Northern Territory Explanatory Statements

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EVIDENCE OF CHILDREN AMENDMENT BILL 2007

GENERAL OUTLINE

The Bill provides for various amendments to procedural laws dealing with the evidence of child and other vulnerable witnesses to sexual and related offences. The Bill corrects a number of practical problems with the application of the Evidence Reform (Children and Sexual Offences) Act 2004 as well as clarifying and expanding the principles of this Act.

The Bill also extends the existing provisions relating to sexual offences to serious violence offences. It aims to reduce the trauma experienced by child and other vulnerable witnesses in criminal proceedings for sexual and serious violence offences, and to improve the quality of evidence from those witnesses.

The objectives of the Bill are achieved by amendments to the
Justices Act, the Evidence Act, and the Sexual Offences (Evidence and Procedure) Act.

NOTES ON CLAUSES

Clause 1. Short Title.

This is a formal clause which provides for the citation of the Bill.
The Bill when passed may be cited as the Evidence of Children Amendment Act 2007.

Clause 2. Commencement.

This clause provides that the amendments will commence on gazettal.
Clause 3. Act amended

This clause sets out that the amendments made in Part Two of the Bill are amendments to the Justices Act.

Clause 4. Amendment of section 4 (Interpretation)

This clause provides for the insertion of definitions of “child” and “serious violence offence” in section 4 of the Justices Act. A serious violence offence is one punishable by imprisonment for five or more years and defined by reference to various parts and sections of the Criminal Code.

Clause 5. Amendment of s105AA (Evidence of child witness in sexual offence matter)

This clause amends section 105AA of the Justices Act to provide that the evidence of a child at committal must be given by written or recorded statement in proceedings for:

· a sexual offence;
· a sexual offence and other offences
· a serious violence offence; and
· a serious violence offence and other offences.

Clause 6. Amendment of section 105A (Procedure where prosecutor proposes to tender written or recorded statement to the Court)

This clause omits the requirement to provide the defendant and his or her legal representative with a copy of the recorded statement of a child. Amended section 105A will require the prosecution to provide the defendant and the defendant’s lawyer with a transcript of a recorded statement and an invitation to contact the prosecutor to arrange a time to view the recorded statement.

Clause 7. Amendment of section 105B (Written and recorded statements may be admitted in evidence)

This clause sets out that (for the purpose of a committal hearing) the statement of a child need not comply with the requirements of the
Oaths Act to be admitted in evidence.

Clause 8. Act amended

This clause sets out that the amendments made in Part Three of the Bill are amendments to the Evidence Act.

Clause 9. Amendment of section 21A (Evidence of vulnerable witnesses)

This clause amends section 21A(1) of the Evidence Act by inserting definitions of “authorised person”, “examination”, “recorded statement” and “serious violence offence”. It also amends section 21A(2) to make clear that the vulnerable witness protections contained in that subsection operate in addition to other procedural protections provided to a child witness.

Clause 10. Substitution of section 21B

This clause removes and replaces the current sections 21B and 21C. The amendment provides that a court may allow the use of a recorded statement as the whole or part of a witness’s evidence in chief, or allow the witness to give evidence at a special sitting of the court.
Evidence given at a special sitting may be recorded and replayed to the jury as the whole or part of the witness’s evidence.

It also provides that the vulnerable witness should not be visible or audible to the court during the replay of recorded evidence, except where the witness elects to be present in the courtroom.

The new section 21C:

a) allows the court to give directions as to the procedure to be used and sets out the directions that may be given in relation to evidence given outside and transmitted to the courtroom


b) inserts subsection 21C(2) setting out the procedure to be followed where the evidence of a vulnerable witnesses is given at a special sitting; and
c) inserts subsection 21C(3) to provide that where a witnesses is giving evidence from outside the courtroom, the court must, unless there are good reasons to the contrary, delay the giving of identification evidence (if required) until the end of the witness’s evidence.

Clause 11. Amendment of s21D (Principles in relation to child witness)

This clause provides that a child may elect to give evidence in the presence of the accused, and the court should not prevent the child from so doing, if satisfied that the child is able and wants to do so.

Clause 12. Insertion of sections 21E and 21F

This clause inserts sections 21E and 21F. Section 21E provides for the recording of the evidence of a vulnerable witness in criminal proceedings, and the use of that recorded evidence in subsequent civil or criminal proceedings.

Section 21F provides for the closure of the court in cases involving sexual and serious violence offences, either where a vulnerable witness is to give evidence or where recorded evidence of the vulnerable witness is to be replayed before the court.

Clause 13. Amendment of section 26E (Exception of rule against hearsay evidence)

This clause extends the operation of the current section 26E of the Evidence Act from cases involving a sexual offence to those involving a sexual offence or a serious violence offence.

Clause 14. Act amended

This clause sets out that the amendments made in Part Four of the Bill are amendments to the Sexual Offences (Evidence and Procedure) Act.

Clause 15. Amendment of section 3 (Definitions)

This clause inserts a definition of “sexual offence” within section 3 of the Sexual Offences (Evidence and Procedure) Act.

 

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