EVIDENCE (PROTECTION OF CHILDREN) AMENDMENT BILL 2003
This is a Bill, not an Act. For current law, see the Acts databases.
EVIDENCE (PROTECTION OF CHILDREN) AMENDMENT BILL 2003
Queensland
EVIDENCE (PROTECTION OF
CHILDREN) AMENDMENT
BILL 2003
Queensland
EVIDENCE (PROTECTION OF
CHILDREN) AMENDMENT BILL 2003
TABLE OF PROVISIONS
Section Page
PART 1--PRELIMINARY
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2 Commencement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
PART 2--AMENDMENT OF BAIL ACT 1980
3 Act amended in pt 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4 Amendment of s 8 (Power of court as to bail). . . . . . . . . . . . . . . . . . . . . . . . 10
PART 3--AMENDMENT OF CHILDRENS COURT ACT 1992
5 Act amended in pt 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6 Amendment of s 20 (Who may be present at a proceeding) . . . . . . . . . . . . . 11
PART 4--AMENDMENT OF COMMISSION FOR CHILDREN
AND YOUNG PEOPLE ACT 2000
7 Act amended in pt 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8 Insertion of new s 122A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
PART 5--AMENDMENT OF CRIMINAL CODE
9 Code amended in pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
10 Amendment of s 1 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
11 Amendment of s 349 (Rape) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
12 Amendment of s 354A (Kidnapping for ransom) . . . . . . . . . . . . . . . . . . . . . 14
13 Insertion of new s 560A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
560A Place where indictment is presented . . . . . . . . . . . . . . . . . . . . . . . . . 14
14 Insertion of new ch 62, ch div 1, hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
15 Insertion of new ch 62, ch div 2 hdg, ch div 3 and ch div 4, hdg ... 15
Chapter division 2--Directions and rulings before trial
Chapter division 3--Disclosure by the prosecution
2
Evidence (Protection of Children) Amendment
Bill 2003
Chapter subdivision A--Preliminary provisions
590AB Disclosure obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
590AC Chapter division does not have particular consequences . . . . . . . . . 15
Chapter Subdivision B--Interpretation
590AD Definitions for ch div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
590AE Meaning of "possession of the prosecution". . . . . . . . . . . . . . . . . . . 18
590AF Meaning of "sensitive evidence". . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
590AG Particular references to an accused person include references to a
lawyer acting for the accused person . . . . . . . . . . . . . . . . . . . . . . . . . 19
Chapter subdivision C--Disclosure
590AH Disclosure that must always be made. . . . . . . . . . . . . . . . . . . . . . . . 19
590AI When mandatory disclosure must be made . . . . . . . . . . . . . . . . . . . . 21
590AJ Disclosure that must be made on request. . . . . . . . . . . . . . . . . . . . . . 21
590AK When requested disclosure must be made . . . . . . . . . . . . . . . . . . . . 22
590AL Ongoing obligation to disclose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
590AM How disclosure may be made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Chapter subdivision D--Limitations on disclosure
590AN Limit on disclosure of things accused person already has . . . . . . . . 24
590AO Limit on disclosure of sensitive evidence . . . . . . . . . . . . . . . . . . . . . 24
590AP Limit on disclosure of witness contact details . . . . . . . . . . . . . . . . . 26
590AQ Limit on disclosure contrary to the public interest . . . . . . . . . . . . . . 27
Chapter subdivision E--Viewing
590AR Viewing evidence that is not original evidence. . . . . . . . . . . . . . . . . 29
590AS Viewing original evidence that is not sensitive evidence . . . . . . . . . 30
Chapter subdivision F--Miscellaneous provisions
590AT Accused person may waive entitlement . . . . . . . . . . . . . . . . . . . . . . 31
590AU Court may waive requirement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
590AV Disclosure directions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
590AW When issues about disclosure must be resolved . . . . . . . . . . . . . . . 32
590AX Unauthorised copying of sensitive evidence. . . . . . . . . . . . . . . . . . . 32
16 Amendment of s 590B (Advanced notice of expert evidence) . . . . . . . . . . . 33
3
Evidence (Protection of Children) Amendment
Bill 2003
17 Amendment of s 590C (Advance notice of representation if person who
made it is unavailable). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
18 Insertion of new ch 62, ch div 5 hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
19 Amendment, relocation and renumbering of s 592A (Pre-trial directions
and rulings) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
20 Relocation and renumbering of s 594 (Accused person to be called upon
to plead to indictment). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
21 Insertion of new ch 62, ch div 6 hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
22 Insertion of new ch 62, ch div 7 hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
23 Insertion of new ch 62, ch div 8 hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
24 Insertion of new ch 62, ch div 9 hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
25 Relocation and renumbering of s 606 (Separate trials) . . . . . . . . . . . . . . . . . 35
26 Relocation and renumbering of s 607 (Juries). . . . . . . . . . . . . . . . . . . . . . . . 36
27 Insertion of new ch 62, ch div 10 hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
28 Insertion of new ch 62, ch div 11 hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
29 Insertion of new ch 62, ch div 12 hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
30 Insertion of new s 668A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
668A Reference by Attorney-General of pre-trial direction or ruling . . . . . 36
31 Amendment of s 669 (Power to grant new trial) . . . . . . . . . . . . . . . . . . . . . . 37
32 Insertion of new s 708 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
708 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
33 Insertion of new ch 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
CHAPTER 78--TRANSITIONAL PROVISION FOR EVIDENCE
(PROTECTION OF CHILDREN) AMENDMENT ACT 2003
715 Transitional provision for disclosure by the prosecution. . . . . . . . . . 38
PART 6--AMENDMENT OF CRIMINAL LAW
(REHABILITATION OF OFFENDERS) ACT 1986
34 Act amended in pt 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
35 Amendment of s 9A (Disclosure of particulars in special cases) . . . . . . . . . 39
PART 7--AMENDMENT OF CRIMINAL LAW (SEXUAL
OFFENCES) ACT 1978
36 Act amended in pt 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
37 Insertion of new pt 1, hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
38 Insertion of new pt 2, hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4
Evidence (Protection of Children) Amendment
Bill 2003
39 Amendment of s 4 (Special rules of evidence concerning sexual offences) . 40
40 Insertion of new s 4A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4A Evidence of complaint generally admissible . . . . . . . . . . . . . . . . . . . 40
41 Insertion of new pt 3, hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
42 Insertion of new pt 4, hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
43 Insertion of new s 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
15 Transitional provision for Evidence (Protection of Children) Act
2003 ............................................. 42
PART 8--AMENDMENT OF CRIMINAL PROCEEDS
CONFISCATION ACT 2002
44 Act amended in pt 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
45 Amendment of s 38 (Particular orders Supreme Court may make) . . . . . . . 42
46 Insertion of new s 38A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
38A Meaning of "judicial registrar" for subdiv 1 . . . . . . . . . . . . . . . . . . . 43
47 Amendment of s 130 (Particular orders Supreme Court may make) . . . . . . 43
48 Insertion of new s 130A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
130A Meaning of "judicial registrar" for subdiv 1 . . . . . . . . . . . . . . . . . . . 43
PART 9--AMENDMENT OF DIRECTOR OF PUBLIC
PROSECUTIONS ACT 1984
49 Act amended in pt 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
50 Amendment of s 10 (Functions of director) . . . . . . . . . . . . . . . . . . . . . . . . . 44
51 Insertion of new s 24C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
24C Disclosures by police officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
PART 10--AMENDMENT OF EVIDENCE ACT 1977
52 Act amended in pt 10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
53 Insertion of new s 2A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
2A Notes in text . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
54 Amendment of s 3 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
55 Amendment of s 4 (Meaning of "copy" of document etc.) . . . . . . . . . . . . . . 48
56 Amendment of s 8 (Witnesses in a criminal proceeding) . . . . . . . . . . . . . . . 49
57 Replacement of ss 9 and 9A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Division 1A--Competency of witnesses and capacity to be sworn
9 Presumption as to competency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
5
Evidence (Protection of Children) Amendment
Bill 2003
9A Competency to give evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
9B Competency to give sworn evidence . . . . . . . . . . . . . . . . . . . . . . . . . 50
9C Expert evidence about witness's ability to give evidence . . . . . . . . . 50
9D Evidence admitted under s 9A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Division 1B--Special provisions for child witnesses
9E Principles for dealing with a child witness . . . . . . . . . . . . . . . . . . . . 51
58 Omission of s 11 (Communications to husband or wife) . . . . . . . . . . . . . . . 51
59 Amendment of s 21A (Evidence of special witnesses) . . . . . . . . . . . . . . . . . 51
60 Insertion of new pt 2, divs 4A and 4B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Division 4A--Evidence of affected children
Subdivision 1--Preliminary
21AA Purposes of div 4A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
21AB How purposes are to be achieved. . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
21AC Definitions for div 4A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
21AD Meaning of "child" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Subdivision 2--Committal proceeding
21AE Application of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
21AF Evidence-in-chief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
21AG Cross-examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
21AH Limitation on cross-examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Subdivision 3--Pre-recording of affected child's evidence
21AI Application of sdiv 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
21AJ Presentation of indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
21AK Video-taping of affected child's evidence . . . . . . . . . . . . . . . . . . . . . 63
21AL Court to give directions for taking an affected child's evidence . . . . 64
21AM Use of pre-recorded evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
21AN Giving of further evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
21AO Court order that evidence not to be taken and recorded under this
sdiv .............................................. 66
Subdivision 4--Taking of affected child's evidence using audio visual link
or screen
21AP Application of sdiv 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
6
Evidence (Protection of Children) Amendment
Bill 2003
21AQ Audio visual links or screening arrangements must be used . . . . . . . 67
21AR Court may order that s 21AQ does not apply. . . . . . . . . . . . . . . . . . . 68
Subdivision 5--General
21AS Prosecutor or applicant to advise that an affected child is to
give evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
21AT Identification of persons or things by affected child . . . . . . . . . . . . . 69
21AU Exclusion of public . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
21AV Affected child entitled to support . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
21AW Instructions to be given to jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
21AX Orders, directions and rulings concerning affected child witnesses . 71
Division 4B--Dealing with a recording
21AY Definitions for div 4B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
21AZ Approval to edit or otherwise change a recording . . . . . . . . . . . . . . . 73
21AZA Court to give directions about the use or safe-keeping of a
recording ......................................... 73
21AZB Unauthorised possession of, or dealing with, recording . . . . . . . . . 73
21AZC Publishing a recording prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . 74
61 Amendment of s 39C (Definitions for pt 3A) . . . . . . . . . . . . . . . . . . . . . . . . 75
62 Amendment of s 83 (Definitions for div 6) . . . . . . . . . . . . . . . . . . . . . . . . . . 75
63 Amendment of s 93A (Statement made before proceeding by child
under 12 years or intellectually impaired person) . . . . . . . . . . . . . . . . . . . . . 75
64 Insertion of new ss 93AA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
93AA Unauthorised possession of, or dealing in, s 93A criminal
statements ....................................... 76
65 Amendment of s 131 (Witnesses for defence to be sworn). . . . . . . . . . . . . . 77
66 Insertion of new pt 9, div 1 hdg. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
67 Insertion of new pt 9, div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Division 2--Evidence (Protection of Children) Amendment Act 2003
137 Definitions for div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
138 Communications between a husband and wife . . . . . . . . . . . . . . . . . 78
139 Evidence admitted under repealed s 9 . . . . . . . . . . . . . . . . . . . . . . . . 78
140 Committal proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
141 Pre-recording of evidence for a summary trial . . . . . . . . . . . . . . . . . 79
7
Evidence (Protection of Children) Amendment
Bill 2003
142 Pre-recording of evidence for a trial on indictment . . . . . . . . . . . . . . 79
68 Insertion of new sch 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SCHEDULE 3
DICTIONARY
PART 11--AMENDMENT OF JUSTICES ACT 1886
69 Act amended in pt 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
70 Amendment of s 4 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
71 Insertion of new pt 4, division 1A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Division 1A--Prosecution disclosure
41 Prosecution disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
72 Amendment of s 83A (Direction hearing). . . . . . . . . . . . . . . . . . . . . . . . . . . 80
73 Amendment of s 110A (Use of tendered statements in lieu of oral
testimony in committal proceedings) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
74 Amendment of s 154 (Copies of record) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
75 Replacement of s 222 (Appeal to a single judge) . . . . . . . . . . . . . . . . . . . . . 82
221 Definitions for div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
222 Appeal to a single judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
222A Stay of particular matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
222B Appeal documents must be sent to the relevant registrar ........ 85
222C Contact details and address for service . . . . . . . . . . . . . . . . . . . . . . . 85
222D Duty of relevant registrar to give notice of appeal and
appeal hearing .................................... 86
222E Duty of relevant registrar to give notice when particular issues arise 87
76 Replacement of s 224 (Power to adjourn appeal) . . . . . . . . . . . . . . . . . . . . . 87
224 Powers of judge incidental to appeal . . . . . . . . . . . . . . . . . . . . . . . . . 87
77 Replacement of s 225 (Powers of judge on hearing appeal) . . . . . . . . . . . . . 88
225 Powers of judge on hearing appeal . . . . . . . . . . . . . . . . . . . . . . . . . . 88
78 Amendment of s 228 (Appeal not to be defeated for defect in notice etc. if
amendable) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
79 Insertion of new s 228A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
228A Discontinuance of appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
80 Replacement of s 229 (Failure to prosecute appeal) . . . . . . . . . . . . . . . . . . . 89
229 Appeal may be struck out . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
8
Evidence (Protection of Children) Amendment
Bill 2003
81 Amendment of s 231 (Enforcement of decision) . . . . . . . . . . . . . . . . . . . . . 90
82 Omission of s 241 (Absconding appellant may be arrested). . . . . . . . . . . . . 90
83 Insertion of new pt 11, div 1 hdg. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
84 Insertion of new pt 11, div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Division 2--Evidence (Protection of Children) Amendment Act 2003
273 Previous recognisance to appear on appeal hearing . . . . . . . . . . . . . 91
2003
A BILL
FOR
An Act to amend the criminal law, and for other purposes
s1 10 s4
Evidence (Protection of Children) Amendment
Bill 2003
The Parliament of Queensland enacts-- 1
PART 1--PRELIMINARY 2
1 Short title
Clause 3
This Act may be cited as the Evidence (Protection of Children) 4
Amendment Act 2003. 5
2 Commencement
Clause 6
This Act commences on a day to be fixed by proclamation. 7
PART 2--AMENDMENT OF BAIL ACT 1980 8
3 Act amended in pt 2
Clause 9
This part amends the Bail Act 1980. 10
4 Amendment of s 8 (Power of court as to bail)
Clause 11
Section 8(1)(a)-- 12
insert-- 13
`(ia) the court is a Magistrates Court and the person is awaiting 14
an appeal under the Justices Act 1886, section 2221 to be 15
held in the District Court; or'. 16
1 Justices Act 1886, section 222 (Appeal to a single judge)
s5 11 s8
Evidence (Protection of Children) Amendment
Bill 2003
PART 3--AMENDMENT OF CHILDRENS COURT ACT 1
1992 2
5 Act amended in pt 3
Clause 3
This part amends the Childrens Court Act 1992. 4
6 Amendment of s 20 (Who may be present at a proceeding)
Clause 5
(1) Section 20(2)(b), after `court;'-- 6
insert-- 7
`or'. 8
(2) Section 20(2)-- 9
insert-- 10
`(d) in a criminal proceeding--a person who, in the court's opinion, 11
has a proper interest in the proceeding and whose presence, in the 12
court's opinion, would not be prejudicial to the interests of the 13
child.'. 14
PART 4--AMENDMENT OF COMMISSION FOR 15
CHILDREN AND YOUNG PEOPLE ACT 2000 16
7 Act amended in pt 4
Clause 17
This part amends the Commission for Children and Young People 18
Act 2000. 19
8 Insertion of new s 122A
Clause 20
After section 122-- 21
insert-- 22
s9 12 s 10
Evidence (Protection of Children) Amendment
Bill 2003
`122A Notice of change in criminal history 1
`(1) If the police commissioner reasonably suspects that a person who is 2
charged with an offence is a person mentioned in section 122(1)(a) to (c), 3
the police commissioner may notify the commissioner about the change in 4
the person's criminal history. 5
`(2) The notice must state the following-- 6
(a) the person's name and address; 7
(b) the person's date of birth; 8
(c) the offence the person was charged with; 9
(d) particulars of the offence; 10
(e) the date of the charge. 11
`(3) The commissioner may confirm the police commissioner's 12
suspicions under subsection (1). 13
`(4) If the person is a person to whom section 112(1), 113(1) or 114(1) 14
applies, the commissioner, on receiving notice under subsection (1), may 15
write to the person to inform the person of the person's obligations under 16
sections 112(2), 113(2) and 114(2).2'. 17
PART 5--AMENDMENT OF CRIMINAL CODE 18
9 Code amended in pt 5
Clause 19
This part amends the Criminal Code. 20
10 Amendment of s 1 (Definitions)
Clause 21
Section 1-- 22
insert-- 23
2 Section 112 (Change in criminal history of employee), 113 (Change in criminal
history of person carrying on regulated business) or 114 (Change in criminal history
of other persons)
s 11 13 s 11
Evidence (Protection of Children) Amendment
Bill 2003
`"affected child", for chapter 62, chapter division 3,3 see section 590AD. 1
"arresting officer", for chapter 62, chapter division 3, see section 590AD. 2
"carnal knowledge" see section 6. 3
"court", for chapter 62, chapter division 3, see section 590AD. 4
"criminal history", for chapter 62, chapter division 3, see section 590AD. 5
"disclose", for chapter 62, chapter division 3, see section 590AD. 6
"exculpatory thing", for chapter 62, chapter division 3, see section 7
590AD. 8
"offence" see section 2. 9
"original evidence", for chapter 62, chapter division 3, see section 10
590AD. 11
"possession of the prosecution", for chapter 62, chapter division 3, see 12
section 590AE. 13
"prescribed summary trial", for chapter 62, chapter division 3, see 14
section 590AD. 15
"prosecution", for chapter 62, chapter division 3, see section 590AD. 16
"relevant proceeding", for chapter 62, chapter division 3, see 17
section 590AD. 18
"sensitive evidence", for chapter 62, chapter division 3, see 19
section 590AF. 20
"spent conviction", for chapter 62, chapter division 3, see section 590AD. 21
"statement", for chapter 62, chapter division 3, see section 590AD. 22
"the offender cannot be arrested without warrant" see section 5(3). 23
"the offender may be arrested without warrant" see section 5(1).'. 24
11 Amendment of s 349 (Rape)
Clause 25
Section 349-- 26
insert-- 27
3 Chapter 62 (Trial--Adjournment--Pleas--Practice), chapter division 3 (Disclosure
by the prosecution)
s 12 14 s 14
Evidence (Protection of Children) Amendment
Bill 2003
`(3) For this section, a child under the age of 12 years is incapable of 1
giving consent.'. 2
12 Amendment of s 354A (Kidnapping for ransom)
Clause 3
Section 354A(5)-- 4
omit. 5
13 Insertion of new s 560A
Clause 6
After section 560-- 7
insert-- 8
`560A Place where indictment is presented 9
`(1) An indictment may be presented to the court at the place of trial 10
named in the margin of the indictment (the "place of trial") or at another 11
place. 12
`(2) If an indictment is presented to the court at a place other than the 13
place of trial-- 14
(a) the indictment is taken to have been presented to the court at the 15
place of trial; and 16
(b) anything that may be done by, or in relation to, the court at the 17
place of trial may also be done by, or in relation to, the court at 18
the other place; and 19
20
Example--
21
An application under section 590AA may be made to, and dealt with by,
22
the court at the other place or at the place of trial.
