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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Evidence (Audio and Audio Visual
Links) Amendment Bill 2007
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Evidence (Audio and Audio Visual Links) Act
1998 No 105 2
4 Amendment of other Acts and rule 2
5 Repeal of Act 2
Schedule 1 Amendments to Evidence (Audio and Audio Visual Links) Act
1998 3
Schedule 2 Amendment of other Acts and Rule 9
b2007-100-19.d13
New South Wales
Evidence (Audio and Audio Visual
Links) Amendment Bill 2007
No , 2007
A Bill for
An Act to amend the Evidence (Audio and Audio Visual Links) Act 1998 to make
further provision with respect to appearances by accused detainees; and for other
purposes.
Clause 1 Evidence (Audio and Audio Visual Links) Amendment Bill 2007
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Evidence (Audio and Audio Visual Links) Amendment 3
Act 2007. 4
2 Commencement 5
This Act commences on a day or days to be appointed by proclamation. 6
3 Amendment of Evidence (Audio and Audio Visual Links) Act 1998 No 105 7
The Evidence (Audio and Audio Visual Links) Act 1998 is amended as 8
set out in Schedule 1. 9
4 Amendment of other Acts and rule 10
The Acts and Rule set out in Schedule 2 are amended as set out in that 11
Schedule. 12
5 Repeal of Act 13
(1) This Act is repealed on the day following the day on which all of the 14
provisions of this Act have commenced. 15
(2) The repeal of this Act does not, because of the operation of section 30 16
of the Interpretation Act 1987, affect any amendment made by this Act. 17
Page 2
Evidence (Audio and Audio Visual Links) Amendment Bill 2007
Amendments to Evidence (Audio and Audio Visual Links) Act 1998 Schedule 1
Schedule 1 Amendments to Evidence (Audio and 1
Audio Visual Links) Act 1998 2
(Section 3) 3
[1] Section 3 Interpretation 4
Omit the definitions of accused child detainee, preliminary criminal 5
proceeding and relevant criminal proceeding from section 3 (1). 6
[2] Section 3 (1) 7
Insert in alphabetical order: 8
designated government agency means the following: 9
(a) the Department of Corrective Services, 10
(b) the Department of Juvenile Justice, 11
(c) any other government agency prescribed by the 12
regulations. 13
government agency means any person, department or body 14
exercising executive or administrative functions on behalf of the 15
Government. 16
[3] Section 3 (1) 17
Insert in alphabetical order: 18
physical appearance proceedings means the following: 19
(a) any trial (including an arraignment on the day appointed 20
for the trial) or hearing of charges, 21
(b) any inquiry into a person's fitness to be tried for an 22
offence, 23
(c) any proceeding relating to bail: 24
(i) brought before a Magistrate or justice in respect of 25
the period between the person being charged with 26
the offence and the person's first appearance before 27
a court in relation to the offence, or 28
(ii) on a person's first appearance before a court in 29
relation to the offence. 30
Page 3
Evidence (Audio and Audio Visual Links) Amendment Bill 2007
Schedule 1 Amendments to Evidence (Audio and Audio Visual Links) Act 1998
[4] Section 3 (1), definition of "NSW court" 1
Insert at the end of the definition: 2
, or 3
(d) a Children's Registrar exercising any function of the 4
Children's Court conferred or imposed on the Registrar by 5
or under the Children's Court Act 1987. 6
[5] Section 3A Appearances and entitlements to be present before courts 7
Omit "preliminary criminal proceedings and relevant" from the note to section 8
3A (1). 9
[6] Section 5 Application of Act 10
Omit the note to section 5 (1A). 11
[7] Section 5 (4A) 12
Insert after section 5 (4): 13
(4A) Part 1A (as amended by the Evidence (Audio and Audio Visual 14
Links) Amendment Act 2007) extends to any proceedings pending 15
in a NSW court after the commencement of subsection (4) and on 16
the commencement of this subsection. 17
[8] Section 5 (5C) 18
Insert after section 5 (5B): 19
(5C) Part 1B (as amended by the Evidence (Audio and Audio Visual 20
Links) Amendment Act 2007) extends to any criminal 21
proceedings pending in a NSW court after the commencement of 22
subsection (5) and at the commencement of this subsection. 23
[9] Section 5B Taking evidence and submissions from outside courtroom or 24
place where court is sitting--proceedings generally 25
Omit "and subsection (2A)" from section 5B (1). 26
Insert instead ", subsection (2A) and section 5BAA". 27
[10] Section 5B (2A) 28
Omit "preliminary criminal proceeding or relevant". 29
[11] Section 5B (2A), note 30
Omit "preliminary criminal proceedings and relevant". 31
Page 4
Evidence (Audio and Audio Visual Links) Amendment Bill 2007
Amendments to Evidence (Audio and Audio Visual Links) Act 1998 Schedule 1
