Victorian Consolidated Legislation

Evidence Act 1958 - SECT 41G

Pre-recording evidence at special hearing

41G. Pre-recording evidence at special hearing



(1) This section applies to a legal proceeding, other than a committal
proceeding, that relates (wholly or partly) to a charge for a sexual offence.

(2) Subject to subsection (3), the whole of the evidence of a complainant who
was a child or who had a cognitive impairment at the time at which the
proceeding was commenced (including cross-examination and re-examination) must
be-

   (a)  taken at a special hearing under this section and video recorded; and

   (b)  presented to the court in the form of that recording.

(3) The court may, on the application of the prosecution, direct that
subsection (2) is not to apply and that the complainant is to give direct
testimony in the proceeding if the court is satisfied that the complainant-

   (a)  is aware of his or her right to have his or her evidence taken at a
        special hearing under this section and video recorded; and

   (b)  is able and wishes to give direct testimony in the proceeding.





(4) If a special hearing is to be held, it must be held-

   (a)  within 3 months after the day on which the defendant is committed for
        trial; and



   (b)  before the court at which presentment is made.

Note See section 359A of the Crimes Act 1958 regarding time limits on certain
prosecutions.

(5) The court may fix a longer time for the holding of a special hearing if
the court is satisfied that it is in the interests of justice to do so because
of the existence of exceptional circumstances.

(6) At a special hearing-

   (a)  the defendant and his or her legal practitioner are to be present in
        the courtroom;

   (b)  the defendant-

   (i)  is not to be in the same room as the complainant when the
        complainant's evidence is being taken; but

   (ii) is entitled to see and hear the complainant while the complainant is
        giving evidence and to have at all times the means of communicating
        with his or her legal practitioner;

   (c)  no person, other than a person authorised by the court, is to be
        present in the same room as the complainant when the complainant's
        evidence is being taken;

   (d)  the evidence of the complainant is to be given by means of
        closed-circuit television that enables communication between the room
        in which the complainant is present and the courtroom;

   (e)  except as provided by this section, the usual rules of evidence apply.

(7) The room in which the complainant's evidence is taken is to be taken to be
part of the courtroom while the complainant is there for the purpose of giving
evidence.