(c) as soon as practicable after the indictment is presented, the 23
proper officer of the court at the other place must transfer the 24
indictment to the court at the place of trial.'. 25
14 Insertion of new ch 62, ch div 1, hdg
Clause 26
Before section 590-- 27
insert-- 28
`Chapter division 1--Bringing accused person to trial'. 29
s 15 15 s 15
Evidence (Protection of Children) Amendment
Bill 2003
15 Insertion of new ch 62, ch div 2 hdg, ch div 3 and
Clause 1
ch div 4, hdg 2
After section 590-- 3
insert-- 4
`Chapter division 2--Directions and rulings before trial 5
`Chapter division 3--Disclosure by the prosecution 6
`Chapter subdivision A--Preliminary provisions 7
`590AB Disclosure obligation 8
`(1) This chapter division acknowledges that it is a fundamental 9
obligation of the prosecution to ensure criminal proceedings are conducted 10
fairly with the single aim of determining and establishing truth. 11
`(2) Without limiting the scope of the obligation, in relation to disclosure 12
in a relevant proceeding, the obligation includes an ongoing obligation for 13
the prosecution to give an accused person full and early disclosure of-- 14
(a) all evidence the prosecution proposes to rely on in the 15
proceeding; and 16
(b) all things in the possession of the prosecution, other than things 17
the disclosure of which would be unlawful or contrary to public 18
interest, that would tend to help the case for the accused person. 19
`590AC Chapter division does not have particular consequences 20
`(1) Nothing in this chapter division-- 21
(a) requires the disclosure of a thing it is unlawful to disclose under 22
this or another law; or 23
(b) affects an accused person's right to a thing under another law. 24
`(2) Failure to comply with this chapter division in a proceeding does not 25
affect the validity of the proceeding. 26
s 15 16 s 15
Evidence (Protection of Children) Amendment
Bill 2003
`Chapter Subdivision B--Interpretation 1
`590AD Definitions for ch div 3 2
`In this chapter division-- 3
"affected child" see the Evidence Act 1977, section 21AC. 4
4
"arresting officer", for a person charged with an offence, means-- 5
(a) the police officer who arrested the person or, if the person was 6
not arrested, the police officer who brought the charge against the 7
person; or 8
(b) at any time the person mentioned in paragraph (a) is unavailable, 9
another police officer the police commissioner, or a delegate of 10
the police commissioner, designates as the arresting officer for 11
the person. 12
"court" means the court for the relevant proceeding. 13
"criminal history" of a person includes every finding of guilt, or 14
acceptance of a plea of guilty, whether or not a conviction was 15
recorded, other than a spent conviction. 16
"disclose" a thing, other than particulars, means disclose the thing by-- 17
(a) giving a copy of the thing or a written notice about the thing as 18
required under section 590AH; or 19
(b) giving a copy of a thing or notice about the thing as required 20
under section 590AJ; or 21
4 Evidence Act 1977, section 21AC--
"affected child" means a child (defined) who is a witness in a relevant proceeding and
who is not a defendant in the proceeding.
"relevant offence", in relation to a proceeding, means--
(a) an offence of a sexual nature (defined); or
(b) an offence involving violence (defined), if there is a prescribed relationship
between a child who is a witness in the proceeding and a defendant in the
proceeding.
"relevant proceeding" means a criminal proceeding for a relevant offence, whether or not
the proceeding also relates to other offences.
s 15 17 s 15
Evidence (Protection of Children) Amendment
Bill 2003
(c) giving a written notice about the thing under section 590AO.5 1
"disclose" particulars means disclose the particulars by giving the 2
particulars as required under section 590AJ. 3
"exculpatory thing", in relation to an accused person, means reliable 4
evidence of a nature to cause a jury to entertain a reasonable doubt as 5
to the guilt of the accused person. 6
"original evidence" means a thing that may be tendered as an exhibit in a 7
relevant proceeding. 8
"possession of the prosecution" see section 590AE. 9
"prescribed summary trial" means a summary trial of an offence 10
prescribed under a regulation for this definition. 11
"prosecution" means the person in charge of the prosecution or a person 12
appearing for the prosecution. 13
"relevant proceeding" means-- 14
(a) a committal proceeding; or 15
(b) a prescribed summary trial; or 16
(c) a trial on indictment. 17
"sensitive evidence" see section 590AF. 18
"spent conviction" means a conviction-- 19
(a) for which the rehabilitation period under the Criminal Law 20
(Rehabilitation of Offenders) Act 1986 has expired under that 21
Act; and 22
(b) that is not revived as prescribed by section 11 of that Act.6 23
"statement" of a person means-- 24
(a) a statement signed by the person; or 25
5 Section 590AH (Disclosure that must always be made), 590AJ (Disclosure that must
be made on request) or 590AO (Limit on disclosure of sensitive evidence)
6 Criminal Law (Rehabilitation of Offenders) Act 1986, section 11 (Revival of
convictions)
s 15 18 s 15
Evidence (Protection of Children) Amendment
Bill 2003
(b) a statement of the person that is potentially admissible under the 1
Evidence Act 1977, section 93A;7 or 2
(c) any other representation of fact, whether in words or otherwise, 3
made by the person. 4
`590AE Meaning of "possession of the prosecution" 5
`(1) For a relevant proceeding, a thing is in the "possession of the 6
prosecution" only if the thing is in the possession of the prosecution under 7
subsection (2) or (3). 8
`(2) A thing is in the possession of the prosecution if it is in the 9
possession of the arresting officer or a person appearing for the 10
prosecution. 11
`(3) A thing is also in the possession of the prosecution if-- 12
(a) the thing is in the possession of-- 13
(i) for a prosecution conducted by the director of public 14
prosecutions--the director; or 15
(ii) for a prosecution conducted by the police service--the 16
police service; and 17
(b) the arresting officer or a person appearing for the prosecution-- 18
(i) is aware of the existence of the thing; and 19
(ii) is, or would be, able to locate the thing without 20
unreasonable effort. 21
`590AF Meaning of "sensitive evidence" 22
`"Sensitive evidence" means anything containing or displaying an 23
image of a person (the "imaged person")-- 24
(a) that, disregarding the fact the thing was brought into existence, or 25
is in the possession of the prosecution, for the purpose of 26
providing evidence of an offence, is obscene or indecent; or 27
7 Evidence Act 1977, section 93A (Statement made before proceeding by child or
intellectually impaired person)
s 15 19 s 15
Evidence (Protection of Children) Amendment
Bill 2003
(b) the disclosure of which to another person, without the imaged 1
person's consent, would interfere with the imaged person's 2
privacy. 3
4
Examples--
5
· a computer hard drive containing obscene or indecent images
6
· a photo of a naked rape victim taken to preserve evidence of the victim's condition
7
at a particular time
`590AG Particular references to an accused person include references 8
to a lawyer acting for the accused person 9
`(1) A reference in this chapter division to giving or disclosing a thing to 10
an accused person includes a reference to giving or disclosing the thing to a 11
lawyer acting for the accused person. 12
`(2) A reference in this chapter division to an accused person viewing a 13
thing includes a reference to a lawyer acting for the accused person 14
viewing the thing. 15
`Chapter subdivision C--Disclosure 16
`590AH Disclosure that must always be made 17
`(1) This section applies-- 18
(a) without limiting the prosecution's obligation mentioned in 19
section 590AB(1); and 20
(b) subject to section 590AC(1)(a) and chapter subdivision D.8 21
`(2) For a relevant proceeding, the prosecution must give the accused 22
person each of the following things-- 23
(a) a copy of the bench charge sheet, complaint or indictment 24
containing the charge against the person; 25
(b) the following things in relation to the accused person-- 26
8 Sections 590AB (Disclosure obligation) and 590AC (Chapter division does not have
particular consequences) and chapter subdivision D (Limitations on disclosure)
s 15 20 s 15
Evidence (Protection of Children) Amendment
Bill 2003
(i) a copy of the accused person's criminal history in the 1
possession of the prosecution; 2
(ii) a copy of any statement of the accused person in the 3
possession of the prosecution; 4
(c) the following things in relation to witnesses-- 5
(i) for each proposed witness for the prosecution-- 6
(A) a copy of any statement of the witness in the 7
possession of the prosecution; or 8
9
Example--
10
a statement made by a proposed witness for the prosecution in an
11
audio recording of an interview
(B) if there is no statement of the witness in the possession 12
of the prosecution--a written notice naming the 13
witness; 14
(ii) for each proposed witness for the prosecution who is, or 15
may be, an affected child--a written notice naming the 16
witness and describing why the proposed witness is, or may 17
be, an affected child; 18
(iii) if the prosecution intends to adduce evidence of a 19
representation under the Evidence Act 1977, section 93B,9 a 20
written notice stating that intention and the matters 21
mentioned in section 590C(2)(b) to (d);10 22
(d) the following things in relation to tests or forensic procedures-- 23
(i) a copy of any report of any test or forensic procedure 24
relevant to the proceeding in the possession of the 25
prosecution; 26
27
Example of a forensic procedure--
28
DNA, fingerprint or another scientific identification procedure
(ii) a written notice describing any test or forensic procedure, 29
including a test or forensic procedure that is not yet 30
9 Evidence Act 1977, section 93B (Admissibility of representation in prescribed
criminal proceedings if person who made it is unavailable)
10 Section 590C (Advance notice of representation if person who made it is
unavailable)
s 15 21 s 15
Evidence (Protection of Children) Amendment
Bill 2003
completed, on which the prosecution intends to rely at the 1
proceeding; 2
(e) a written notice describing any original evidence on which the 3
prosecution intends to rely at the proceeding; 4
(f) a copy of any other thing on which the prosecution intends to 5
rely at the proceeding; 6
(g) a written notice or copy of any thing else in the possession of the 7
prosecution prescribed under a regulation. 8
`590AI When mandatory disclosure must be made 9
`(1) This section applies if-- 10
(a) the prosecution must give an accused person a written notice or 11
copy of a thing under section 590AH(2); or 12
(b) the prosecution must give an accused person a written notice of a 13
thing under 590AO(2) and, apart from section 590AO, the 14
prosecution would have to give the accused person a copy of the 15
thing under section 590AH(2). 16
`(2) The prosecution must give the accused person the written notice or 17
copy-- 18
(a) for a committal proceeding or prescribed summary trial--at least 19
14 days before evidence starts to be heard at the relevant 20
proceeding; or 21
(b) for a trial on indictment--no more than 28 days after 22
presentation of the indictment, or if the trial starts less than 23
28 days after presentation of the indictment, before evidence 24
starts to be heard at the trial. 25
`(3) Subsection (2) is not intended to discourage the prosecution from 26
voluntarily giving the accused person the written notice or copy at a time 27
before the latest time the subsection may be complied with. 28
`(4) The court may, at any time, shorten the period mentioned in 29
subsection (2)(a) or extend the period mentioned in subsection (2)(b). 30
`590AJ Disclosure that must be made on request 31
`(1) This section applies-- 32
s 15 22 s 15
Evidence (Protection of Children) Amendment
Bill 2003
(a) without limiting the prosecution's obligation mentioned in 1
section 590AB(1); and 2
(b) subject to section 590AC(1)(a) and chapter subdivision D.11 3
`(2) For a relevant proceeding, the prosecution must, on request, give the 4
accused person-- 5
(a) particulars if a proposed witness for the prosecution is, or may 6
be, an affected child; and 7
(b) a copy of the criminal history of a proposed witness for the 8
prosecution in the possession of the prosecution; and 9
(c) a copy or notice of any thing in the possession of the prosecution 10
that may reasonably be considered to be adverse to the reliability 11
or credibility of a proposed witness for the prosecution; and 12
(d) notice of any thing in the possession of the prosecution that may 13
tend to raise an issue about the competence of a proposed witness 14
for the prosecution to give evidence in the proceeding; and 15
(e) a copy of any statement of any person relevant to the proceeding 16
and in the possession of the prosecution but on which the 17
prosecution does not intend to rely at the proceeding; and 18
(f) a copy or notice of any other thing in the possession of the 19
prosecution that is relevant to the proceeding but on which the 20
prosecution does not intend to rely at the proceeding. 21
`(3) If the prosecution gives notice of a thing under subsection (2) that is 22
not original evidence, the prosecution must advise the accused person that 23
the thing may be viewed on request by the accused person at a stated place. 24
`(4) In this section-- 25
"particulars" means particulars of a matter alleged in the bench charge 26
sheet, complaint or indictment containing the charge against the 27
accused person. 28
`590AK When requested disclosure must be made 29
`(1) This section applies if-- 30
11 Sections 590AB (Disclosure obligation) and 590AC (Chapter division does not have
particular consequences) and chapter subdivision D (Limitations on disclosure)
s 15 23 s 15
Evidence (Protection of Children) Amendment
Bill 2003
(a) an accused person requests particulars or a copy or notice of a 1
thing under section 590AJ(2);12 and 2
(b) either-- 3
(i) the prosecution must give the accused person particulars or 4
a copy or notice of the thing under section 590AJ(2); or 5
(ii) the prosecution must give the accused person written notice 6
of a thing under 590AO(2) and, apart from section 590AO, 7
the prosecution would have to give the accused person a 8
copy of the thing under section 590AJ(2). 9
`(2) The prosecution must give the accused person the particulars, copy 10
or notice as soon as practicable after the request is made. 11
`590AL Ongoing obligation to disclose 12
`(1) If the prosecution can not comply with a time requirement because 13
the thing to be disclosed was not in the possession of the prosecution in 14
sufficient time, including, for example, because the thing did not exist at 15
the time, the prosecution must disclose the thing to the accused person as 16
soon as practicable after it comes into the possession of the prosecution. 17
`(2) The obligation to disclose a thing, other than an exculpatory thing, 18
to the accused person continues despite a failure to comply with a time 19
requirement or subsection (1) until the prosecution ends, whether by the 20
accused person being discharged, acquitted or convicted, or in another way. 21
`(3) If a thing is an exculpatory thing, the obligation to disclose it to the 22
accused person continues despite a failure to comply with a time 23
requirement or subsection (1) until 1 of the following happens-- 24
(a) the accused person is discharged or acquitted; 25
(b) the accused person dies. 26
`(4) In this section-- 27
"time requirement" means a requirement under section 590AI or 28
590AK.13 29
12 Section 590AJ (Disclosure that must be made on request)
13 Section 590AI (When mandatory disclosure must be made) or 590AK (When
requested disclosure must be made)
s 15 24 s 15
Evidence (Protection of Children) Amendment
Bill 2003
`590AM How disclosure may be made 1
`(1) If a written notice or copy of a thing must or may be given to the 2
accused person under this chapter division, it is sufficient for-- 3
(a) a document advising that the written notice or copy of the thing 4
is available for collection at a stated place to be served on the 5
accused person-- 6
(i) if a lawyer acts for the accused person--at the lawyer's 7
address for service; or 8
(ii) otherwise--at the accused person's place of business, or 9
residential address, last known to the prosecution; and 10
(b) the written notice or copy of the thing to be available for 11
collection at the stated place. 12
`(2) If notice of a thing must or may be given to the accused person 13
under this chapter division, it is sufficient for notice to be given in a way 14
the prosecution considers appropriate. 15
16
Example--
17
If the prosecution considers it appropriate, notice may be given by phone to the lawyer
18
acting for the accused person or in writing made available under subsection (1).