[12] Section 5BAA 1
Insert after section 5B: 2
5BAA Taking evidence of government agency witnesses from outside 3
courtroom or place where court is sitting--proceedings generally 4
(1) Subject to any applicable rules of court, a government agency 5
witness must, unless the court otherwise directs, give evidence to 6
the court by audio link or audio visual link from any place within 7
New South Wales. 8
(2) Subsection (1) does not apply unless the necessary audio links or 9
audio visual links are available or can reasonably be made 10
available. 11
(3) The court may make a direction under subsection (1) on its own 12
motion or on the application of a party to the proceedings. 13
(4) The court may make such a direction only if it is satisfied: 14
(a) that the evidence to be given is likely to be contentious, 15
and 16
(b) that it is in the interests of the administration of justice for 17
the government agency witness to give evidence by 18
appearing physically before the court. 19
(5) In this section: 20
expert, in relation to any issue, means a person who has such 21
knowledge or experience of, or in connection with, that issue, or 22
issues of the character of that issue, that his or her opinion on that 23
issue would be admissible in evidence. 24
expert's report means a written statement by an expert (whether 25
or not an expert witness in the proceedings concerned) that sets 26
out the expert's opinion and the facts, and assumptions of fact, on 27
which the opinion is based and includes a hospital report. 28
government agency witness means the following: 29
(a) a member of staff of the Government Service or the NSW 30
Health Service, or a person employed in or engaged by any 31
government agency, who has provided an expert's report 32
for use in evidence in proceedings or proposed 33
proceedings or who is called as an expert to give opinion 34
evidence in proceedings, 35
(b) a police officer called to give evidence in proceedings to 36
corroborate evidence in chief given by another police 37
officer for the prosecution, 38
(c) any other witness of a class prescribed by the regulations. 39
Page 5
Evidence (Audio and Audio Visual Links) Amendment Bill 2007
Schedule 1 Amendments to Evidence (Audio and Audio Visual Links) Act 1998
hospital report means a written statement concerning a patient, 1
made by or on behalf of a hospital, that the party serving the 2
statement intends to adduce in evidence in chief at the trial. 3
[13] Sections 5BA and 5BB 4
Omit the sections. Insert instead: 5
5BA Accused detainee to appear physically in physical appearance 6
proceedings 7
(1) An accused detainee who is charged with an offence and is 8
required to appear (or be brought or be present) before a NSW 9
court in physical appearance proceedings concerning the offence 10
must, unless the court otherwise directs, appear physically before 11
the court. 12
Note. accused detainee and physical appearance proceedings are 13
defined in section 3. 14
(2) Subsection (1) does not apply to any bail proceedings that occur 15
during a weekend or on a public holiday or that relate to an 16
accused detainee who is being held in custody at a place 17
prescribed by the regulations. 18
(3) Subsection (1) does not apply if the parties to the proceeding 19
consent to the accused detainee appearing before the court by 20
audio visual link from any place within New South Wales at 21
which the accused detainee is in custody other than the courtroom 22
or place where the court is sitting. 23
(4) The court may make a direction under subsection (1) on its own 24
motion or on the application of any party to the proceeding or of 25
any person on behalf of a designated government agency. 26
(5) The court may make such a direction only if it is satisfied that it 27
is in the interests of the administration of justice for the accused 28
detainee to appear before the court by audio visual link from a 29
place within New South Wales at which the person is in custody 30
other than the courtroom or place where the court is sitting. 31
(6) Without limiting the factors that the court may take into account 32
in determining whether it is in the interests of the administration 33
of justice to make a direction under subsection (1), the court must 34
take into account such of the following factors as are relevant in 35
the circumstances of the case: 36
(a) the risk that the personal security of a particular person or 37
persons (including the accused detainee) may be 38
endangered if the accused detainee appears in the 39
courtroom or place where the court is sitting, 40
Page 6
Evidence (Audio and Audio Visual Links) Amendment Bill 2007
Amendments to Evidence (Audio and Audio Visual Links) Act 1998 Schedule 1
(b) the risk of the accused detainee escaping, or attempting to 1
