audible to the court by closed-circuit television or by
means of any similar technology, while it is viewing or hearing
the recording.
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Criminal Procedure Amendment (Vulnerable Persons) Bill 2007
Amendment of Criminal Procedure Act 1986 Schedule 1
(2) Subject to section 306Y, a person is entitled to give, and may give
(no matter what age the person is when the evidence is given),
evidence as referred to in subsection (1) in the form of a recording
of a previous representation to which this Division applies made
by the person when the person was less than 16 years of age.
Note. Under section 306Y, a court may order that a vulnerable person
not give evidence in the form of a recording if it is satisfied that it is not
in the interests of justice for the evidence to be given by a recording.
(3) If a vulnerable person who gives evidence as referred to in
subsection (1) is not the accused person in the proceeding, the
vulnerable person must subsequently be available for
cross-examination and re-examination:
(a) orally in the courtroom, or
(b) if the evidence is given in any proceeding to which
Division 4 applies--in accordance with alternative
arrangements made under section 306W.
(4) Subsection (3) does not apply in relation to committal
proceedings.
(5) Section 5BBA of the Evidence (Audio and Audio Visual Links)
Act 1998 does not apply to evidence given as referred to in
subsection (1).
306V Admissibility of recorded evidence
(1) The hearsay rule and the opinion rule (within the meaning of the
Evidence Act 1995) do not prevent the admission or use of
evidence of a previous representation to which this Division
applies given by a vulnerable person under this Division in the
form of a recording made by an investigating official.
(2) Evidence of a previous representation to which this Division
applies of a vulnerable person who is not the accused person in a
proceeding that is given by the vulnerable person in the form of
a recording made by an investigating official is not to be admitted
unless it is proved that the accused person and his or her lawyer
(if any) were given, in accordance with the regulations, a
reasonable opportunity to listen to and, in the case of a video
recording, view the recording.
(3) However, if the requirements of any regulations made under
subsection (2) have not been complied with, the recording may be
admitted if the court is satisfied that:
(a) the parties consent to the recording being admitted, or
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Criminal Procedure Amendment (Vulnerable Persons) Bill 2007
Schedule 1 Amendment of Criminal Procedure Act 1986
(b) the accused person and his or her lawyer (if any) have been
given a reasonable opportunity otherwise than in
accordance with such regulations to listen to or view the
recording and it would be in the interests of justice to admit
the recording.
(4) The court may rule as inadmissible the whole or any part of the
contents of a recording adduced as evidence under this Division.
306W Alternative arrangements for giving evidence
The court may order that alternative arrangements be made in
accordance with Division 4 for the giving of evidence by the
vulnerable person in any proceeding to which that Division
applies.
306X Warning to jury
If a vulnerable person gives evidence of a previous representation
wholly or partly in the form of a recording made by an
investigating official in accordance with this Division in any
proceedings in which there is a jury, the judge must warn the jury
not to draw any inference adverse to the accused person or give
the evidence any greater or lesser weight because of the evidence
being given in that way.
306Y Evidence not to be given in form of recording if contrary to
interests of justice
(1) A vulnerable person must not give evidence by means of a
recording made by an investigating official in accordance with
this Division if the court orders that such means not be used.
(2) The court may only make such an order if it is satisfied that it is
not in the interests of justice for the vulnerable person's evidence
to be given by a recording.
306Z Transcripts of recordings
The court may order that a transcript be supplied to the court or,
if there is a jury, to the jury, or both, of all or part of evidence of
a previous representation to which this Division applies made by
a vulnerable person that is given in the form of a recording if it
appears to the court that a transcript would be likely to aid its or
the jury's comprehension of the evidence.