`Chapter subdivision D--Limitations on disclosure 19
`590AN Limit on disclosure of things accused person already has 20
`The prosecution is not, for a relevant proceeding, required under this 21
chapter division to give the accused person any thing the accused person or 22
a lawyer acting for the accused person already possesses or has already 23
been given by the prosecution. 24
25
Example--
26
The prosecution is not required to give the accused person a copy of a complaint or
27
indictment already given to the accused person or a copy of depositions already given
28
to the accused person under section 705.
`590AO Limit on disclosure of sensitive evidence 29
`(1) The prosecution is not, for a relevant proceeding, required under this 30
chapter division to give the accused person a copy of a thing the 31
s 15 25 s 15
Evidence (Protection of Children) Amendment
Bill 2003
prosecution reasonably considers to be sensitive evidence other than as 1
required under this section. 2
`(2) If-- 3
(a) apart from this section, the prosecution would have to give the 4
accused person a copy of the thing; and 5
(b) the prosecution does not give the accused person a copy of the 6
thing; 7
then the prosecution must give the accused person a written notice-- 8
(c) describing the thing; and 9
(d) stating that the prosecution-- 10
(i) considers the thing to be sensitive evidence; and 11
(ii) is not required to give the accused person a copy of the thing 12
other than as required under this section; and 13
(e) if the thing is not original evidence, stating the place where the 14
accused person may, on request, view the thing for the purposes 15
of the relevant proceeding; and 16
(f) if the thing is original evidence, stating that the prosecution may, 17
on request, allow an appropriate person to view and examine the 18
thing for the purposes of the relevant proceeding at a stated 19
place-- 20
(i) under the supervision of the prosecution; and 21
(ii) subject to any other conditions the prosecution considers 22
appropriate to ensure-- 23
(A) there is no unauthorised reproduction or circulation of 24
the thing; and 25
(B) the integrity of the thing is protected. 26
`(3) If the thing is original evidence, the court may direct that the 27
prosecution allow an appropriate person to view and examine the thing for 28
the purposes of the proceeding subject to the conditions the court considers 29
appropriate. 30
`(4) The court may make the direction under subsection (3) only if the 31
court is satisfied the terms of the direction can ensure-- 32
s 15 26 s 15
Evidence (Protection of Children) Amendment
Bill 2003
(a) there is no unauthorised reproduction or circulation of the thing; 1
and 2
(b) the integrity of the thing is protected. 3
`(5) Also, the court may direct that the prosecution give the accused 4
person a copy of the thing (whether or not the thing is original evidence). 5
`(6) The court may make the direction under subsection (5) only if-- 6
(a) the accused person satisfies the court a legitimate purpose is 7
achieved by the accused person being given a copy of the thing; 8
and 9
(b) the court is satisfied the terms of the direction can ensure there is 10
no unauthorised reproduction or circulation of the thing. 11
`(7) In this section-- 12
"appropriate person" means-- 13
(a) the accused person; or 14
(b) a lawyer acting for the accused person; or 15
(c) another person engaged by the accused person if the prosecution 16
or court considers it is appropriate for the other person to view or 17
examine the thing. 18
`590AP Limit on disclosure of witness contact details 19
`(1) The prosecution is not, for a relevant proceeding, required under this 20
chapter division to give the accused person a witness contact detail other 21
than as required under this section. 22
`(2) The prosecution must give the accused person a witness contact 23
detail that is materially relevant as part of the evidence for the relevant 24
proceeding. 25
26
Example 1--
27
If the alleged offence is breaking and entering a dwelling and a proposed witness was
28
the occupant of the dwelling when the offence allegedly happened, the address of the
29
proposed witness when the offence allegedly happened would be materially relevant as
30
part of the evidence.
s 15 27 s 15
Evidence (Protection of Children) Amendment
Bill 2003
1
Example 2--
2
If the alleged offence is unlawful stalking involving contacting the stalked person by
3
telephone, the telephone number of the stalked person when the offence allegedly
4
happened would be materially relevant as part of the evidence.
`(3) However, the court may direct that another witness contact detail be 5
given to the accused person. 6
`(4) The court may make the direction only if-- 7
(a) the accused person satisfies the court a legitimate purpose is 8
achieved by the witness contact detail being given to the accused 9
person; and 10
(b) the court is satisfied that giving the detail is not likely to present a 11
reasonably ascertainable risk to the welfare or protection of any 12
person. 13
`(5) A witness contact detail the prosecution is not required to give the 14
accused person may be deleted from, or rendered illegible in, a thing that is 15
to be disclosed to, or may be viewed by, the accused person. 16
`(6) Although it is acknowledged that a person is not obliged to have 17
contact with the defence, nothing in this section is intended to discourage 18
the prosecution, at the request of the defence, from voluntarily passing on 19
to a person a request from the defence that the person contact the defence. 20
`(7) In this section-- 21
"witness contact details" include details of the address and telephone 22
and facsimile number of a proposed witness for the prosecution or a person 23
a copy of whose statement may be given to the accused person under 24
section 590AJ(2)(e).14 25
`590AQ Limit on disclosure contrary to the public interest 26
`(1) The prosecution is not, for a relevant proceeding, required under this 27
chapter division to disclose to the accused person a thing, other than as 28
required under this section, if the prosecution-- 29
(a) considers the disclosure would be contrary to the public interest; 30
and 31
14 Section 590AJ (Disclosure that must be made on request)
s 15 28 s 15
Evidence (Protection of Children) Amendment
Bill 2003
(b) gives the accused person a written notice stating that the 1
prosecution-- 2
(i) considers the disclosure would be contrary to the public 3
interest; and 4
(ii) is not required to disclose the thing to the accused person 5
other than as required under this section. 6
`(2) Without limiting subsection (1)(a), the prosecution is not required to 7
disclose the thing to the accused person if-- 8
(a) there are reasonable grounds for considering disclosure of the 9
thing would-- 10
(i) prejudice the security, defence or international relations of 11
Australia; or 12
(ii) damage relations between the Commonwealth and a State 13
or between 2 or more States; or 14
(iii) facilitate the commission of another offence; or 15
(iv) prejudice the prevention, investigation or prosecution of an 16
offence; or 17
(v) prejudice the usefulness of surveillance or other detection 18
methods; or 19
(vi) disclose, or enable a person to find out, the existence or 20
identity of a confidential source of information relating to 21
the enforcement or administration of a law of the 22
Commonwealth or a State; or 23
(vii) cause unlawful or dishonest interference with potential 24
witnesses; or 25
(viii)prejudice the proper functioning of the government of the 26
Commonwealth or a State; or 27
(b) disclosure of the thing to the accused person is prohibited by law. 28
29
Example for paragraph (b)--
30
disclosure of an informer's identity under the Drugs Misuse Act 1986,
31
section 11915
15 Drugs Misuse Act 1986, section 119 (Protection of informers)
s 15 29 s 15
Evidence (Protection of Children) Amendment
Bill 2003
`(3) However, unless disclosure to the accused person of the thing is 1
prohibited by law, the court may direct that the thing be disclosed to the 2
accused person. 3
`(4) The court may make a direction only if the court is satisfied, on 4
balance, that disclosing the thing to the accused person is not contrary to 5
the public interest. 6
`(5) In deciding whether to make a direction, the court may inform itself 7
in any way it considers appropriate. 8
`(6) Without limiting the matters the court may take into account in 9
deciding whether to make a direction, the court must take into account the 10
following matters-- 11
(a) the importance of the thing in the relevant proceeding, including, 12
for example, whether the thing is an exculpatory thing; 13
(b) the nature of the offence; 14
(c) the likely effect of disclosing the thing and how publication of 15
the thing may be limited; 16
(d) whether the substance of the thing has already been published. 17
`(7) In this section-- 18
"State" includes a Territory. 19
`Chapter subdivision E--Viewing 20
`590AR Viewing evidence that is not original evidence 21
`If an accused person is advised under section 590AJ(3) or given written 22
notice under section 590AO(2)(e)16 of a place where the accused person 23
may, on request, view a thing, the prosecution must allow the accused 24
person, on request, to view the thing for the purposes of the relevant 25
proceeding at the place. 26
16 Section 590AJ (Disclosure that must be made on request) or 590AO (Limit on
disclosure of sensitive evidence)
s 15 30 s 15
Evidence (Protection of Children) Amendment
Bill 2003
`590AS Viewing original evidence that is not sensitive evidence 1
`(1) This section applies if a thing that is original evidence and that is not 2
sensitive evidence17 is disclosed to an accused person under section 3
590AH(2)(e) or 590AJ.18 4
`(2) The prosecution is not required to allow the accused person to view 5
or examine the thing for the relevant proceeding other than as required 6
under this section. 7
`(3) The prosecution may, on request, allow an appropriate person to 8
view or examine the thing for the purposes of the relevant proceeding-- 9
(a) under the supervision of the prosecution; and 10
(b) subject to any other conditions the prosecution considers 11
appropriate to protect the integrity of the thing. 12
`(4) Also, the court may direct that the prosecution allow an appropriate 13
person to view and examine the thing for the purposes of the proceeding 14
subject to the conditions the court considers appropriate to protect the 15
integrity of the thing. 16
`(5) The court may make the direction only if the court is satisfied the 17
terms of the direction can ensure the integrity of the thing is protected. 18
`(6) In this section-- 19
"appropriate person" means-- 20
(a) the accused person; or 21
(b) a lawyer acting for the accused person; or 22
(c) another person engaged by the accused person if the prosecution 23
or court considers it is appropriate for the other person to view or 24
examine the thing. 25
17 For viewing of original evidence that is sensitive evidence, see section 590AO(2)(f),
(3) and (4) (Limit on disclosure of sensitive evidence)
18 Section 590AH (Disclosure that must always be made) or 590AJ (Disclosure that
must be made on request)
s 15 31 s 15
Evidence (Protection of Children) Amendment
Bill 2003
`Chapter subdivision F--Miscellaneous provisions 1
`590AT Accused person may waive entitlement 2
`(1) An accused person may waive any or all entitlements the accused 3
person would otherwise have under this chapter division. 4
`(2) The waiver must be in writing and be given to the prosecution. 5
`590AU Court may waive requirement 6
`A court may waive any requirement imposed by this chapter division in 7
relation to a relevant proceeding if it is satisfied there is a good reason for 8
waiving the requirement and that waiving the requirement will not result in 9
a miscarriage of justice. 10
`590AV Disclosure directions 11
`(1) The court may make a disclosure direction on the court's own 12
initiative or on an application made by the accused person. 13
`(2) The court may make a disclosure direction on the conditions, 14
whether about the circumstances of disclosure or otherwise, it considers 15
appropriate. 16
`(3) Without limiting subsection (2), the court may make a disclosure 17
direction on condition that-- 18
(a) partial disclosure only be made; or 19
(b) disclosure only be made to a lawyer acting for the accused 20
person; or 21
(c) particular persons are excluded from the room in which the court 22
is sitting for all or part of the proceedings; or 23
(d) reporting of the proceedings be limited in a particular way. 24
`(4) In this section-- 25
s 15 32 s 15
Evidence (Protection of Children) Amendment
Bill 2003
"disclosure direction" means a direction for a relevant proceeding under 1
section 590AO, 590AP, 590AQ or 590AS.19 2
`590AW When issues about disclosure must be resolved 3
`Any issue about compliance with this chapter division must, if possible, 4
be resolved before evidence starts to be heard at the relevant proceeding. 5
`590AX Unauthorised copying of sensitive evidence 6
`(1) A person in possession of sensitive evidence for the purposes of a 7
relevant proceeding commits an offence if, without authority, the person 8
copies or permits a person to copy the sensitive evidence. 9
Maximum penalty--100 penalty units or 2 years imprisonment. 10
`(2) A person has possession of sensitive evidence for the purposes of a 11
relevant proceeding only if-- 12
(a) the sensitive evidence was given to the person under this chapter 13
division; or 14
(b) the sensitive evidence came into the person's possession directly 15
or incidentally, including by an opportunity given, because the 16
person is a public official. 17
`(3) A person has authority only if the person copies or permits a person 18
to copy sensitive evidence for a legitimate purpose connected with a 19
proceeding. 20
`(4) In this section-- 21
"public official" includes-- 22
(a) a police officer; and 23
(b) a person appointed, engaged or employed under the Director of 24
Public Prosecutions Act 1984. 25
`Chapter division 4--Disclosure by an accused person'. 26
19 Section 590AO (Limit on disclosure of sensitive evidence), 590AP (Limit on
disclosure of witness contact details), 590AQ (Limit on disclosure contrary to the
public interest) or 590AS (Viewing original evidence that is not sensitive evidence)
s 16 33 s 17
Evidence (Protection of Children) Amendment
Bill 2003
16 Amendment of s 590B (Advanced notice of expert evidence)
Clause 1
(1) Section 590B, heading, `Advanced'-- 2
omit, insert-- 3
`Advance'. 4
(2) Section 590B(1), from `If' to `must--'-- 5
omit, insert-- 6
`If an accused person intends to adduce expert evidence in relation to an 7
issue in the person's trial, the person must--'. 8
(3) Section 590B(2), `section 592A20'-- 9
omit, insert-- 10
`section 590AA21'. 11
17 Amendment of s 590C (Advance notice of representation if person
Clause 12
who made it is unavailable) 13
(1) Section 590C(1)-- 14
omit, insert-- 15
`(1) If an accused person intends to adduce evidence of a representation 16
under the Evidence Act 1977, section 93B,22 the accused person must, as 17
soon as practicable before the person's trial date, give each of the other 18
parties to the trial written notice of the person's intention.'. 19
(2) Section 590C(2)(a), `party'-- 20
omit, insert-- 21
`accused person'. 22
(3) Section 590C(3), `section 592A'-- 23
omit, insert-- 24
`section 590AA'. 25
20 Section 592A (Pre-trial directions and rulings)
21 Section 590AA (Pre-trial directions and rulings)
22 Evidence Act 1977, section 93B (Admissibility of representation in prescribed
criminal proceedings if person who made it is unavailable)
s 18 34 s 20
Evidence (Protection of Children) Amendment
Bill 2003
18 Insertion of new ch 62, ch div 5 hdg
Clause 1
After section 590C-- 2
insert-- 3
`Chapter division 5--Bringing on trial and ordering adjournment'. 4
19 Amendment, relocation and renumbering of s 592A (Pre-trial
Clause 5
directions and rulings) 6
(1) Section 592A(1), `trial.'-- 7
omit, insert-- 8
`trial or any pre-trial hearing.'. 9
(2) Section 592A(2)-- 10
insert-- 11
`(ba)the disclosure of a thing under chapter division 3;23 or'. 12
(3) Section 592A(2)(l)-- 13
omit, insert-- 14
`(l) the Evidence Act 1977, part 2, division 4A or 6;24 or'. 15
(4) Section 592A(3), `trial judge'-- 16
omit, insert-- 17
`judge presiding at the trial or pre-trial hearing'. 18
(5) Section 592A-- 19
relocate and renumber, in chapter 62, chapter division 2 as section 20
590AA. 21
20 Relocation and renumbering of s 594 (Accused person to be called
Clause 22
upon to plead to indictment) 23
(1) Section 594, heading, `upon'-- 24
23 Chapter division 3 (Disclosure by the prosecution)
24 Evidence Act 1977, part 2 (Witnesses), division 4A (Evidence of affected children)
or 6 (Cross-examination of protected witnesses)
s 21 35 s 25
Evidence (Protection of Children) Amendment
Bill 2003
omit, insert-- 1
`on'. 2
(2) Section 594, as amended-- 3
relocate and renumber, before section 598, as section 597C. 4
21 Insertion of new ch 62, ch div 6 hdg
Clause 5
Before section 594A-- 6
insert-- 7
`Chapter division 6--Corporation as accused person'. 8
22 Insertion of new ch 62, ch div 7 hdg
Clause 9
Before section 595-- 10
insert-- 11
`Chapter division 7--Applications by accused person about indictment'. 12
23 Insertion of new ch 62, ch div 8 hdg
Clause 13
Before section 597A-- 14
insert-- 15
`Chapter division 8--Separate trials'. 16
24 Insertion of new ch 62, ch div 9 hdg
Clause 17
After section 597A-- 18
insert-- 19
`Chapter division 9--Pleas'. 20
25 Relocation and renumbering of s 606 (Separate trials)
Clause 21
Section 606-- 22
relocate and renumber in chapter 62, chapter division 8 as section 597B. 23
s 26 36 s 30
Evidence (Protection of Children) Amendment
Bill 2003
26 Relocation and renumbering of s 607 (Juries)
Clause 1
Section 607-- 2
renumber and relocate as section 617A. 3
27 Insertion of new ch 62, ch div 10 hdg
Clause 4
Before section 616-- 5
insert-- 6
`Chapter division 10--Appearances and fair conduct'. 7
28 Insertion of new ch 62, ch div 11 hdg
Clause 8
Before section 618-- 9
insert-- 10
`Chapter division 11--Trial of issues'. 11
29 Insertion of new ch 62, ch div 12 hdg
Clause 12
Before section 630-- 13
insert-- 14
`Chapter division 12--Other provisions'. 15
30 Insertion of new s 668A
Clause 16
After section 668-- 17
insert-- 18
`668A Reference by Attorney-General of pre-trial direction or ruling 19
`(1) The Attorney-General may refer to the Court for its consideration 20
and opinion a point of law that has arisen in relation to a direction or ruling 21
under section 590AA25 given by another court as to the conduct of a trial or 22
pre-trial hearing. 23
`(2) If a reference is made-- 24
25 Section 590AA (Pre-trial directions and rulings)
s 31 37 s 32
Evidence (Protection of Children) Amendment
Bill 2003
(a) the Attorney-General must give notice of the reference to the 1
other court and the accused person; and 2
(b) the other court-- 3
(i) must adjourn the trial until the Court has given its opinion 4
on the point; and 5
(ii) may make the other orders it considers appropriate, 6
including an order about remanding the accused person; and 7
(c) the Court must hear argument on the reference-- 8
(i) by the Attorney-General; and 9
(ii) by the accused person if the accused person wishes; and 10
(d) after hearing argument on the reference, the Court-- 11
(i) must consider the point referred and give the 12
Attorney-General its opinion on the point; and 13
(ii) may make the orders it considers appropriate, including the 14
directions or rulings it considers appropriate to give effect to 15
its opinion. 16
`(3) In this section-- 17
"adjourn", for a trial where the accused person has not been called on to 18
plead to the indictment, includes postpone the trial.'. 19
31 Amendment of s 669 (Power to grant new trial)
Clause 20
Section 669-- 21
insert-- 22
`(2) If the Court makes an order for a new trial and the appellant is not 23
granted bail, the order is taken to be a warrant for the appellant's 24
detention under the Corrective Services Act 2000, section 9(1)(a).26'. 25
32 Insertion of new s 708
Clause 26
Chapter 71-- 27
26 Corrective Services Act 2000, section 9 (Authority for admission to corrective
services facility)
s 33 38 s 33
Evidence (Protection of Children) Amendment
Bill 2003
insert-- 1
`708 Regulation-making power 2
`The Governor in Council may make regulations under this Code.'. 3
33 Insertion of new ch 78
Clause 4
After chapter 77-- 5
insert-- 6
`CHAPTER 78--TRANSITIONAL PROVISION FOR 7
EVIDENCE (PROTECTION OF CHILDREN) 8
AMENDMENT ACT 2003 9
`715 Transitional provision for disclosure by the prosecution 10
`Chapter 62, chapter division 3 applies to the following types of
27
11
relevant proceeding, even if the offence concerned was committed before 12
the commencement of this section-- 13
(a) a relevant proceeding started in relation to an offence if the 14
charge against the accused person for the offence was brought 15
after the commencement of this section; 16
(b) a relevant proceeding in relation to an indictment presented after 17
the commencement of this section; 18
(c) a relevant proceeding that is a new trial ordered by the court if 19
the order is made after the commencement of this section.'. 20
27 Chapter 62 (Trial--Adjournment--Pleas--Practice), chapter division 3 (Disclosure
by the prosecution)
s 34 39 s 35
Evidence (Protection of Children) Amendment
Bill 2003
PART 6--AMENDMENT OF CRIMINAL LAW 1
(REHABILITATION OF OFFENDERS) ACT 1986 2
34 Act amended in pt 6
Clause 3
This part amends the Criminal Law (Rehabilitation of Offenders) 4
Act 1986. 5
35 Amendment of s 9A (Disclosure of particulars in special cases)
Clause 6
Section 9A, table-- 7
insert-- 8
`19. An applicant for admission 19. Contraventions of any law,
as a student-at-law under the whether committed in
Barristers' Admission Rules Queensland or elsewhere.