escape, from custody when attending the courtroom or 2
place where the court is sitting, 3
(c) the behaviour of the accused detainee when appearing 4
before a court in the past, 5
(d) the conduct of the accused detainee while in custody, 6
including the accused detainee's conduct during any 7
period in the past during which the accused detainee was 8
being held in custody in a correctional centre or detention 9
centre, 10
(e) the potential for disruption of the accused detainee's 11
participation in a rehabilitation or education program if the 12
accused detainee were to be transported to, and appear in, 13
the courtroom or place where the court is sitting, 14
(f) safety and welfare considerations in transporting the 15
accused detainee to the courtroom or place where the court 16
is sitting, 17
(g) the efficient use of available judicial and administrative 18
resources, 19
(h) any other relevant matter raised by a party to the 20
proceeding or other applicant for the making of the 21
direction. 22
(7) If the accused detainee is a child, the court must also take into 23
account such additional factors to those specified in subsection 24
(6) as are relevant in the circumstances of the case and that are 25
specified in rules of court. 26
(8) A person who was a child when a direction was made under this 27
section to appear before a court by audio visual link is entitled to 28
continue to appear before the court by audio visual link in 29
accordance with the direction even if the person becomes an adult 30
before the conclusion of the proceeding concerned. 31
5BB Accused detainee to appear by audio visual link in criminal 32
proceedings other than physical appearance proceedings 33
(1) An accused detainee who is charged with an offence and is 34
required to appear (or be brought or be present) before a NSW 35
court in criminal proceedings concerning the offence (other than 36
physical appearance proceedings) must, unless the court 37
otherwise directs, appear before the court by audio visual link. 38
Note. accused detainee and physical appearance proceedings are 39
defined in section 3. 40
Page 7
Evidence (Audio and Audio Visual Links) Amendment Bill 2007
Schedule 1 Amendments to Evidence (Audio and Audio Visual Links) Act 1998
(2) Subsection (1) does not apply unless the necessary audio visual 1
links are available or can reasonably be made available. 2
(3) The court may make a direction under subsection (1) on its own 3
motion or on the application of any party to the proceeding or of 4
any person on behalf of a designated government agency. 5
(4) The court may make such a direction only if it is satisfied, after 6
taking into account any factors that are relevant in the 7
circumstances of the case together with any factors that are 8
specified in rules of court, that it is in the interests of the 9
administration of justice for the accused detainee to appear 10
physically before the court. 11
(5) A person who was a child when a direction was made under this 12
section to appear physically before a court is entitled to continue 13
to appear before the court in accordance with the direction even 14
if the person becomes an adult before the conclusion of the 15
proceeding concerned. 16
[14] Section 5BBA Appearances of accused child detainee by audio visual 17
link in preliminary criminal proceedings and relevant criminal 18
proceedings 19
Omit the section. 20
[15] Section 5BC Facilities for private communication 21
Omit "preliminary criminal proceeding or a relevant". 22
[16] Schedule 1 Savings, transitional and other provisions 23
Insert at the end of clause 1 (1): 24
the Evidence (Audio and Audio Visual Links) Amendment Act 2007 25
Page 8
Evidence (Audio and Audio Visual Links) Amendment Bill 2007
Amendment of other Acts and Rule Schedule 2
Schedule 2 Amendment of other Acts and Rule 1
(Section 4) 2
2.1 Children's Court Rule 2000 3
[1] Clause 32A Additional factors for appearance by audio visual link: 4
section 5BA of Evidence (Audio and Audio Visual Links) Act 1998 5
Omit "specified as factors" from clause 32A (1). 6
Insert instead "specified as additional factors". 7
[2] Clause 32A (1) 8
Omit "section 5BBA (1)". Insert instead "section 5BA (1)". 9
[3] Clause 32A (1) (g), (k) and (n)(q) 10
Omit the paragraphs. 11
2.2 Crimes (Administration of Sentences) Act 1999 No 93 12
Section 55 Hearing of charges by Visiting Magistrate 13
Omit "section 5BB (1)" from section 55 (5H). 14
Insert instead "section 5BA (1)". 15
2.3 Criminal Procedure Act 1986 No 209 16
Section 306U Vulnerable person entitled to give evidence in chief in form 17
of recording 18
Omit "Section 5BBA" from section 306U (5). Insert instead "Section 5BA". 19
Page 9
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