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Amendment of Criminal Procedure Act 1986 Schedule 1
Division 4 Giving of evidence by closed-circuit
television
306ZA Application of Division
This Division applies to the following proceedings:
(a) a proceeding in which it is alleged that a person has
committed a personal assault offence,
(b) a proceeding in relation to an application for an
apprehended violence order, or a variation or revocation of
such an order,
(c) a civil proceeding arising from the commission of a
personal assault offence,
(d) a proceeding before the Victims Compensation Tribunal in
respect of the hearing of a matter arising from the
commission of a personal assault offence that is the subject
of an appeal or a reference to it,
(e) a proceeding in relation to an application for a child
protection prohibition order or to vary or revoke any such
order or a proceeding in relation to a contravention of any
such order.
306ZB Vulnerable persons have a right to give evidence by closed-circuit
television
(1) Subject to this Part, a vulnerable person who gives evidence in
any proceeding to which this Division applies is entitled to give
that evidence by means of closed-circuit television facilities or by
means of any other similar technology prescribed for the
purposes of this section.
(2) Subject to subsections (4) and (5), a child who is 16 or more but
less than 18 years of age at the time evidence is given in a
proceeding to which this Division applies is entitled to give the
evidence as referred to in subsection (1) if the child was under
16 years of age when the charge for the personal assault offence
to which the proceedings relate was laid.
(3) A vulnerable person may choose not to give evidence by the
means referred to in subsection (1).
(4) A vulnerable person must not give evidence by means of
closed-circuit television facilities or any other prescribed
technology if the court orders that such means not be used.
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(5) The court may only make such an order if it is satisfied that there
are special reasons, in the interests of justice, for the vulnerable
person's evidence not to be given by such means.
(6) This section does not apply to a vulnerable person:
(a) who is the accused or defendant in any proceeding referred
to in section 306ZA (a), (b) or (c), or
(b) who is or was accused of committing the offence that gave
rise to a proceeding referred to in section 306ZA (d).
(7) Nothing in this section affects the operation of section 13 of the
Evidence Act 1995.
306ZC Accused vulnerable persons may be allowed to give evidence by
closed-circuit television
(1) This section applies to a vulnerable person who is the accused
person, or person against whom a complaint is made, in any
proceeding to which this Division applies.
(2) The court may make an order permitting a vulnerable person's
evidence in a proceeding to which this Division applies to be
given by means of closed-circuit television facilities or any other
similar technology prescribed for the purposes of this section.
(3) Such an order may be made in relation to a child only if the court
is satisfied:
(a) that the child may suffer mental or emotional harm if
required to give evidence in the ordinary way, or
(b) that the facts may be better ascertained if the child's
evidence is given in accordance with such an order.
(4) A court may make an order under this section permitting a
vulnerable person to whom this section applies who is an accused
detainee within the meaning of the Evidence (Audio and Audio
Visual Links) Act 1998 to give evidence in a proceeding to which
this Division applies by means of closed-circuit television
facilities or any other similar technology prescribed for the
purposes of this section despite Part 1B of that Act.
(5) A vulnerable person may choose not to give evidence by means
of closed-circuit television facilities or other similar technology.
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Criminal Procedure Amendment (Vulnerable Persons) Bill 2007
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306ZD Giving evidence by closed-circuit television
(1) If the evidence of a vulnerable person who is entitled or permitted
to give evidence by means of closed-circuit television facilities or
any other similar technology under this Division is given from a
location outside a court, that location is taken to be part of the
court in which the proceeding is being held.
(2) If the evidence of a vulnerable person who is entitled or permitted
to give evidence by means of closed-circuit television facilities or
any other similar technology under this Division is given from a
location outside a court, the court may order:
(a) that a court officer be present at that other location, and
(b) that any other person be present with the vulnerable person
as an interpreter, for the purpose of assisting the vulnerable
person with any difficulty in giving evidence associated
with an impairment or a disability, or for the purpose of
providing the vulnerable person with other support.
(3) Any such order does not limit the entitlement that a vulnerable
person has under section 306ZK to choose another person to be
present with him or her when giving evidence.
(4) Nothing in this section affects any entitlement a vulnerable
person has under section 275B.