1975.
20. An applicant for admission 20. Contraventions of any law,
as a barrister under the whether committed in
Barristers' Admission Rules Queensland or elsewhere.
1975.
21. An applicant for the consent 21. Contraventions of any law,
of the Solicitors' Board to whether committed in
enter articles of clerkship Queensland or elsewhere.
under the Solicitors'
Admission Rules 1968.
22. An applicant for admission 22. Contraventions of any law,
as a solicitor under the whether committed in
Solicitors' Admission Rules Queensland or elsewhere.
1968.
23. An applicant for 23. Contraventions of any law,
appointment as an associate whether committed in
to a Supreme Court judge or Queensland or elsewhere.'.
a District Court judge.
s 36 40 s 40
Evidence (Protection of Children) Amendment
Bill 2003
PART 7--AMENDMENT OF CRIMINAL LAW (SEXUAL 1
OFFENCES) ACT 1978 2
36 Act amended in pt 7
Clause 3
This part amends the Criminal Law (Sexual Offences) Act 1978. 4
37 Insertion of new pt 1, hdg
Clause 5
Before section 1-- 6
insert-- 7
`PART 1--PRELIMINARY'. 8
38 Insertion of new pt 2, hdg
Clause 9
Before section 4-- 10
insert-- 11
`PART 2--EVIDENCE'. 12
39 Amendment of s 4 (Special rules of evidence concerning sexual
Clause 13
offences) 14
Section 4, heading-- 15
omit, insert-- 16
`4 Special rules limiting particular evidence about sexual offences'. 17
40 Insertion of new s 4A
Clause 18
After section 4-- 19
insert-- 20
`4A Evidence of complaint generally admissible 21
`(1) This section applies in relation to an examination of witnesses, or a 22
trial, in relation to a sexual offence. 23
s 41 41 s 41
Evidence (Protection of Children) Amendment
Bill 2003
`(2) Evidence of how and when any preliminary complaint was made by 1
the complainant about the alleged commission of the offence by the 2
defendant is admissible in evidence, regardless of when the preliminary 3
complaint was made. 4
`(3) Nothing in subsection (2) derogates from the power of the court in a 5
criminal proceeding to exclude evidence if the court is satisfied it would be 6
unfair to the defendant to admit the evidence. 7
`(4) If a defendant is tried by a jury, the judge must not warn or suggest 8
in any way to the jury that the law regards the complainant's evidence to be 9
more reliable or less reliable only because of the length of time before the 10
complainant made a preliminary or other complaint. 11
`(5) Subject to subsection (4), the judge may make any comment to a 12
jury on the complainant's evidence that it is appropriate to make in the 13
interests of justice. 14
`(6) In this section-- 15
"complaint" includes a disclosure. 16
"preliminary complaint" means any complaint other than-- 17
(a) the complainant's first formal witness statement to a police 18
officer given in, or in anticipation of, a criminal proceeding in 19
relation to the alleged offence; or 20
(b) a complaint made after the complaint mentioned in 21
paragraph (a). 22
23
Example--
24
Soon after the alleged commission of a sexual offence, the complainant discloses the
25
alleged commission of the offence to a parent ("complaint 1"). Many years later, the
26
complainant makes a complaint to a secondary school teacher and a school guidance
27
officer ("complaints 2 and 3"). The complainant visits the local police station and
28
makes a complaint to the police officer at the front desk ("complaint 4"). The
29
complainant subsequently attends an appointment with a police officer and gives a
30
formal witness statement to the police officer in anticipation of a criminal proceeding in
31
relation to the alleged offence ("complaint 5"). After a criminal proceeding is begun,
32
the complainant gives a further formal witness statement ("complaint 6").
33
Each of complaints 1 to 4 is a preliminary complaint. Complaints 5 and 6 are not
34
preliminary complaints.'.
41 Insertion of new pt 3, hdg
Clause 35
Before section 5-- 36
s 42 42 s 45
Evidence (Protection of Children) Amendment
Bill 2003
insert-- 1
`PART 3--LIMIT ON PUBLICITY'. 2
42 Insertion of new pt 4, hdg
Clause 3
After section 13-- 4
insert-- 5
`PART 4--TRANSITIONAL PROVISIONS'. 6
43 Insertion of new s 15
Clause 7
After section 14-- 8
insert-- 9
`15 Transitional provision for Evidence (Protection of Children) Act 10
2003 11
`(1) Section 4A28 only applies in relation to an examination of witnesses, 12
or a trial, in relation to a sexual offence, that starts or continues after the 13
commencement of this section. 14
`(2) Subsection (1) applies even if the sexual offence was committed, or 15
the complaint was made, before the commencement of this section.'. 16
PART 8--AMENDMENT OF CRIMINAL PROCEEDS 17
CONFISCATION ACT 2002 18
44 Act amended in pt 8
Clause 19
This part amends the Criminal Proceeds Confiscation Act 2002. 20
45 Amendment of s 38 (Particular orders Supreme Court may make)
Clause 21
Section 38(1)(c) and (d), `judicial registrar'-- 22
28 Section 4A (Evidence of complaint generally admissible)
s 46 43 s 48
Evidence (Protection of Children) Amendment
Bill 2003
omit, insert-- 1
`stated officer of the court'. 2
46 Insertion of new s 38A
Clause 3
Chapter 2, part 3, division 4, subdivision 1, before section 39-- 4
insert-- 5
`38A Meaning of "judicial registrar" for subdiv 1 6
`In this subdivision-- 7
"judicial registrar", for an examination conducted under an examination 8
order, includes an officer of the court other than the judicial registrar 9
mentioned in the order.'. 10
47 Amendment of s 130 (Particular orders Supreme Court may
Clause 11
make) 12
Section 130(c) and (d), `judicial registrar'-- 13
omit, insert-- 14
`stated officer of the court'. 15
48 Insertion of new s 130A
Clause 16
Chapter 3, part 3, division 5, subdivision 1, before section 131-- 17
insert-- 18
`130A Meaning of "judicial registrar" for subdiv 1 19
`In this subdivision-- 20
"judicial registrar", for an examination conducted under an examination 21
order, includes an officer of the court other than the judicial registrar 22
mentioned in the order.'. 23
s 49 44 s 51
Evidence (Protection of Children) Amendment
Bill 2003
PART 9--AMENDMENT OF DIRECTOR OF PUBLIC 1
PROSECUTIONS ACT 1984 2
49 Act amended in pt 9
Clause 3
This part amends the Director of Public Prosecutions Act 1984. 4
50 Amendment of s 10 (Functions of director)
Clause 5
(1) Section 10(2) and (3)-- 6
renumber as section 10(3) and (4). 7
(2) Section 10-- 8
insert-- 9
`(2) If the director, with the Minister's consent, holds an appointment, 10
commission or authority to prosecute offences against the laws of the 11
Commonwealth, the director may, under the terms of the appointment, 12
commission or authority, prepare, institute and conduct-- 13
(a) criminal proceedings for the offences; and 14
(b) proceedings in the Court of Appeal or the High Court of 15
Australia that arise out of the criminal proceedings.'. 16
51 Insertion of new s 24C
Clause 17
After section 24B-- 18
insert-- 19
`24C Disclosures by police officers 20
`(1) This section applies if the director is-- 21
(a) deciding whether to institute a proceeding; or 22
(b) deciding whether to consent to the institution of a proceeding; or 23
(c) is conducting a proceeding. 24
`(2) Police officers investigating alleged offences have a duty to disclose 25
to the director all relevant information, documents or other things obtained 26
during the investigation that might tend to help the case for the prosecution 27
or the case for the accused person. 28
s 52 45 s 54
Evidence (Protection of Children) Amendment
Bill 2003
`(3) The duty of disclosure under subsection (2) continues until 1 of the 1
following happens-- 2
(a) the director decides the accused person will not be prosecuted for 3
the alleged offence; 4
(b) the prosecution ends, whether by the accused person being 5
discharged, acquitted or convicted, or in another way. 6
`(4) Any police officer has a duty to disclose to the director an 7
exculpatory thing until 1 of the following happens-- 8
(a) the accused person is discharged or acquitted; or 9
(b) the accused person dies. 10
`(5) In this section-- 11
"exculpatory thing", in relation to an accused person, means reliable 12
evidence of a nature to cause a jury to entertain a reasonable doubt as 13
to the guilt of the accused person.'. 14
PART 10--AMENDMENT OF EVIDENCE ACT 1977 15
52 Act amended in pt 10
Clause 16
This part amends the Evidence Act 1977. 17
53 Insertion of new s 2A
Clause 18
After section 2-- 19
insert-- 20
`2A Notes in text 21
`A note in the text of this Act is part of the Act.'. 22
54 Amendment of s 3 (Definitions)
Clause 23
(1) Section 3, `In this Act--'-- 24
omit, insert-- 25
s 54 46 s 54
Evidence (Protection of Children) Amendment
Bill 2003
`The dictionary in schedule 3 defines particular words used in this Act.'. 1
(2) Section 3, definitions "court", "proceeding" and "protected 2
witness"-- 3
omit. 4
(3) Section 3-- 5
insert-- 6
` "affected child", for part 2, division 4A, see section 21AC. 7
"affidavit", for part 7, see section 104. 8
"audio link", for part 3A, see section 39C. 9
"audio visual link" means facilities, including closed-circuit television, 10
that enable reasonably contemporaneous and continuous audio and 11
visual communication between persons at different places. 12
"before", for part 3A, see section 39C. 13
"book of account", for part 5, division 6, see section 83. 14
"business", for part 7, see section 104. 15
"child", for part 2, division 4A, see section 21AD. 16
"civil proceedings", for part 3, division 3, see section 35. 17
"controlled operation", for part 2, division 5, see section 21B. 18
"conviction", for part 5, division 5, see section 78. 19
"copy", of a document, see section 4. 20
"corresponding court", for part 3, division 2, see section 25. 21
"counsel", for part 2, division 4A, see section 21AC. 22
"court"-- 23
(a) for part 5, division 5--see section 78; or 24
(b) for part 5, division 6--see section 83; or 25
(c) otherwise--means the court, tribunal, judge, justice, arbitrator, 26
body or person before whom or which a proceeding is held or 27
taken. 28
"court location", for part 3A, see section 39C. 29
"covert operative", for part 2, division 5, see section 21B. 30
s 54 47 s 54
Evidence (Protection of Children) Amendment
Bill 2003
"defendant", for part 2, division 4A, see section 21AC. 1
"examiner", for part 3, division 2, see section 25. 2
"external location", for part 3A, see section 39C. 3
"judicial officer" means a judge, magistrate or justices. 4
"law enforcement agency", for part 2, division 5, see section 21B. 5
"lawfully edited copy", of a video-taped recording of evidence given by a 6
special witness or an affected child, means a copy of the recording 7
that has been edited or otherwise changed under an approval under 8
section 21AZ.29 9
"machine copy", for part 7, see section 104. 10
"offence involving violence", for part 2, division 4A, see section 21AC. 11
"offence of a sexual nature", for part 2, division 4A, see section 21AC. 12
"original document", for part 7, see section 104. 13
"overseas country"-- 14
(a) for part 3, division 3--see section 35; or 15
(b) for part 5, division 3--see section 67. 16
"participating State", for part 3A, see section 39C. 17
"preliminary hearing", for part 2, division 4A, see section 21AC. 18
"prescribed country", for part 3, division 2, see section 25. 19
"presiding judicial officer", for part 2, division 4B, see section 21AY. 20
"proceeding"-- 21
(a) for part 2, division 4A--see section 21AC; or 22
(b) otherwise--means any civil, criminal or other proceeding or 23
inquiry, reference or examination in which by law or by consent 24
of parties evidence is or may be given, and includes an 25
arbitration. 26
"protected witness"-- 27
(a) for part 2, division 5--see section 21F; or 28
(b) for part 2, division 6--see section 21M. 29
29 Section 21AZ (Approval to edit or otherwise change a recording)
s 55 48 s 55
Evidence (Protection of Children) Amendment
Bill 2003
"Queensland court", for part 3A, see section 39C. 1
"recognised court", for part 3A, see section 39C. 2
"recording", for part 2, division 4B, see section 21AY. 3
"relevant entity", for part 2, division 5, see section 21B. 4
"relevant offence", for part 2, division 4A, see section 21AC. 5
"relevant proceeding"-- 6
(a) for part 2, division 4A, see section 21AC; or 7
(b) for part 2, division 5, see section 21B. 8
"reproduce", for part 7, see section 104. 9
"reproduction", for part 7, see section 104. 10
"request", for part 3, division 3, see section 35. 11
"requesting court", for part 3, division 3, see section 36. 12
"special witness" see section 21A. 13
"statute", for part 5, division 3, see section 67. 14
"transparency", for part 7, see section 104. 15
"tribunal", for part 3A, see section 39C. 16
"video-taped" means recorded as a video-taped recording. 17
"video-taped recording" means a recording, including the accompanying 18
sound track, on any medium from which a moving image may be 19
produced by any means.'. 20
(4) Section 3, definitions, as amended-- 21
relocate to schedule 3 as inserted by this part. 22
55 Amendment of s 4 (Meaning of "copy" of document etc.)
Clause 23
Section 4(a), `section 3'-- 24
omit, insert-- 25
`schedule 3'. 26
s 56 49 s 57
Evidence (Protection of Children) Amendment
Bill 2003
56 Amendment of s 8 (Witnesses in a criminal proceeding)
Clause 1
Section 8(2) to (7)-- 2
omit, insert-- 3
`(2) The husband or wife of an accused person in a criminal proceeding 4
is competent and compellable to give evidence in the proceeding in any 5
court, either for the prosecution or for the defence, and without the consent 6
of the accused. 7
`(3) In a criminal proceeding, a husband or wife is competent and 8
compellable to disclose communications made between the husband and 9
the wife during the marriage.'. 10
57 Replacement of ss 9 and 9A
Clause 11
Sections 9 and 9A-- 12
omit, insert-- 13
`Division 1A--Competency of witnesses and capacity to be sworn 14
`9 Presumption as to competency 15
`(1) Every person, including a child, is presumed to be-- 16
(a) competent to give evidence in a proceeding; and 17
(b) competent to give evidence in a proceeding on oath. 18
`(2) Subsection (1) is subject to this division. 19
`9A Competency to give evidence 20
`(1) This section applies if, in a particular case, an issue is raised, by a 21
party to the proceeding or the court, about the competency of a person 22
called as a witness in the proceeding to give evidence. 23
`(2) The person is competent to give evidence in the proceeding if, in the 24
court's opinion, the person is able to give an intelligible account of events 25
which he or she has observed or experienced. 26
`(3) Subsection (2) applies even though the evidence is not given on 27
oath. 28
s 57 50 s 57
Evidence (Protection of Children) Amendment
Bill 2003
`9B Competency to give sworn evidence 1
`(1) This section applies if, in a particular case, an issue is raised, by a 2
party to the proceeding or the court, about the competency of a person 3
called as a witness in the proceeding to give evidence on oath. 4
`(2) The person is competent to give evidence in the proceeding on oath 5
if, in the court's opinion, the person understands that-- 6
(a) the giving of evidence is a serious matter; and 7
(b) in giving evidence, he or she has an obligation to tell the truth 8
that is over and above the ordinary duty to tell the truth. 9
`(3) If the person is competent to give evidence in the proceeding but is 10
not competent to give the evidence on oath, the court must explain to the 11
person the duty of speaking the truth. 12
13
Note--
14
The Oaths Act 1867, section 17, makes provision for a person called as a witness to
15
make his or her solemn affirmation instead of being sworn.
