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Evidence) Bill 1996
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
The proposed amendments will make it possible for all children who give
evidence as witnesses in certain proceedings to be accompanied by a parent,
relative, friend or other supportive person.
In addition, children giving evidence in criminal or civil proceedings arising
from a personal assault offence, or in proceedings involving the making of an
apprehended violence order, will be entitled to give that evidence by means
of closed-circuit television facilities or similar technology.
A child who gives evidence in his or her own defence in proceedings in the
Children's Court will have a limited right to give that evidence by means of
closed-circuit television facilities, in cases where the court thinks it
appropriate.
Amended in committee--see table at end of volume.
Clause 2 provides for the commencement of the proposed Act on a day or
days to be proclaimed.
Clause 3 is a formal provision giving effect to the amendments to the
Crimes Act 1900 set out in Schedule 1.
Schedule 1
Amendments
Evidence of child witnesses
At present, section 405D of the Crimes Act I900 provides that a court may,
on the application of the prosecution, make an order permitting a child victim
of certain sexual offences to give evidence by means of closed-circuit
television facilities. The court may make such an order if the court is satisfied
that it is likely that the child would suffer mental or emotional harm if
required to give evidence in the ordinary way, or if it is likely that the facts
would be better ascertained if the child's evidence were given by means of
closed-circuit television facilities.
That section is proposed to be repealed and re-enacted. The new section
applies to criminal and civil proceedings arising from or involving a personal
assault offence and to proceedings in relation to a complaint for an
apprehended violence order. In such cases, the new section creates a
presumption that the evidence of any child witness will be given by means of
closed-circuit television facilities or similar technology, regardless of whether
or not the child is the victim. (See Schedule 1 [2])
Proposed section 405D provides that such facilities will not be used if the
child witness does not wish to use them, or if the court is satisfied that it is
not in the interests of justice for them to be used. In addition, such facilities
will not be used for the giving of identification evidence, since the child
needs to be able to see (or hear) the person whom the child is identifying.
Special provision is made to minimise as much as possible the contact
between the child and that person, and to minimise the effect of that contact
on the child's evidence. (See proposed section 405DC)
Explanatory note page 2
Evidence of accused children
At present, no special provision is made in the Crimes Act 1900 for the
giving of evidence by accused children. Proposed section 405D (discussed
above) applies to all children giving evidence, even those who are the
accused in criminal proceedings, or against whom an apprehended violence
order is being sought. However, the section does not apply to accused
children if the proceedings are being heard in the Children's Court.
Proposed section 405DA makes provision for such children giving evidence
in the Children's Court. The Children's Court is given the power to order the
use of closed-circuit television facilities or other similar technology for the
purposes of a child's evidence, but such an order can only be made if the
court is satisfied that the child would suffer mental or emotional harm if
evidence were given by ordinary means, or that the facts would be better
ascertained if evidence were given by means of closed-circuit television
facilities or other similar technology. (See Schedule 1 [2])
Support of children giving evidence
At present, in the narrow class of cases where the giving of evidence by
means of closed-circuit television facilities is permitted, the court is also
empowered to order that any person may be present with the child as a
support or as an interpreter.
Proposed section 405CA creates an absolute right for all children who give
evidence in specified proceedings to have a person of their choice with them.
That person may be there to give support, assistance with a language problem
or assistance with any difficulty associated with a disability. (See
Schedule 1 [l])
Alternative arrangements
At present, section 405F creates a discretion for the court to order alternative
arrangements for the giving of a child victim's evidence, in order to restrict
contact (including visual contact) between the child and the defendant. Those
arrangements may involve special seating arrangements or the use of screens.
That section is proposed to be repealed and re-enacted. The new section
creates a presumption in favour of the use of alternative arrangements for the
giving of evidence of child witnesses, where closed circuit television, or
similar technology, is not available or is not used. (See Schedule 1 [5])
Special provision is made for proceedings in which the accused is not
represented by a legal practitioner. The court may make alternative
arrangements to avoid the child having to be questioned directly by the
accused, or having to hear the accused's voice. (See proposed section 405FA)
Explanatory note page 3
Warnings to juries
At present, in proceedings in which evidence is given by closed-circuit
television facilities, or by means of any "alternative arrangements", the court
is required to 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 arrangements. (See existing section 405H)
The proposed amendments made to section 405D will mean that the use of
closed-circuit television facilities will be standard procedure. The warning
required to be given to juries in such cases is amended accordingly. (See
Schedule 1 [6])
Similar warnings are also required in proceedings in which a person is
present with the child when giving evidence, or where alternative
arrangements are used. (See proposed section 405H (2) and (3))
Other amendments
Schedule 1 [3], [4] and [7] make amendments consequential on the proposed
changes.
Schedule 1 [8] inserts a transitional provision, so as to provide that the new
rules about children's evidence do not have effect in relation to proceedings
that commenced before the relevant amendments were commenced.
Explanatory note page 4