306ZE Giving identification evidence when closed-circuit television is
used
(1) Subject to subsection (4), if a vulnerable person is entitled to give
evidence by means of closed-circuit television facilities or any
other similar technology, that person may not give identification
evidence by those means.
(2) However, such a person is entitled to refuse to give identification
evidence until after the completion of the person's other evidence
(including examination in chief, cross-examination and
re-examination).
(3) In addition, the court must ensure that such a person is not in the
presence of the accused for any longer than is necessary for the
vulnerable person to give identification evidence.
(4) Subsection (1) does not prevent the giving of identification
evidence by means of closed-circuit television facilities or any
other similar technology that relates to evidence that is not a fact
in issue.
Note. Identification evidence is defined in the Evidence Act 1995.
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306ZF Proceedings may be moved to allow use of closed-circuit
television facilities
(1) This section applies if a vulnerable person is entitled or permitted
to give evidence by means of closed-circuit television facilities or
any other similar technology under this Division.
(2) If the court is not equipped with such facilities or technology, or
it otherwise considers it appropriate to do so, the court may
adjourn the proceeding or any part of the proceeding to a court or
place that is equipped with such facilities or technology so that
the vulnerable person's evidence may be given by such means.
306ZG Use of closed-circuit television or similar technology
Closed-circuit television facilities or similar technology used
under this Division for the giving of evidence by a vulnerable
person are to be operated in such a manner that the persons who
have an interest in the proceeding are able to see the vulnerable
person (and any person present with the vulnerable person) on the
same or another television monitor.
306ZH Vulnerable persons have a right to alternative arrangements for
giving evidence when closed-circuit television facilities not
available
(1) This section applies to any proceeding in which a vulnerable
person is entitled or permitted to give evidence by means of
closed-circuit television facilities or other similar technology (by
virtue of section 306ZB or an order made under section 306ZC)
but does not do so because:
(a) such facilities and such technology are not available (and
the court does not move the proceeding under section
306ZF), or
(b) the vulnerable person chooses not to give evidence by
those means, or
(c) the court orders that the vulnerable person may not give
evidence by those means (or, in the case of a vulnerable
person to whom section 306ZC applies, the court does not
order that the vulnerable person may give evidence by
those means).
(2) In such a proceeding, the court must make alternative
arrangements for the giving of evidence by the vulnerable person,
in order to restrict contact (including visual contact) between the
vulnerable person and any other person or persons.
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(3) Those alternative arrangements may include any of the
following:
(a) the use of screens,
(b) 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 vulnerable person's
line of vision),
(c) the adjournment of the proceeding or any part of the
proceeding to other premises.
(4) A vulnerable person may choose not to use any such alternative
arrangements. In that case, the court must direct that the
vulnerable person be permitted to give evidence orally in the
courtroom.
(5) Any premises to which a proceeding is adjourned under this
section are taken to be part of the court in which the proceeding
is being heard.
306ZI Warning to jury
(1) In any criminal proceeding in which the evidence of a vulnerable
person is given by means of closed-circuit television facilities or
any other similar technology (by virtue of section 306ZB), the
judge must:
(a) inform the jury that it is standard procedure for the
evidence of vulnerable persons in such cases to be given by
those means, and
(b) warn the jury not to draw any inference adverse to the
accused person or give the evidence any greater or lesser
weight because of the use of those facilities or that
technology.
(2) In any criminal proceeding in which the evidence of a vulnerable
person is given by means of closed-circuit television facilities or
any other similar technology (by virtue of section 306ZC), the
judge must warn the jury not to draw any inference adverse to the
accused person or give the evidence any greater or lesser weight
because of the use of those facilities or that technology.
(3) In any criminal proceeding in which arrangements are made for
a person to be with a vulnerable person giving evidence (by virtue
of section 306ZD or 306ZK), the judge must:
(a) inform the jury that it is standard procedure in such cases
for vulnerable persons to choose a person to be with them,
and
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Schedule 1 Amendment of Criminal Procedure Act 1986
(b) warn the jury not to draw any inference adverse to the
accused person or give the evidence any greater or lesser
weight because of the presence of that person.