`9C Expert evidence about witness's ability to give evidence 16
`(1) This section applies to a proceeding if-- 17
(a) under section 9A, the court is deciding whether a person is able 18
to give an intelligible account of events which he or she has 19
observed or experienced; or 20
(b) under section 9B, the court is deciding whether a person 21
understands the matters mentioned in section 9B(2)(a) and (b); or 22
(c) the evidence of a child under 12 years is admitted. 23
`(2) Expert evidence is admissible in the proceeding about the person's 24
or child's level of intelligence, including the person's or child's powers of 25
perception, memory and expression, or another matter relevant to the 26
person's or child's competence to give evidence, competence to give 27
evidence on oath, or ability to give reliable evidence. 28
`9D Evidence admitted under s 9A 29
`(1) Evidence admitted under section 9A that is written down as a 30
deposition is taken to be a deposition for all purposes. 31
`(2) If evidence is admitted under section 9A-- 32
s 58 51 s 59
Evidence (Protection of Children) Amendment
Bill 2003
(a) the probative value of the evidence is not decreased only because 1
the evidence is not given on oath; and 2
(b) a person charged with an offence may be convicted on the 3
evidence; and 4
(c) the person giving the evidence is liable to be convicted of perjury 5
to the same extent as if the person had given the evidence on 6
oath. 7
`Division 1B--Special provisions for child witnesses 8
`9E Principles for dealing with a child witness 9
`(1) Because a child tends to be vulnerable in dealings with a person in 10
authority, it is the Parliament's intention that a child who is a witness in a 11
proceeding should be given the benefit of special measures when giving the 12
child's evidence. 13
`(2) The following general principles apply when dealing with a child 14
witness in a proceeding-- 15
(a) the child is to be treated with dignity, respect and compassion; 16
(b) measures should be taken to limit, to the greatest practical extent, 17
the distress or trauma suffered by the child when giving 18
evidence; 19
(c) the child should not be intimidated in cross-examination; 20
(d) the proceeding should be resolved as quickly as possible. 21
`(3) In this section-- 22
"child" means a child under 16 years.'. 23
58 Omission of s 11 (Communications to husband or wife)
Clause 24
Section 11-- 25
omit. 26
59 Amendment of s 21A (Evidence of special witnesses)
Clause 27
(1) Section 21A(1), definition "special witness", paragraph (a)-- 28
s 59 52 s 59
Evidence (Protection of Children) Amendment
Bill 2003
omit, insert-- 1
`(a) a child under 16 years; or'. 2
(2) Section 21A(1A)-- 3
renumber as section 21(1B). 4
(3) Section 21A-- 5
insert-- 6
`(1A) This section does not apply to a child to the extent division 4A30 7
applies to the child.'. 8
(4) Section 21A(2)(e), `videotape'-- 9
omit, insert-- 10
`video-taped recording'. 11
(5) Section 21A(2)(f), from `including'-- 12
omit, insert-- 13
`including, for example, any of the following-- 14
(i) a direction about rest breaks for the special witness; 15
(ii) a direction that questions for the special witness be kept 16
simple; 17
(iii) a direction that questions for the special witness be limited 18
by time; 19
(iv) a direction that the number of questions for a special 20
witness on a particular issue be limited.'. 21
(6) Section 21A(3)-- 22
omit. 23
(7) Section 21A(5) and (5A), `videotape'-- 24
omit, insert-- 25
`video-taped recording'. 26
(8) Section 21A(6)-- 27
omit, insert-- 28
30 Division 4A (Evidence of affected children)
s 60 53 s 60
Evidence (Protection of Children) Amendment
Bill 2003
`(6) A video-taped recording under this section of evidence given by a 1
special witness, or a lawfully edited copy of the recording-- 2
(a) is as admissible as if the evidence were given orally in the 3
proceeding in accordance with the usual rules and practice of the 4
court; and 5
(b) is, unless the relevant court otherwise orders, admissible in-- 6
(i) any rehearing or re-trial of, or appeal from, the proceeding; 7
or 8
(ii) in the case of evidence given for a criminal proceeding-- 9
(A) another proceeding in the same court for the relevant 10
charge or for another charge arising out of the same, or 11
the same set of, circumstances; or 12
(B) a civil proceeding arising from the commission of the 13
offence.'. 14
(9) Section 21A(7), from `or' to `videotaped'-- 15
omit, insert-- 16
`or (e)'. 17
(10) Section 21A-- 18
insert-- 19
`(8) If evidence is given, or to be given, in a proceeding on indictment 20
under an order or direction mentioned in subsection (2)(a) to (e), the judge 21
presiding at the proceeding must instruct the jury that-- 22
(a) they should not draw any inference as to the defendant's guilt 23
from the order or direction; and 24
(b) the probative value of the evidence is not increased or decreased 25
because of the order or direction; and 26
(c) the evidence is not to be given any greater or lesser weight 27
because of the order or direction.'. 28
60 Insertion of new pt 2, divs 4A and 4B
Clause 29
After part 2, division 4-- 30
insert-- 31
s 60 54 s 60
Evidence (Protection of Children) Amendment
Bill 2003
`Division 4A--Evidence of affected children 1
`Subdivision 1--Preliminary 2
`21AA Purposes of div 4A 3
`The purposes of this division are-- 4
(a) to preserve, to the greatest extent practicable, the integrity of an 5
affected child's evidence; and 6
(b) to require, wherever practicable, that an affected child's evidence 7
be taken in an environment that limits, to the greatest extent 8
practicable, the distress and trauma that might otherwise be 9
experienced by the child when giving evidence. 10
`21AB How purposes are to be achieved 11
`To achieve the purposes of this division, the division prescribes the 12
following measures for an affected child when giving evidence for a 13
relevant proceeding-- 14
(a) for a criminal proceeding-- 15
(i) the child's evidence is to be pre-recorded in the presence of 16
a judicial officer, but in advance of the proceeding; 17
(ii) if the measure in paragraph (a) can not be given effect, the 18
child's evidence is to be given at the proceeding, but with 19
the use of an audio visual link or with the benefit of a 20
screen; 21
(iii) for a committal proceeding, the child's evidence-in chief is 22
to be given only as a statement and, ordinarily, the child is 23
not to be called as a witness for cross-examination; 24
(b) for a civil proceeding, the child's evidence is to be given at the 25
proceeding with the use of an audio visual link or with the benefit 26
of a screen. 27
`21AC Definitions for div 4A 28
`In this division-- 29
s 60 55 s 60
Evidence (Protection of Children) Amendment
Bill 2003
"affected child" means a child who is a witness in a relevant proceeding 1
and who is not a defendant in the proceeding. 2
"child" see section 21AD. 3
"civil proceeding arising from the commission of a relevant offence" 4
does not include a proceeding for a domestic violence order under the 5
Domestic and Family Violence Protection Act 1989. 6
"counsel" includes solicitor. 7
"defendant" means-- 8
(a) in a criminal proceeding--a person charged with an offence; or 9
(b) in a civil proceeding arising from the commission of a relevant 10
offence--a person whose act or omission is complained of. 11
"offence involving violence" means an offence against any of the 12
following provisions of the Criminal Code-- 13
· a provision of chapter 2831 14
· a provision of chapter 2932 other than section 317A, 318, 319, 15
319A, 321, 321A, 327, 329, 330, 331, 332, 333 or 334 16
· sections 335, 339, 340, 354, 354A and 355 17
· a provision of chapter 33A 33
18
· sections 363, 363A and 364. 19
"offence of a sexual nature" means an offence against any of the 20
following provisions of the Criminal Code-- 21
· a provision of chapter 2234 other than section 224, 225 or 226 22
· a provision of chapter 32.35 23
"preliminary hearing" means a hearing under section 21AK. 36
24
31 Criminal Code, chapter 28 (Homicide--suicide--concealment of birth)
32 Criminal Code, chapter 29 (Offences endangering life or health)
33 Criminal Code, chapter 33A (Unlawful stalking)
34 Criminal Code, chapter 22 (Offences against morality)
35 Criminal Code, chapter 32 (Rape and sexual assaults)
36 Section 21AK (Video-taping of affected child's evidence)
s 60 56 s 60
Evidence (Protection of Children) Amendment
Bill 2003
"prescribed relationship", between a child who is a witness in a 1
proceeding and a defendant in the proceeding, means any of the 2
following-- 3
(a) a relationship, regardless of whether it is a half, adoptive or step 4
relationship, where the defendant is-- 5
(i) a parent of the child; or 6
(ii) a grandparent of the child; or 7
(iii) a brother or sister of the child; or 8
(iv) an uncle, aunt, nephew, niece or cousin of the child; 9
(b) a relationship arising because, at the time of the alleged offence 10
with which the defendant is charged, the defendant lived in the 11
same household as the child; 12
(c) a relationship arising because the defendant had the care of, or 13
exercised authority over, the child in a household on a regular 14
basis. 15
"proceeding" means any civil or criminal proceeding, including a 16
preliminary hearing. 17
"relevant offence", in relation to a proceeding, means-- 18
(a) an offence of a sexual nature; or 19
(b) an offence involving violence, if there is a prescribed relationship 20
between a child who is a witness in the proceeding and a 21
defendant in the proceeding. 22
"relevant proceeding" means-- 23
(a) a criminal proceeding for a relevant offence, whether or not the 24
proceeding also relates to other offences; or 25
(b) a civil proceeding arising from the commission of a relevant 26
offence. 27
"step relationship" includes a relationship corresponding to a step 28
relationship arising because of cohabitation in a de facto relationship 29
or because of a foster relationship or a legal arrangement. 30
`21AD Meaning of "child" 31
`(1) For the purposes of a proceeding for this division, a "child" is-- 32
s 60 57 s 60
Evidence (Protection of Children) Amendment
Bill 2003
(a) if the proceeding is a criminal proceeding-- 1
(i) an individual who is under 16 years when the first of the 2
following happens-- 3
(A) the defendant in the proceeding is arrested; 4
(B) a complaint is made under the Justices Act 1886, 5
section 4237 in relation to the defendant in the 6
proceeding; 7
(C) a notice to appear is served on the defendant in the 8
proceeding under the Police Powers and 9
Responsibilities Act 2000, section 214;38 or 10
(ii) an individual who is 16 or 17 years when the first of the 11
matters mentioned in subparagraph (i) happens and who is a 12
special witness; or 13
(b) if the proceeding is a civil proceeding arising from the 14
commission of a relevant offence-- 15
(i) an individual who is under 16 years when the proceeding 16
starts; or 17
(ii) an individual who is 16 or 17 years when the proceeding 18
starts and who is a special witness. 19
`(2) An individual remains a "child" for the purposes of giving evidence 20
for a proceeding if the child gives evidence for the proceeding at any time 21
before the child turns 18 years. 22
`Subdivision 2--Committal proceeding 23
`21AE Application of sdiv 2 24
`This subdivision applies to the taking of an affected child's evidence for 25
a committal proceeding for a relevant offence, whether or not the 26
committal proceeding also relates to other offences. 27
37 Justices Act 1886, section 42 (Commencement of proceedings)
38 Police Powers and Responsibilities Act 2000, section 214 (Notice to appear may be
issued for offence)
s 60 58 s 60
Evidence (Protection of Children) Amendment
Bill 2003
`21AF Evidence-in-chief 1
`(1) The affected child's evidence-in-chief must be given as a statement 2
without the child being called as a witness. 3
`(2) For this section, the Justices Act 1886, section 110A39 applies with 4
all necessary changes and as though a reference in that section to a written 5
statement included a reference to a statement contained in a document as 6
defined under schedule 3. 7
`(3) Also, for the purposes of applying the Justices Act 1886, 8
section 110A, that section is to be read with the following changes-- 9
(a) if the child's statement is a written statement--subsections (4), 10
(5)(a) and (d), (8) and (9) of that section were omitted; 11
(b) if the child's statement is not a written statement-- 12
(i) subsections (4), (5), (8) and (9) of that section were omitted; 13
and 14
(ii) in subsection (13)-- 15
(A) the words `read as evidence' were omitted and the 16
words `received as evidence' were inserted in their 17
place; and 18
(B) paragraph (a) were omitted. 19
`(4) Further, for the purposes of applying the Justices Act 1886, 20
section 111,40 that section applies with all necessary changes and is to be 21
read as though, in subsections (1) and (2), the words `read as evidence' 22
were omitted and the words `received as evidence' were inserted in their 23
place. 24
`(5) In addition, for the purposes of applying the Criminal Law 25
Amendment Act 1892,41 section 4, that section applies with all necessary 26
changes and is to be read as though-- 27
39 Justices Act 1886, section 110A (Use of tendered statements in lieu of oral
testimony in committal proceedings)
40 Justices Act 1886, section 111 (Depositions of persons dead, absent etc)
41 Criminal Law Amendment Act 1892, section 4 (If prisoner does not require
witnesses to attend, their depositions may be put in at trial with any exhibits
attached)
s 60 59 s 60
Evidence (Protection of Children) Amendment
Bill 2003
(a) a reference to a deposition included a reference to a statement 1
contained in a document; and 2
(b) a reference to the reading of a deposition that is not a written 3
statement included a reference to the showing of a statement 4
contained in a document. 5
`(6) In this section-- 6
"statement" means-- 7
(a) a written statement; or 8
(b) a statement contained in a document. 9
`21AG Cross-examination 10
`(1) The affected child may be cross-examined only if, under this 11
section, a magistrate requires a party to call the child as a witness for that 12
purpose. 13
`(2) The requirement may be made, on an application, by-- 14
(a) a magistrate at a direction hearing under the Justices Act 1886, 15
section 83A;42 or 16
(b) the magistrate presiding at the committal proceeding. 17
`(3) A magistrate at a direction hearing must not require the child to be 18
called as a witness for cross-examination unless the magistrate is satisfied 19
that-- 20
(a) the party seeking to cross-examine the child has-- 21
(i) identified an issue to which the proposed questioning 22
relates; and 23
(ii) provided a reason why the evidence of the child is relevant 24
to the issue; and 25
(iii) explained why the evidence disclosed by the prosecution 26
does not address the issue; and 27
(iv) identified to the magistrate the purpose and general nature 28
of the questions to be put to the child to address the issue; 29
and 30
42 Justices Act 1886, section 83A (Direction hearing)
s 60 60 s 60
Evidence (Protection of Children) Amendment
Bill 2003
(b) the interests of justice can not adequately be satisfied by leaving 1
cross-examination of the child about the issue to the trial. 2
`(4) The magistrate presiding at the committal proceeding must not 3
require the child to be called as a witness for cross-examination unless the 4
magistrate is satisfied that-- 5
(a) the evidence before the court at the committal has identified an 6
issue to which the proposed questioning relates that could not 7
reasonably have been anticipated before the committal; and 8
(b) the party making the application has-- 9
(i) provided a reason why the evidence of the child is relevant 10
to the issue; and 11
(ii) explained why the evidence before the court does not 12
address the issue; and 13
(iii) identified to the magistrate the purpose and general nature 14
of the questions to be put to the child to address the issue; 15
and 16
(c) the interests of justice can not adequately be satisfied by leaving 17
cross-examination of the child about the issue to the trial. 18
`(5) Without limiting the matters to which the magistrate may have 19
regard for subsection (3)(b) or (4)(c), the magistrate-- 20
(a) must consider whether-- 21
(i) the prosecution case is adequately disclosed; and 22
(ii) the charge is adequately particularised; and 23
(b) must have regard to the vulnerability of children, the general 24
principles stated in section 9E and the undesirability of calling a 25
child as a witness for a committal proceeding. 26
`(6) The magistrate must give reasons for the magistrate's decision on 27
the application. 28
`(7) If, under this section, the magistrate requires a party to call the child 29
as a witness for cross-examination-- 30
(a) the child's evidence must be taken under subdivision 3 or 4;43 and 31
43 Subdivision 3 (Pre-recording of affected child's evidence) or 4 (Taking of affected
child's evidence using audio visual link or screen)
s 60 61 s 60
Evidence (Protection of Children) Amendment
Bill 2003
(b) when the magistrate decides the application, the magistrate must 1
decide whether the child's evidence is to be taken under 2
subdivision 3 or under subdivision 4, and how it is to be taken, 3
and give a direction accordingly. 4
`(8) In deciding whether the child's evidence is to be taken under 5
subdivision 3 or 4, and how it is to be taken, the magistrate must have 6
regard to the following-- 7
(a) the distress or trauma likely to be suffered by the child when 8
giving evidence and the need to minimise the child's distress or 9
trauma; 10
(b) whether a local court has an audio visual link and, if not, the 11
availability of another appropriate place with appropriate 12
equipment and facilities for taking or video-taping the child's 13
evidence under subdivision 3 or 4; 14
(c) whether the parties would be substantially inconvenienced if the 15
proceeding were to be adjourned to another place mentioned in 16
paragraph (b) that is not within the same locality as the court; 17
(d) the need for committal proceedings to be conducted 18
expeditiously. 19
`(9) In this section-- 20
"local court" means-- 21
(a) in relation to a magistrate at a direction hearing--a court at 22
which the committal proceeding would ordinarily be held; or 23
(b) in relation to the magistrate presiding at the committal 24
proceeding--the court in which the committal proceeding is 25
being held or another court within the court precincts. 26
"magistrate", presiding at a committal proceeding, includes justices 27
presiding at the proceeding. 28
`21AH Limitation on cross-examination 29
`(1) If the affected child is to be cross-examined, the party calling the 30
child may first ask the child questions for identifying the child and 31
s 60 62 s 60
Evidence (Protection of Children) Amendment
Bill 2003
establishing that the child made the statement mentioned in section 21AF44 1
and the truthfulness of the statement. 2
`(2) The presiding magistrate or justices must not allow the child to be 3
cross-examined about an issue other than the issue in relation to which the 4
child was required to be called unless the magistrate or justices are satisfied 5
as mentioned in section 21AG(3)(a) and (b) or section 21AG(4)(a) to (c), 6
whichever is relevant, in relation to the issue. 7
`(3) Also, the presiding magistrate or justices-- 8
(a) must not allow cross-examination to continue to the extent it-- 9
(i) does not appear relevant to an issue for which it may be 10
conducted; or 11
(ii) consists of exploratory questions asked in the hope of 12
