EVIDENCE ACT 1929 - SECT 34LA
EVIDENCE ACT 1929 - SECT 34LA
34LA—Admissibility of evidence of out of court statements by certain
alleged victims of sexual offences
(1) In proceedings in
which a person is charged with a sexual offence, a statement not made in oral
evidence in the proceedings (an "out of court statement ) is admissible as
evidence of any matter stated if—
(a) oral
evidence given in the proceedings by the person who made the out of court
statement would be admissible as evidence of that matter; and
(b) the
person who made the out of court statement is identified to the court's
satisfaction; and
(c) each
of the conditions specified in subsection (2) is satisfied.
(2) The conditions are
as follows:
(a) the
person who made the out of court statement is the alleged victim of the
sexual offence;
(b) the
person will not be called as a witness in the proceedings because the judge is
satisfied that, at the time the person made the out of court statement, the
person was—
(i)
a young child; or
(ii)
a person with a disability that adversely affects the
person's capacity to give a coherent account of the person's experiences or to
respond rationally to questions;
(c) the
out of court statement was not made by the person to an investigating or other
authority as part of a formal interview process conducted in relation to the
alleged offence;
(d)
after considering the out of court statement, the circumstances in which it
was made and any other relevant factor, the judge is of the opinion that the
evidence has sufficient probative value to justify its admission.
(3) Subsection (2)(b)
applies regardless of the age of the person or the person's capacity at the
time the judge is considering whether to admit the evidence of the out of
court statement in the proceedings.
(4) Evidence of an out
of court statement admitted under this section may be used to prove the truth
of the facts asserted in the statement.
(5) If evidence of an
out of court statement is admitted under this section, the judge must warn the
jury to treat the evidence of the out of court statement with particular care
because it has not been tested by way of examination or cross-examination of
the alleged victim.