(4) In any criminal proceeding in which alternative arrangements for
the giving of evidence by a vulnerable person are made (by virtue
of section 306ZH or 306ZL), the judge must:
(a) inform the jury that it is standard procedure in such cases
for alternative arrangements to be used when vulnerable
persons give evidence, and
(b) warn the jury not to draw any inference adverse to the
accused person or give the evidence any greater or lesser
weight because of the use of those alternative
arrangements.
Division 5 Miscellaneous
306ZJ Validity of proceedings not affected
(1) The failure of a vulnerable person to give evidence in accordance
with a provision of this Part does not affect the validity of any
proceeding or any decision made in connection with that
proceeding.
(2) The failure of an investigating official to record a representation
of a child in accordance with any regulations made under section
306Q does not affect the validity of any proceeding in which
evidence of the representation is given.
306ZK Vulnerable persons have a right to presence of a supportive
person while giving evidence
(1) This section applies to:
(a) a criminal proceeding in any court, and
(b) a civil proceeding arising from the commission of a
personal assault offence, and
(c) a proceeding in relation to a complaint for an apprehended
violence order, and
(d) a proceeding before the Victims Compensation Tribunal in
respect of the hearing of a matter arising from the
commission of a personal assault offence that is the subject
of an appeal or a reference to it, and
(e) a proceeding in relation to an application for a child
protection prohibition order or to vary or revoke any such
order.
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Criminal Procedure Amendment (Vulnerable Persons) Bill 2007
Amendment of Criminal Procedure Act 1986 Schedule 1
(2) A vulnerable person who gives evidence in a proceeding to which
this section applies is entitled to choose a person whom the
vulnerable person would like to have present near him or her
when giving evidence.
(3) Without limiting a vulnerable person's right to choose such a
person, that person:
(a) may be a parent, guardian, relative, friend or support
person of the vulnerable person, and
(b) may be with the vulnerable person as an interpreter, for the
purpose of assisting the vulnerable person with any
difficulty in giving evidence associated with an
impairment or a disability, or for the purpose of providing
the vulnerable person with other support.
(4) To the extent that the court or tribunal considers it reasonable to
do so, the court or tribunal must make whatever direction is
appropriate to give effect to a vulnerable person's decision to
have such a person present near the vulnerable person, and within
the vulnerable person's sight, when the vulnerable person is
giving evidence.
(5) The court or tribunal may permit more than one support person to
be present with the vulnerable person if the court or tribunal
thinks that it is in the interests of justice to do so.
(6) This section extends to a vulnerable person who is the accused or
the defendant in the relevant proceeding.
Note. This section does not apply if a child or intellectually impaired
person giving evidence is a complainant in proceedings for a prescribed
sexual offence. In that case, section 294C sets out the entitlements of
the child or intellectually impaired person to have one or more support
persons present when giving evidence.
306ZL Vulnerable persons have a right to alternative arrangements for
giving evidence when accused is unrepresented
(1) This section applies to a criminal proceeding in any court, or a
civil proceeding arising from the commission of a personal
assault offence, in which the accused or defendant is not
represented by a lawyer.
(2) A vulnerable person who is a witness (other than the accused or
the defendant) in a proceeding to which this section applies is to
be examined in chief, cross-examined or re-examined by a person
appointed by the court instead of by the accused or the defendant.
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Criminal Procedure Amendment (Vulnerable Persons) Bill 2007
Schedule 1 Amendment of Criminal Procedure Act 1986
(3) If any such person is appointed, that person is to ask the
vulnerable person only the questions that the accused or the
defendant requests the person to put to the vulnerable person.
(4) A person appointed under this section, when acting in the course
of his or her appointment, must not independently give the
accused or the defendant legal or other advice.
(5) The court may choose not to appoint such a person if the court
considers that it is not in the interests of justice to do so.