receiving any answer of any assistance to the party 13
conducting the cross-examination, commonly known as a 14
`fishing expedition'; and 15
(b) must disallow a question that may be disallowed under section 20 16
or 21.45 17
`(4) The child may be re-examined by the party calling the child. 18
`Subdivision 3--Pre-recording of affected child's evidence 19
`21AI Application of sdiv 3 20
`(1) This subdivision applies to taking an affected child's evidence-- 21
(a) for a summary trial for a relevant offence; and 22
(b) for a trial on indictment for a relevant offence; and 23
(c) for a committal proceeding for a relevant offence, if a magistrate 24
or justices give a direction as mentioned in section 21AG(7)(b)46 25
that the child's evidence is to be taken under this subdivision. 26
44 Section 21AF (Evidence-in-chief)
45 Section 20 (Cross-examination as to credit) or 21 (Improper questions)
46 Section 21AG (Cross-examination)
s 60 63 s 60
Evidence (Protection of Children) Amendment
Bill 2003
`(2) However, this subdivision does not apply to an affected child who is 1
a witness for the defence. 2
`(3) Subsection (1) applies to a proceeding whether or not the 3
proceeding also relates to offences other than the relevant offence. 4
`21AJ Presentation of indictment 5
If the affected child's evidence is to be taken for a trial on indictment, the 6
indictment must be presented before the evidence can be taken under this 7
subdivision. 8
`21AK Video-taping of affected child's evidence 9
`(1) The affected child's evidence must be taken and video-taped at a 10
hearing under this section (a "preliminary hearing") presided over by a 11
judicial officer. 12
`(2) The video-taped recording must be presented-- 13
(a) if taken for a committal proceeding--to the court at the 14
committal proceeding; or 15
(b) if taken for a trial--to the court at the trial. 16
`(3) To facilitate the operation of this section for the taking of the child's 17
evidence in a proceeding, the judicial officer may order that the preliminary 18
hearing be conducted by audio visual link. 19
`(4) The provisions of part 3A47 relating to the use of an audio visual link 20
in criminal proceedings apply for, and are not limited by, subsection (3). 21
`(5) To facilitate the operation of this section for a trial, the judicial 22
officer must, if it is not practicable at the place of the trial to take and 23
video-tape the child's evidence-- 24
(a) adjourn the trial to an appropriately equipped place to allow the 25
evidence to be taken and video-taped; or 26
(b) make another order the judicial officer considers appropriate 27
including, for example, an order that the preliminary hearing be 28
conducted by audio visual link. 29
47 Part 3A (Audio visual links and audio links)
s 60 64 s 60
Evidence (Protection of Children) Amendment
Bill 2003
`(6) If the taking and video-taping of the child's evidence is done at a 1
place that is not a courtroom, the place is taken to be a courtroom for all 2
purposes for the preliminary hearing. 3
`(7) It does not matter whether or not the judicial officer presiding and 4
the counsel appearing at the preliminary hearing are the same judicial 5
officer presiding and counsel appearing at an adjourned preliminary 6
hearing or at the proceeding in which the video-taped recording is 7
presented to the court. 8
`(8) Also, it does not matter if, while the preliminary hearing is 9
conducted, the judicial officer, counsel, parties and witnesses are at 10
different places. 11
12
Example--
13
To facilitate the taking and video-taping of the affected child's evidence, the judicial
14
officer directs that the child give the evidence by audio visual link. The preliminary
15
hearing is conducted while the judicial officer, counsel and defendant are in a
16
courtroom in a particular city and the child is in a room in another city connected to the
17
courtroom through the audio visual link.
`(9) In this section-- 18
"appropriately equipped place", for the taking and video-taping of an 19
affected child's evidence, means a court, or another place that is not a 20
court, that-- 21
(a) is equipped to take and video-tape the child's evidence; and 22
(b) allows the defendant to see and hear the child while the child is 23
giving evidence, for example, through an audio visual link. 24
"evidence" means evidence-in-chief or evidence given in 25
cross-examination or re-examination. 26
`21AL Court to give directions for taking an affected child's evidence 27
`(1) The judicial officer presiding at the preliminary hearing may make 28
any order the judicial officer considers appropriate in relation to taking and 29
video-taping the affected child's evidence. 30
`(2) Without limiting subsection (1), the judicial officer may give 31
directions, with or without conditions, as to the conduct of the preliminary 32
hearing, including directions as to-- 33
(a) whether the child is to be in the courtroom or a separate room 34
when the child's evidence is being taken; and 35
s 60 65 s 60
Evidence (Protection of Children) Amendment
Bill 2003
(b) the persons who may be present in the same room as the child 1
when the child's evidence is being taken. 2
`(3) Subsection (2)(b) is subject to section 21AU. 3
4
Note--
5
Section 21AU makes provision about the exclusion of persons while an affected child
6
witness is giving evidence in relation to a relevant offence.
`(4) At the preliminary hearing-- 7
(a) the defendant-- 8
(i) must not be in the same room as the child when the child's 9
evidence is being taken; but 10
(ii) must be capable of seeing and hearing the child while the 11
child is giving evidence; and 12
(b) subject to the judicial officer's control, the child is to give his or 13
her evidence-in-chief and be cross-examined and re-examined; 14
and 15
(c) except as provided by this subdivision, the usual rules of 16
evidence apply. 17
`(5) The judicial officer may adjourn the hearing from time to time until 18
the taking and video-taping of the child's evidence is complete. 19
`21AM Use of pre-recorded evidence 20
`(1) A video-taped recording of the affected child's evidence made 21
under this subdivision for a proceeding, or a lawfully edited copy of the 22
recording-- 23
(a) is as admissible as if the evidence were given orally in the 24
proceeding in accordance with the usual rules and practice of the 25
court; and 26
(b) is, unless the relevant court otherwise orders, admissible in-- 27
(i) any rehearing or re-trial of, or appeal from, the proceeding; 28
or 29
(ii) another proceeding in the same court for the relevant charge 30
or for another charge arising out of the same, or the same set 31
of, circumstances; or 32
s 60 66 s 60
Evidence (Protection of Children) Amendment
Bill 2003
(iii) a civil proceeding arising from the commission of the 1
relevant offence. 2
`(2) The admissibility of the recording or copy for a proceeding is not 3
affected only because the child turns 18 before the evidence is presented at 4
the proceeding. 5
`21AN Giving of further evidence 6
`(1) This section applies if the affected child has given evidence under 7
this subdivision for a proceeding and has been excused from further 8
attendance as a witness at the proceeding. 9
`(2) A party may apply to the court for an order that the child-- 10
(a) give further evidence under this subdivision at another 11
preliminary hearing; or 12
(b) attend at the proceeding to give further evidence. 13
`(3) The court must not make the order unless satisfied that-- 14
(a) if the child were giving evidence before a court in the ordinary 15
way, the child could be recalled to give further evidence; and 16
(b) it would be in the interests of justice to make the order. 17
`(4) The court must not make an order that the child attend at the 18
proceeding to give further evidence unless satisfied it is not possible or not 19
practical for the child to give the further evidence at another preliminary 20
hearing. 21
`21AO Court order that evidence not to be taken and recorded under 22
this sdiv 23
`(1) This section applies if an affected child is to give evidence in a 24
criminal proceeding, other than a committal proceeding, for a relevant 25
offence. 26
`(2) A party may apply to the court for an order that the child's evidence 27
not be taken and video-taped under this subdivision. 28
`(3) The court may make the order for good reason, having regard to the 29
child's wishes and the purposes of this division. 30
s 60 67 s 60
Evidence (Protection of Children) Amendment
Bill 2003
1
Example--
2
If a courtroom or other place with facilities to take and video-tape the affected child's
3
evidence is not likely to be available within a reasonable time, the court may decide the
4
child's interests are better served by dealing with the proceeding quickly rather than
5
waiting for a courtroom or other place with the necessary facilities to become available.
`Subdivision 4--Taking of affected child's evidence using audio visual 6
link or screen 7
`21AP Application of sdiv 4 8
`(1) This subdivision applies to taking an affected child's evidence-- 9
(a) for a summary trial for a relevant offence, if the evidence is not 10
taken under subdivision 3; or 11
(b) for a trial on indictment for a relevant offence, if the evidence is 12
not taken under subdivision 3; or 13
(c) for a committal proceeding for a relevant offence, if a magistrate 14
or justices give a direction as mentioned in section 21AG(7)(b)48 15
that the child's evidence is to be taken under this subdivision; or 16
(d) for summary trial, trial on indictment or committal proceeding 17
for a relevant offence, if the child is ordered under section 21AN 18
to attend at the proceeding to give further evidence; or 19
(e) for a civil proceeding arising from the commission of a relevant 20
offence. 21
`(2) Subsection (1) applies to a proceeding whether or not the 22
proceeding also relates to offences other than the relevant offence. 23
`21AQ Audio visual links or screening arrangements must be used 24
`(1) This section-- 25
(a) applies subject to any order under section 21AR; and 26
(b) has effect despite the Criminal Code, section 617.49 27
48 Section 21AG (Cross-examination)
49 Criminal Code, section 617 (Presence of accused)
s 60 68 s 60
Evidence (Protection of Children) Amendment
Bill 2003
`(2) If there is an audio visual link within the court precincts, the judicial 1
officer presiding at the proceeding for the giving of evidence by the 2
affected child must direct that-- 3
(a) the child give evidence outside the courtroom and the evidence 4
be transmitted to the courtroom by means of the audio visual 5
link; or 6
(b) while the child is giving evidence, the defendant be held in a 7
room apart from the courtroom and the evidence be transmitted 8
to that room by means of the audio visual link. 9
`(3) It is not necessary that the place outside the courtroom at which the 10
child gives evidence under subsection (2)(a) be within the court precincts. 11
`(4) If a direction is given under subsection (2)(a) or (b) and the audio 12
visual link enables video-taping, the child's evidence must be video-taped. 13
`(5) If a direction can not be given under subsection (2)(a) or (b), a 14
screen, one-way glass or other thing must be so placed in relation to the 15
child while he or she is giving evidence that the child can not see the 16
defendant. 17
`(6) A video-taped recording of the child's evidence made under this 18
section, or a lawfully edited copy of the recording, is, unless the relevant 19
court otherwise orders, admissible in-- 20
(a) any rehearing or re-trial of, or appeal from, the proceeding; or 21
(b) another proceeding in the same court for the relevant charge or 22
for another charge arising out of the same, or the same set of, 23
circumstances; or 24
(c) a civil proceeding arising from the commission of the relevant 25
offence. 26
`21AR Court may order that s 21AQ does not apply 27
`(1) This section applies if-- 28
(a) a relevant proceeding has been started in a court; and 29
(b) an affected child is to give evidence in the proceeding. 30
`(2) The party who is to call the child as a witness may apply to the 31
presiding judicial officer for an order that section 21AQ is not to apply to 32
the child. 33
s 60 69 s 60
Evidence (Protection of Children) Amendment
Bill 2003
`(3) The judicial officer may grant the application only if the judicial 1
officer is satisfied the child is able and wishes to give evidence in the 2
defendant's presence without using an audio visual link or a screen. 3
`Subdivision 5--General 4
`21AS Prosecutor or applicant to advise that an affected child is to 5
give evidence 6
`(1) The prosecutor or applicant in a relevant proceeding must inform the 7
court, before the proceeding starts, that an affected child may give evidence 8
in the proceeding. 9
`(2) For a trial on indictment, the prosecutor must inform the court at the 10
time the indictment is presented. 11
`(3) A failure to comply with subsection (1) or (2) does not prevent an 12
affected child's evidence being taken or video-taped under this division or 13
affect the admissibility of the evidence. 14
`21AT Identification of persons or things by affected child 15
`(1) This section applies if an affected child is required to identify a 16
person, including the defendant, or thing when the child is giving evidence. 17
`(2) The court may make the orders it considers appropriate to ensure 18
that the identification is carried out in a way that limits the distress or 19
trauma that might be suffered by the child when making the identification. 20
21
Note--
22
See section 9E for the general principles to be applied when dealing with a child
23
witness.
`(3) The court must also decide at what point during the giving of the 24
child's evidence the identification is to be made. 25
`(4) If an affected child is required to be in the defendant's presence for 26
the purposes of identification, the child should not be required to be in the 27
defendant's presence for the identification for any longer than is necessary. 28
s 60 70 s 60
Evidence (Protection of Children) Amendment
Bill 2003
`21AU Exclusion of public 1
`(1) This section applies if an affected child is to give evidence in a 2
relevant proceeding under this division. 3
`(2) If the child is to give evidence about an offence of a sexual nature, 4
the court must exclude from the room in which it is sitting all persons other 5
than essential persons while the child is giving the evidence. 6
`(3) If the child is to give evidence other than in relation to an offence of 7
a sexual nature, the court must exclude from the room in which it is sitting 8
all persons other than essential persons while the child is giving the 9
evidence unless the court is satisfied that the interests of justice require the 10
evidence to be heard in open court. 11
`(4) In this section-- 12
"essential person", for a proceeding, means any of the following 13
persons-- 14
(a) a party to the proceeding and the party's counsel; 15
(b) a Crown law officer or a person authorised by a Crown law 16
officer; 17
(c) the prosecutor; 18
(d) a person whose presence is, in the court's opinion, necessary or 19
desirable for the proper conduct of the proceeding; 20
(e) a support person for the child under section 21AV; 21
(f) a person who applies to the court to be present and whose 22
presence, in the court's opinion-- 23
(i) would serve a proper interest of the person; and 24
(ii) would not be prejudicial to the child's interests. 25
`21AV Affected child entitled to support 26
`(1) An affected child, while he or she is giving evidence in a relevant 27
proceeding, is entitled to have near to him or her a person who may provide 28
the child with support (a "support person"). 29
`(2) A person may be the child's support person only if the person is 30
approved by the court on application by the party proposing to call the 31
child. 32
s 60 71 s 60
Evidence (Protection of Children) Amendment
Bill 2003
`(3) The support person must be permitted to be in close proximity to the 1
child, and within the child's sight, while the child is giving evidence. 2
`(4) An affected child may, with the agreement of the court, waive the 3
entitlement to a support person under subsection (1). 4
`(5) The court must not agree to the waiver if the court considers the 5
waiver is not in the child's best interests. 6
`21AW Instructions to be given to jury 7
`(1) This section applies to a proceeding on indictment if any of the 8
following measures is taken-- 9
(a) an affected child's evidence is taken in a way provided for under 10
subdivision 3 or 4;50 11
(b) a person is excluded under section 21AU while an affected child 12
gives evidence; 13
(c) an affected child has a support person under section 21AV while 14
the child gives evidence. 15
`(2) The judicial officer presiding at the proceeding must instruct the jury 16
that-- 17
(a) the measure is a routine practice of the court and that they should 18
not draw any inference as to the defendant's guilt from it; and 19
(b) the probative value of the evidence is not increased or decreased 20
because of the measure; and 21
(c) the evidence is not to be given any greater or lesser weight 22
because of the measure. 23
`21AX Orders, directions and rulings concerning affected child 24
witnesses 25
`(1) The court may make any orders or give any directions or rulings it 26
considers appropriate for this division on the court's own initiative or on an 27
application made to the court by a party to the proceeding. 28
50 Subdivision 3 (Pre-recording of affected child's evidence) or 4 (Taking of affected
child's evidence using audio visual link or screen)
s 60 72 s 60
Evidence (Protection of Children) Amendment
Bill 2003
`(2) Subsection (1) does not limit the Criminal Code, section 590AA or 1
the Justices Act 1886, section 83A.51 2
`Division 4B--Dealing with a recording 3
`21AY Definitions for div 4B 4
`In this division-- 5
"presiding judicial officer", in relation to a recording, means the judicial 6
officer presiding at-- 7
(a) the proceeding in which the recording is made; or 8
(b) the proceeding in which the recording is presented or to be 9
presented; or 10
(c) a hearing for giving a direction or ruling under the Criminal 11
Code, section 590AA;52 or 12
(d) a direction hearing under the Justices Act 1886, section 83A.53 13
"recording" means-- 14
(a) a video-taped recording of a special witness's evidence made 15
under section 21A;54 or 16
(b) a video-taped recording of an affected child's evidence made 17
under division 4A, subdivision 3 or subdivision 4;55or 18
(c) a copy of a video-taped recording mentioned in paragraph (a) or 19
(b). 20
51 Criminal Code, section 590AA (Pre-trial directions and rulings) or the Justices Act
1886, section 83A (Direction hearing)
52 Criminal Code, section 590AA (Pre-trial directions and rulings)
53 Justices Act 1886, section 83A (Direction hearing)
54 Section 21A (Evidence of special witnesses)
55 Division 4A (Evidence of affected children), subdivision 3 (Pre-recording of
affected child's evidence) or subdivision 4 (Taking of affected child's evidence using
audio visual link or screen)
s 60 73 s 60
Evidence (Protection of Children) Amendment
Bill 2003
`21AZ Approval to edit or otherwise change a recording 1
`(1) An original recording must not be edited or otherwise changed in 2
any way. 3
`(2) The presiding judicial officer may, on application, give approval for 4
a copy of an original recording to be edited or changed in a stated way. 5
6
Example--
7
The presiding judicial officer may give approval for a copy of an original recording to
8
be edited to omit certain inadmissible material.
