New South Wales Consolidated Acts

CRIMINAL PROCEDURE ACT 1986 - SECT 91

91 Witness may be directed to attend

(1) The Magistrate may direct the attendance at the committal proceedings of the person who made a written statement that the prosecution intends to tender as evidence in the committal proceedings. The direction may be given on the Magistrate’s own motion or on the application of the accused person or the prosecutor.

(2) The Magistrate must give the direction if an application is made by the accused person or the prosecutor and the other party consents to the direction being given.

(3) In any other circumstance, the Magistrate may give a direction only if satisfied that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence.

(3A) A direction may not be given for the reasons referred to in subsection (3) if the written statement has already been admitted in evidence. This does not prevent a direction being given merely because the written statement is tendered to the Magistrate for the purpose of determining an application for a direction under this section.

(4) The written statement may be admissible in evidence in the proceedings after the direction is given if:

(a) the accused person and the prosecutor consent to the statement being admitted, or

(b) the Magistrate is satisfied that there are substantial reasons why, in the interests of justice, the statement should be admitted.

(5) A direction given on the application of the accused person or the prosecutor may be withdrawn only:

(a) on the application, or with the consent, of the applicant, or

(b) if the applicant fails to appear, on the application of the other party.

(6) The regulations may make provision for or with respect to the determination of substantial reasons under subsections (3) and (4).

(7) If a person attends to give oral evidence because of a direction under this section, the Magistrate must not allow the person to be cross-examined in respect of matters that were not the basis of the reasons for giving the direction, unless the Magistrate is satisfied that there are substantial reasons why, in the interests of justice, the person should be cross-examined in respect of those matters.

(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 a cognitively impaired person (within the meaning of Part 6 of Chapter 6).

(8) A direction may not be given under this section so as to require the attendance of the complainant in proceedings for a child sexual assault offence if the complainant:

(a) was under the age of 16 years:

(i) on the earliest date on which, or

(ii) at the beginning of the earliest period during which,

any child sexual assault offence to which the proceedings relate was allegedly committed, and

(b) is currently under the age of 18 years.

(9) For the purposes of subsection (8):
"child sexual assault offence" means:

(a) a prescribed sexual offence, or

(b) an offence that, at the time it was committed, was a child sexual assault offence for the purposes of subsection (8), or

(c) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a) or (b).

"complainant", in relation to any proceedings, means the person, or any of the persons, against whom a prescribed 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 80E of the Crimes Act 1900 , the person who is alleged to have been the subject of sexual servitude, and

(b) 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

(c) 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.