(6) This section applies whether or not closed-circuit television
facilities or other similar technology is used to give evidence, and
whether or not alternative arrangements under section 306ZH are
used in the proceedings.
(7) Anything 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.
306ZM Court orders
The court may make, vary or revoke an order under a provision
of this Part either on its own motion or on application by a party
to the proceeding or by the vulnerable person giving evidence.
306ZN General discretion of court not affected
Unless a contrary intention is shown, nothing in this Part limits
any discretion that a court has with respect to the conduct of a
proceeding.
Note. See, for example, Part 3.11 (Discretions to exclude evidence) of
the Evidence Act 1995.
306ZO Regulations
Without limiting any regulations made under section 4, the
regulations may make provision for or with respect to the use of
closed-circuit television facilities or other similar technology for
the giving of evidence by vulnerable persons in accordance with
this Part.
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Criminal Procedure Amendment (Vulnerable Persons) Bill 2007
Amendment of Criminal Procedure Act 1986 Schedule 1
306ZP Rules of court
(1) Rules of court may (subject to any regulations made under this
Act) be made in respect of the giving of evidence under this Part.
(2) In particular, rules of court may (subject to the regulations) also
make provision for or with respect to the use of closed-circuit
television facilities or other similar technology for the giving of
evidence by vulnerable persons in accordance with this Part.
[14] Schedule 2 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Criminal Procedure Amendment (Vulnerable Persons) Act 2007
[15] Schedule 2
Insert at the end of the Schedule with appropriate Part and clause numbers:
Part Provisions consequent on enactment of
Criminal Procedure Amendment
(Vulnerable Persons) Act 2007
Definition
In this Part:
amending Act means the Criminal Procedure Amendment
(Vulnerable Persons) Act 2007.
Amendments
The amendments made to this Act by the amending Act do not
extend to any proceedings commenced before the
commencement of the amendments and any such proceedings are
to be dealt with as if the amending Act had not been enacted.
Effect of repeal of Evidence (Children) Act 1997
Any proceedings to which the Evidence (Children) Act 1997
applied that were pending immediately before the repeal of that
Act by the amending Act are to continue to be dealt with as if that
Act had not been repealed.
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Criminal Procedure Amendment (Vulnerable Persons) Bill 2007
Schedule 2 Consequential amendment of other Acts
Schedule 2 Consequential amendment of other Acts
(Section 4)
2.1 Children (Criminal Proceedings) Act 1987 No 55
Section 11 Publication and broadcasting of names
Omit "Part 3 of the Evidence (Children) Act 1997" from section 11 (6).
Insert instead "Division 3 of Part 6 of Chapter 6 of the Criminal Procedure Act
1986".
2.2 Crimes Act 1900 No 40
[1] Section 562ZH Measures to protect children in AVO proceedings
Omit "Parts 3 and 4 of the Evidence (Children) Act 1997" from section
562ZH (5).
Insert instead "Divisions 3 and 4 of Part 6 of Chapter 6 of the Criminal
Procedure Act 1986".
[2] Section 562ZH (6)
Omit "Part 3 of the Evidence (Children) Act 1997".
Insert instead "Division 3 of Part 6 of Chapter 6 of the Criminal Procedure Act
1986".
[3] Section 562ZN Right to presence of supportive person
Omit "child to whom section 27 of the Evidence (Children) Act 1997" from
section 562ZN (1).
Insert instead "person to whom section 306ZK of the Criminal Procedure Act
1986".
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Criminal Procedure Amendment (Vulnerable Persons) Bill 2007
Consequential amendment of other Acts Schedule 2
2.3 Evidence (Audio and Audio Visual Links) Act 1998 No 105
Section 5 Application of Act
Omit "Part 4 of the Evidence (Children) Act 1997" from the note to section
5 (1A).
Insert instead "Division 4 of Part 6 of Chapter 6 of the Criminal Procedure Act
1986".
Page 23
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