`21AZA Court to give directions about the use or safe-keeping of a 9
recording 10
`(1) The presiding judicial officer may make any order the judicial 11
officer considers appropriate about the use or safe-keeping of a recording. 12
`(2) Without limiting subsection (1), the presiding judicial officer may 13
give directions, with or without conditions, as to-- 14
(a) the persons, or classes of persons, who are authorised to have 15
possession of a recording; and 16
(b) the giving up of possession of a recording. 17
`(3) The presiding judicial officer must have regard to the following 18
matters when deciding the persons, or classes of persons, who are 19
authorised to have possession of a recording-- 20
(a) the need for counsel involved in the proceeding to have access to 21
the recording; 22
(b) the need to ensure that persons authorised to have possession of 23
the recording are able to take appropriate measures to ensure 24
there is no unauthorised access to the recording. 25
`(4) In this section-- 26
"use", of a recording, includes copying of the recording. 27
`21AZB Unauthorised possession of, or dealing with, recording 28
`(1) A person commits an offence who, without authority-- 29
(a) has a recording in his or her possession; or 30
(b) supplies, or offers to supply, a recording to any person; or 31
s 60 74 s 60
Evidence (Protection of Children) Amendment
Bill 2003
(c) plays, copies or erases a recording or permits a person to play, 1
copy or erase a recording. 2
Maximum penalty-- 3
(a) for an individual--100 penalty units or 2 years imprisonment; or 4
(b) for a corporation--1 000 penalty units. 5
`(2) A person has authority for subsection (1) only if the person has the 6
possession or does the thing mentioned in subsection (1)-- 7
(a) in the case of a public official--for a purpose connected with the 8
proceeding for which the recording was made or any rehearing or 9
re-trial of, or appeal from, the proceeding, or civil proceeding in 10
which the recording may be presented in evidence; or 11
(b) in any case--as authorised by a judicial officer under 12
section 21AZA. 13
`21AZC Publishing a recording prohibited 14
`(1) A person must not publish all or part of a recording other than with 15
the approval of the relevant court and in accordance with any condition 16
attached to the court's approval. 17
Maximum penalty-- 18
(a) for an individual--100 penalty units or 2 years imprisonment; or 19
(b) for a corporation--1 000 penalty units. 20
`(2) An approval under subsection (1) may be given only in exceptional 21
circumstances. 22
`(3) In subsection (1)-- 23
"publish" means disseminate to the public by radio or television or 24
otherwise by the transmission of light or sound. 25
"relevant court" means the court presiding at the proceeding or 26
preliminary hearing at which the recording is made or the court of trial 27
or appeal at which the recording is presented.'. 28
s 61 75 s 63
Evidence (Protection of Children) Amendment
Bill 2003
61 Amendment of s 39C (Definitions for pt 3A)
Clause 1
Section 39C, definition "audio visual link"-- 2
omit. 3
62 Amendment of s 83 (Definitions for div 6)
Clause 4
Section 83, definition "court", paragraph (c), `stipendiary'-- 5
omit. 6
63 Amendment of s 93A (Statement made before proceeding by child
Clause 7
under 12 years or intellectually impaired person) 8
(1) Section 93A, heading, `under 12 years'-- 9
omit. 10
(2) Section 93A(1), `(within the meaning of section 3)'-- 11
omit. 12
(3) Section 93A(1)(a), `under the age of 12 years'-- 13
omit. 14
(4) Section 93A(1)(b)-- 15
omit. 16
(5) Section 93A(1)(c)-- 17
renumber as section 93A(1)(b). 18
(6) Section 93A-- 19
insert-- 20
`(3A) For a committal proceeding for a relevant offence, subsections 21
(1)(b) and (3) do not apply to the person who made the statement if the 22
person is an affected child. 23
24
Note--
25
For the taking of an affected child's evidence for a committal proceeding for a relevant
26
offence, see part 2, division 4A, subdivision 2.'.
(7) Section 93A-- 27
insert-- 28
s 64 76 s 64
Evidence (Protection of Children) Amendment
Bill 2003
`(5) In this section-- 1
"affected child" see section 21AC. 2
"child" means-- 3
(a) a child who is under 16 years; or 4
(b) a child who is 16 or 17 years and who is a special witness. 5
"relevant offence" see section 21AC.'. 6
64 Insertion of new ss 93AA
Clause 7
After section 93A-- 8
insert-- 9
`93AA Unauthorised possession of, or dealing in, s 93A criminal 10
statements 11
`(1) A person commits an offence who, without authority-- 12
(a) has a section 93A criminal statement in the person's possession; 13
or 14
(b) supplies, or offers to supply, a section 93A criminal statement to 15
any person; or 16
(c) copies, or permits a person to copy, a section 93A criminal 17
statement. 18
Maximum penalty-- 19
(a) for an individual--100 penalty units or 2 years imprisonment; or 20
(b) for a corporation--1 000 penalty units. 21
`(2) A person has authority for subsection (1) only if the person has the 22
possession or does the thing mentioned in subsection (1) for a legitimate 23
purpose connected with the proceeding for which the section 93A 24
statement was made or another proceeding. 25
`(3) In this section-- 26
"section 93A criminal statement" means a statement-- 27
(a) made to a person investigating an alleged offence; and 28
s 65 77 s 67
Evidence (Protection of Children) Amendment
Bill 2003
(b) given in, or in anticipation of, a criminal proceeding about the 1
alleged offence; and 2
(c) that is potentially admissible under section 93A.'. 3
65 Amendment of s 131 (Witnesses for defence to be sworn)
Clause 4
Section 131-- 5
insert-- 6
`(2) Subsection (1) is subject to part 2, division 1A.56'. 7
66 Insertion of new pt 9, div 1 hdg
Clause 8
Part 9, before section 136-- 9
insert-- 10
`Division 1--Evidence Amendment Act 2000'. 11
67 Insertion of new pt 9, div 2
Clause 12
After part 9, division 1-- 13
insert-- 14
`Division 2--Evidence (Protection of Children) Amendment Act 2003 15
`137 Definitions for div 2 16
`In this division-- 17
"amending Act" means the Evidence (Protection of Children) Amendment 18
Act 2003. 19
"commencement day" means-- 20
(a) for section 138--the day the amending Act, section 56 21
commences; or 22
(b) for section 139--the day the amending Act, section 57 23
commences; or 24
56 Part 2 (Witnesses), division 1A (Competency of witnesses and capacity to be sworn)
s 67 78 s 67
Evidence (Protection of Children) Amendment
Bill 2003
(c) for sections 140, 141 and 142--the day the amending Act, 1
section 60 commences. 2
"originating step", for a proceeding, means-- 3
(a) the arrest of the defendant in the proceeding; or 4
(b) the making of a complaint under the Justices Act 1886, 5
section 4257 in relation to the defendant in the proceeding; or 6
(c) the serving of a notice to appear on the defendant in the 7
proceeding under the Police Powers and Responsibilities Act 8
2000, section 214.58 9
`138 Communications between a husband and wife 10
`Section 8(3) applies to communications whether made before or after 11
the commencement day. 12
`139 Evidence admitted under repealed s 9 13
`(1) Section 9D applies to evidence admitted before the commencement 14
day under repealed section 9 as if the evidence had been admitted under 15
section 9A. 16
`(2) In this section-- 17
"repealed section 9" means section 9 as in force before the 18
commencement day. 19
`140 Committal proceeding 20
`Part 2, division 4A, subdivision 259 applies to a committal proceeding 21
only if an originating step for the proceeding is taken on or after the 22
commencement day. 23
57 Justices Act 1886, section 42 (Commencement of proceedings)
58 Police Powers and Responsibilities Act 2000, section 214 (Notice to appear may be
issued for offence)
59 Part 2 (Witnesses), division 4A (Evidence of affected children), subdivision 2
(Committal proceeding)
s 68 79 s 70
Evidence (Protection of Children) Amendment
Bill 2003
`141 Pre-recording of evidence for a summary trial 1
`Part 2, division 4A, subdivision 3 applies to a summary trial for a
60
2
relevant offence only if an originating step for the proceeding is taken on or 3
after the commencement day. 4
`142 Pre-recording of evidence for a trial on indictment 5
`Part 2, division 4A, subdivision 3 applies to a trial on indictment for a 6
relevant offence only if the indictment is presented on or after the 7
commencement day.'. 8
68 Insertion of new sch 3
Clause 9
After schedule 2-- 10
insert-- 11
`SCHEDULE 3 12
`DICTIONARY 13
section 3'. 14
PART 11--AMENDMENT OF JUSTICES ACT 1886 15
69 Act amended in pt 11
Clause 16
This part amends the Justices Act 1886. 17
70 Amendment of s 4 (Definitions)
Clause 18
Section 4-- 19
60 Part 2 (Witnesses), division 4A (Evidence of affected children), subdivision 3
(Pre-recording of affected child's evidence)
s 71 80 s 72
Evidence (Protection of Children) Amendment
Bill 2003
insert-- 1
`"appealed order", for part 9, division 1, see section 221. 2
"general manager", for part 9, division 1, see section 221. 3
"notice of appeal", for part 9, division 1, see section 221. 4
"prison", for part 9, division 1, see section 221. 5
"relevant clerk of the court", for part 9, division 1, see section 221. 6
"relevant Magistrates Court", for part 9, division 1, see section 221. 7
"relevant registrar", for part 9, division 1, see section 221. 8
"respondent", for part 9, division 1, see section 221.'. 9
71 Insertion of new pt 4, division 1A
Clause 10
Part 4, before division 1-- 11
insert-- 12
`Division 1A--Prosecution disclosure 13
`41 Prosecution disclosure 14
`The laws relating to prosecution disclosure are set out in the Criminal 15
Code, chapter 62, chapter division 3.61'. 16
72 Amendment of s 83A (Direction hearing)
Clause 17
(1) Before section 83A(5)(a)-- 18
insert-- 19
`(aa) disclosing a thing under the Criminal Code, chapter 62, chapter 20
division 3;62'. 21
(2) Section 83A(5)(g)-- 22
omit, insert-- 23
61 Criminal Code, chapter 62 (Trial--Adjournment--Pleas--Practice), chapter
division 3 (Disclosure by the prosecution)
62 Criminal Code, chapter 62 (Trial--Adjournment--Pleas--Practice), chapter
division 3 (Disclosure by the prosecution)
s 73 81 s 74
Evidence (Protection of Children) Amendment
Bill 2003
`(g) if the proceeding is a committal proceeding-- 1
(i) the arrangements necessary for the giving of evidence by an 2
affected child witness under the Evidence Act 1977, part 2, 3
division 4A;63 or 4
(ii) cross-examining a protected witness under the Evidence Act 5
1977, part 2, division 6.64'. 6
73 Amendment of s 110A (Use of tendered statements in lieu of oral
Clause 7
testimony in committal proceedings) 8
(1) Section 110A(13A), `this subsection'-- 9
omit, insert-- 10
`subsection (13)'. 11
(2) Section 110A-- 12
insert-- 13
`(16) For a law about taking certain children's evidence for committal 14
proceedings for certain offences, see the Evidence Act 1977, part 2, 15
division 4A, subdivision 2.65'. 16
74 Amendment of s 154 (Copies of record)
Clause 17
(1) Section 154(3)-- 18
renumber as section 154(4). 19
(2) Section 154-- 20
insert-- 21
`(3) A person is not entitled under this section to a copy of-- 22
(a) sensitive evidence as defined under the Criminal Code, section 23
590AF;66 or 24
63 Evidence Act 1977, part 2 (Witnesses), division 4A (Evidence of affected children)
64 Evidence Act 1977, part 2 (Witnesses), division 6 (Cross-examination of protected
witnesses)
65 Evidence Act 1977, part 2 (Witnesses), division 4A (Evidence of affected children),
subdivision 2 (Committal proceedings)
66 Criminal Code, section 590AF (Meaning of "sensitive evidence")
s 75 82 s 75
Evidence (Protection of Children) Amendment
Bill 2003
(b) a section 93A criminal statement as defined under the Evidence 1
Act 1977, section 93AA;67 or 2
(c) a recording as defined under the Evidence Act 1977, section 3
21AY.'. 4
75 Replacement of s 222 (Appeal to a single judge)
Clause 5
(1) Section 222-- 6
omit, insert-- 7
`221 Definitions for div 1 8
`In this part-- 9
"appealed order" means the order against which an appeal is made under 10
section 222. 11
"general manager" of a prison, for a place where a person is held in 12
lawful custody other than a prison under the Corrective Services Act 13
2000, means the person in charge of the place. 14
"notice of appeal" means a notice of appeal under section 222(3), (4) or 15
(5). 16
"prison" includes any place in which a person is held in lawful custody. 17
"relevant clerk of the court" means the clerk of the court of the relevant 18
Magistrates Court. 19
"relevant Magistrates Court" means the Magistrates Court at the place 20
where the appealed order was made. 21
"relevant registrar" means the registrar of the District Court at the place 22
where the appeal under section 222 will be heard. 23
"respondent' means the person concerned in upholding the appealed 24
order. 25
`222 Appeal to a single judge 26
`(1) If a person feels aggrieved as complainant, defendant or otherwise 27
by an order made by justices or a justice in a summary way on a complaint 28
67 Evidence Act 1977, section 93AA (Unauthorised possession of, or dealing in, s 93A
criminal statements)
s 75 83 s 75
Evidence (Protection of Children) Amendment
Bill 2003
for an offence or breach of duty, the person may appeal within 1 month 1
after the date of the order to a District Court judge. 2
3
Notes--
4
1. Under the Criminal Code, section 669A(6), an appeal against a decision by a
5
person under this section to a District Court judge is removed directly to the Court
6
of Appeal if the Attorney-General also appeals against the decision under
7
section 669A.
8
2. This division applies in relation to an order made by justices dealing summarily
9
with a child charged with an offence, but appeals must be made to a Childrens
10
Court judge--see the Juvenile Justice Act 1992, section 117.68'.
`(2) However, the following exceptions apply-- 11
(a) a person may not appeal under this section against a conviction 12
or order made in a summary way under the Criminal Code, 13
section 651; 14
(b) if the order the subject of the proposed appeal is an order of 15
justices dealing summarily with an indictable offence, a 16
complainant aggrieved by the decision may appeal under this 17
section only against sentence or an order for costs; 18
(c) if a defendant pleads guilty or admits the truth of a complaint, a 19
person may only appeal under this section on the sole ground that 20
a fine, penalty, forfeiture or punishment was excessive or 21
inadequate. 22
`(3) To start the appeal, the appellant must file a notice of appeal in a 23
District Court registry in the district in which the appeal must be heard and 24
decided under subsection (9) or the District Court of Queensland 25
Act 1967.69 26
`(4) For this section, an appellant is taken to have filed the notice of 27
appeal in the District Court registry-- 28
(a) if the District Court registry is more than 50 km from the place 29
where the order was made; and 30
(b) the appellant gives the notice of appeal to the relevant clerk of the 31
court. 32
68 This is the Juvenile Justice Act 1992, section 87C, as inserted by the Juvenile Justice
Amendment Act 2002, section 30 and renumbered by section 262 of that Act.
69 See District Court of Queensland Act 1967, section 116 (Venue of appeals).
s 75 84 s 75
Evidence (Protection of Children) Amendment
Bill 2003
`(5) Also, for this section, an appellant is taken to have filed the notice of 1
appeal in the District Court registry if the appellant is in custody in prison 2
and gives the notice of appeal to the prison's general manager. 3
`(6) A clerk of the court or general manager of a prison who receives a 4
notice of appeal under subsection (4)(b) or (5) must immediately give the 5
appellant a receipt of the notice of appeal in the approved form stating the 6
date of receipt. 7
`(7) If-- 8
(a) an issue arises in a proceeding about whether the appellant gave a 9
notice of appeal under subsection (4)(b) or (5); and 10
(b) the receipt under subsection (6) is not produced in evidence; 11
the onus of proof is on the appellant to prove the giving of the notice of 12
appeal under subsection (4)(b) or (5). 13
`(8) The notice of appeal must be in the approved form and state-- 14
(a) the appeal grounds; and 15
(b) the details required under section 222C; and 16
(c) the name and address of the respondent. 17
`(9) Subject to the District Court of Queensland Act 1967 sections 18
116(2) and 117, if the appellant is in custody, the appeal must be heard in 19
the District Court district where the appellant is in custody. 20
`222A Stay of particular matters 21
`(1) This section applies to the following-- 22
(a) an order made under an Act for the payment of restitution or 23
compensation that may be appealed against under section 222; 24
(b) the operation of the Sale of Goods Act 1896, section 26(1) in 25
relation to a conviction that may be appealed against under 26
section 222. 27
`(2) Unless otherwise expressly provided, the order or operation is 28
stayed-- 29
(a) until the end of 1 month after the making of the order or 30
conviction; and 31
s 75 85 s 75
Evidence (Protection of Children) Amendment
Bill 2003
(b) if an appeal against the order or conviction is started under 1
section 222--until the end of the appeal. 2
3
Note--
4
For what happens on the filing of an appeal against a conviction in relation to a
5
resulting disqualification from holding or obtaining a Queensland driver licence, see
6
the Transport Operations (Road Use Management) Act 1995, section 131(3A).
`222B Appeal documents must be sent to the relevant registrar 7
`(1) If a notice of appeal is given to a clerk of the court under section 8
222(4), the clerk of the court, within 7 days afterwards, must send to the 9
relevant registrar-- 10
(a) the notice of appeal; and 11
(b) the file of the Magistrates Court relating to the order. 12
`(2) If a notice of appeal is given to the general manager of a prison 13
under section 222(5), the general manager, within 7 days afterwards, must 14
send the notice of appeal to the relevant registrar. 15
`(3) If a notice of appeal is filed in a District Court registry other than 16
under section 222(4), the relevant registrar, within 7 days after receiving 17
the notice of appeal, must send a request to the relevant clerk of the court 18
asking for any court file relevant to the appealed order or the appeal to be 19
sent to the registrar. 20
`(4) The clerk of the court must comply with the request within 7 days. 21
`222C Contact details and address for service 22
`(1) An appellant must ensure-- 23
(a) if the appellant intends to act personally, the following details are 24
on the notice of appeal before it is filed or taken to be filed under 25
section 222(3), (4) or (5)-- 26
(i) the residential or business address of the appellant; 27
(ii) if the appellant has a telephone number--the telephone 28
number; 29
(iii) if the appellant does not have a telephone number--a way 30
of contacting the appellant by telephone; 31
(iv) the fax number (if any) of the appellant; or 32
s 75 86 s 75
Evidence (Protection of Children) Amendment
Bill 2003
(b) if a solicitor is appointed to act for the appellant, the following 1
details are on the notice of appeal before it is filed or taken to be 2
filed given under section 222(3), (4) or (5)-- 3
(i) the residential or business address of the appellant; 4
(ii) the name of the solicitor and, if the solicitor practises in a 5
firm of solicitors, the name of the firm; 6
(iii) the address of the solicitor's place of business; 7
(iv) the solicitor's telephone number; 8
(v) the solicitor's fax number. 9
`(2) To change the address for service or any other contact details, the 10
appellant must file in the District Court registry a notice of address for 11
service stating the new address for service. 12
`(3) The "address for service" of an appellant is-- 13
(a) for a party acting personally--the address specified under 14
subsection (1)(a)(i); and 15
(b) for a party for whom a solicitor acts--the address specified under 16
subsection (1)(b)(iii). 17
`222D Duty of relevant registrar to give notice of appeal and 18
appeal hearing 19
`(1) The relevant registrar must give notice of the appeal to the 20
respondent-- 21
(a) if the notice of appeal was given under section 222(4) or 22
(5)--within 7 days of the notice being received by the registrar 23
under section 222B; or 24
(b) otherwise--within 7 days of the filing of the notice of appeal in 25
the District Court registry. 26
`(2) Notice under subsection (1) must include a copy of the notice of 27
appeal. 28
`(3) Also, at least 10 days before the District Court hears an appeal, the 29
relevant registrar must give notice of the hearing to the appellant and 30
respondent. 31
s 76 87 s 76
Evidence (Protection of Children) Amendment
Bill 2003
`(4) If a respondent is a police officer, notice under subsection (1) or (3) 1
may be sufficiently given to that respondent by giving notice to the 2
commissioner of the police service. 3
`(5) If a respondent is an officer of a public sector unit, notice under 4
subsection (1) or (3) may be sufficiently given to that respondent by giving 5
notice to the chief executive officer of the unit. 6
`(6) Subsections (1) and (3) do not stop the relevant registrar from giving 7
any notice about the appeal at any time to anyone. 8
`222E Duty of relevant registrar to give notice when particular issues 9
arise 10
`(1) This section applies for an appealed order or operation of a 11
provision stayed under section 222A, (the "order" and "operation"). 12
`(2) At least 10 days before a District Court judge hears the appeal, the 13
relevant registrar must give notice of the hearing of the appeal to each 14
interested person. 15
`(3) In this section-- 16
"interested person" means the person in whose favour the order was made 17
or who benefited from the operation.'. 18
76 Replacement of s 224 (Power to adjourn appeal)
Clause 19
Section 224-- 20
omit, insert-- 21
`224 Powers of judge incidental to appeal 22
`(1) For an appeal, a District Court judge may, on the application of a 23
party or the judge's own initiative-- 24
(a) extend the time for filing a notice of appeal; or 25
(b) make orders and give directions about service of any notice and 26
about any procedure; or 27
(c) amend the notice of appeal or the statement of grounds of the 28
appeal; or 29
(d) adjourn the appeal for the time decided by the judge. 30
s 77 88 s 77
Evidence (Protection of Children) Amendment
Bill 2003
`(2) For anything under subsection (1), the judge may impose conditions 1
the judge considers appropriate, including, for example, ordering 1 or both 2
of the following-- 3
(a) subject to section 232(4),70 payment of costs; 4
(b) for anything other than an adjournment--an adjournment. 5
`(3) If a District Court judge is exercising a power under this section on 6
the judge's own initiative, then, if the parties are not before the court, the 7
judge must direct the parties to attend the court. 8
`(4) If a party is applying to a District Court judge to exercise a power 9
under this section against another party, then, unless the other party is 10
before the court, the party must serve a copy of the application on the other 11
party. 12
`(5) Subsection (1) has no effect on the responsibility or power of the 13
Chief Judge under the District Court of Queensland Act 1967, 14
section 28A.'. 15
77 Replacement of s 225 (Powers of judge on hearing appeal)
Clause 16
Section 225-- 17
omit, insert-- 18
`225 Powers of judge on hearing appeal 19
`(1) On the hearing of an appeal, the judge may confirm, set aside or 20
vary the appealed order or make any other order in the matter the judge 21
considers just. 22
`(2) If the judge sets aside an order, the judge may send the proceeding 23
back to whoever made the order or to any Magistrates Court with directions 24
of any kind for the further conduct of the proceedings including, for 25
example, directions for rehearing or reconsideration. 26
`(3) For subsection (1), the judge may exercise any power that could 27
have been exercised by whoever made the order appealed against. 28
`(4) An order made under subsection (1) has effect, and may be enforced 29
in the same way, as if it had been made by whoever made the appealed 30
order.'. 31
70 Justices Act 1886, section 232 (Costs of appeal)
s 78 89 s 80
Evidence (Protection of Children) Amendment
Bill 2003
78 Amendment of s 228 (Appeal not to be defeated for defect in
Clause 1
notice etc. if amendable) 2
(1) Section 228, heading `if amendable'-- 3
omit. 4
(2) Section 228(2)-- 5
omit. 6
79 Insertion of new s 228A
Clause 7
After section 228-- 8
insert-- 9
`228A Discontinuance of appeal 10
`(1) An appellant may discontinue an appeal before it is heard by filing a 11
notice in the approved form with the relevant registrar. 12
`(2) If, under the appealed order, the appellant is liable to serve a term of 13
imprisonment and was released from custody pending the appeal, the 14
registrar must issue a warrant to arrest the appellant and commit the 15
appellant to prison to serve the term of imprisonment. 16
`(3) In this section-- 17
"term of imprisonment" includes the unexpired portion of a term of 18
imprisonment.'. 19
80 Replacement of s 229 (Failure to prosecute appeal)
Clause 20
Section 229-- 21
omit, insert-- 22
`229 Appeal may be struck out 23
`(1) If the appellant delays in prosecuting the appeal or fails to take a 24
necessary step to present the appeal, a District Court judge may strike out 25
the appeal on application in the approved form by a party to the appeal. 26
`(2) For subsection (1), the applicant must send a copy of the application 27
and notice of the hearing of the application to the appellant's address for 28
service at least 10 days before the date of the hearing of the application. 29
s 81 90 s 84
Evidence (Protection of Children) Amendment
Bill 2003
`(3) Also, if the appellant fails to appear on a day the appeal is to be 1
heard, the judge may strike out the appeal on proof that notice of the 2
hearing, informing the appellant the appeal may be struck out if the 3
appellant fails to appear, was sent to the appellant's address for service at 4
least 10 days before the date of the hearing.'. 5
81 Amendment of s 231 (Enforcement of decision)
Clause 6
(1) Section 231(2)-- 7
omit. 8
(2) Section 231(3), `Notwithstanding subsections (1) and (2)'-- 9
omit, insert-- 10
`Despite subsection (1)'. 11
(3) Section 231(4), `subsection (3)'-- 12
omit, insert-- 13
`subsection (2)'. 14
(4) Section 231(3) and (4)-- 15
renumber as section 231(2) and (3). 16
82 Omission of s 241 (Absconding appellant may be arrested)
Clause 17
Section 241-- 18
omit. 19
83 Insertion of new pt 11, div 1 hdg
Clause 20
In part 11, before section 268-- 21
insert-- 22
`Division 1--References'. 23
84 Insertion of new pt 11, div 2
Clause 24
Part 11-- 25
insert-- 26
s 84 91 s 84
Evidence (Protection of Children) Amendment
Bill 2003
`Division 2--Evidence (Protection of Children) Amendment Act 2003 1
`273 Previous recognisance to appear on appeal hearing 2
`(1) This section applies to a person who, before the commencement of 3
the Evidence (Protection of Children) Amendment Act 2002, section 75 4
(the "commencement") started an appeal under section 222. 5
`(2) If, at the commencement, the appeal has not ended, then, from the 6
commencement-- 7
(a) the appeal continues to be valid; and 8
(b) each step taken for the appeal under this Act before the 9
commencement continues to be effectual for the purpose for 10
which it was taken; and 11
(c) subject to paragraph (b), the provisions of this Act as they exist 12
after the commencement apply to the appeal, including for any 13
step that must or may be taken after the commencement. 14
`(3) If, immediately before the commencement, a recognisance entered 15
by the person under section 222 is in effect, from the commencement-- 16
(a) the recognisance continues to have effect; and 17
(b) despite the repeal of sections 231(2) and 241, those sections 18
continue to apply, as if they had not been repealed, to the person 19
until the recognisance is discharged.'. 20
21
© State of Queensland 2003
AMENDMENTS TO BILL
1
Evidence (Protection of Children) Amendment
Bill 2003
EVIDENCE (PROTECTION OF
CHILDREN) AMENDMENT BILL 2003
AMENDMENTS AGREED TO IN COMMITTEE
1 Clause 2--
At page 10, line 7, after `Act'--
insert--
`, other than parts 8 and 9A,'.
2 After clause 44--
At page 42, after line 20--
insert--
`44A Omission of ch 2, pt 3, div 2 hdg and s 30
`Chapter 2, part 3, division 2 heading and section 30--
omit, insert--
`30 Notice of application
`(1) Subject to section 30A(2), the State must give notice of the
application--
(a) to each person whose property the authorised commission officer
or police officer whose affidavit supports the application
reasonably believes is the subject of the application; and
(b) to anyone else the authorised commission officer or police officer
whose affidavit supports the application considers has an interest
in the property the subject of the application.
`(2) Notice given under subsection (1)(a) must be accompanied by a
copy of the affidavit supporting the application.
`(3) Notice given under subsection (1)(b) must include a statement
informing the person that if the person asks, the person will be given a copy
of the affidavit supporting the application.
2
Evidence (Protection of Children) Amendment
Bill 2003
`Division 2--Making restraining orders
`30A Hearing of application
`(1) The Supreme Court must not hear an application for a restraining
order unless satisfied the person whose property is the subject of the
application has received reasonable notice of the application.
`(2) Despite subsection (1), the court must consider the application
without notice having been given if the DPP asks the court to do so.
`(3) However, the Supreme Court may, at any time before finally
deciding the application, direct the State to give notice of the application to
a stated person or class of persons in the way, and within the time, the court
considers appropriate.
`(4) A person whose property is the subject of the application, and
anyone else who claims to have an interest in the property, may appear at
the hearing of the application.'.'.
3 After clause 46--
At page 43, after line 10--
insert--
`46A Amendment of s 48 (When Supreme Court may exclude
prescribed respondent's property)
`Section 48--
insert--
`(3) The Supreme Court may require the prescribed respondent to give
security satisfactory to the court to meet any liability that may be imposed
on the prescribed respondent under this Act.'.
`46B Amendment of s 50 (When Supreme Court may exclude
applicant's property)
`Section 50--
insert--
3
Evidence (Protection of Children) Amendment
Bill 2003
`(4) The Supreme Court may require the applicant to give the
undertakings about the applicant's property the court considers
appropriate.'.
`46C Insertion of new ch 2, pt 3, div 7A
`After section 50--
insert--
`Division 7A--Revocation of restraining order
`50A Application to revoke restraining order
`(1) A person whose property is the subject of a restraining order and
who was not given notice of the application for the restraining order may
apply to the Supreme Court to revoke the order.
`(2) The application must be made within 28 days or, with the approval
of the court, the further period, of not more than 3 months, after the person
is notified of the making of the restraining order.
`(3) The applicant must give to the State written notice of the making of
the application and the grounds for the application.
`(4) The restraining order remains in force until the court revokes the
order or the order otherwise stops having effect.
`(5) The State may present additional material to the court relating to the
application to revoke the restraining order.
`(6) After considering the application, the court may revoke the
restraining order if satisfied, on the facts before the court, there would be
no basis for making a restraining order in relation to the property.
`50B Notice of revocation of restraining order
`(1) On the revocation of a restraining order under section 50A, the
State must give notice of the revocation to--
(a) each person whose property was restrained under the order, if
known; and
(b) anyone else who was affected by the order.
4
Evidence (Protection of Children) Amendment
Bill 2003
`(2) Subsection (1) does not require the State to notify the applicant for
the revocation of the restraining order of the revocation of the order.'.
`46D Amendment of s 120 (Notice of application for restraining order)
`(1) Section 120(1), `The'--
omit, insert--
`Subject to section 121(2), the'.
`(2) Section 120(2) to (4) and note--
omit.
`46E Replacement of s 121 (Who may be present at hearing of
application made without notice)
`Section 121--
omit, insert--
`121 Hearing of application
`(1) The Supreme Court must not hear an application for a restraining
order unless satisfied the person whose property is the subject of the
application has received reasonable notice of the application.
`(2) Despite subsection (1), the court must consider the application
without notice having been given if the DPP asks the court to do so.
`(3) However, the Supreme Court may, at any time before finally
deciding the application, direct the State to give notice of the application to
a stated person or class of persons in the way and within the time the court
considers appropriate.
`(4) A person whose property is the subject of the application, and
anyone else who claims to have an interest in the property, may appear at
the hearing of the application.'.'.
4 After clause 48--
At page 43, after line 23--
insert--
5
Evidence (Protection of Children) Amendment
Bill 2003
`48A Amendment of s 139 (Supreme Court may exclude prescribed
respondent's property from restraining order)
Section 139--
insert--
`(4) The Supreme Court may require the prescribed respondent to give
security satisfactory to the court to meet any liability that may be imposed
on the prescribed respondent under this Act.
`48B Amendment of s 140 (Supreme Court may exclude other
property from restraining order)
`Section 140--
insert--
`(6) The Supreme Court may require the applicant to give the
undertakings about the applicant's property the court considers
appropriate.'.'.
5 After clause 51--
At page 45, after line 14--
insert--
`PART 9A--AMENDMENT OF DRUG
REHABILITATION (COURT DIVERSION) ACT 2000
`51A Act amended in pt 9A
This part amends the Drug Rehabilitation (Court Diversion) Act 2000.
`51B Amendment of s 7A (What is a "disqualifying term of
imprisonment")
Section 7A(1), `6 months'--
omit, insert--
`1 year'.'.