CRIMES (SEXUAL OFFENCES) ACT 2006 (NO 2 OF 2006) - SECT 38 New Division 3AA inserted

CRIMES (SEXUAL OFFENCES) ACT 2006 (NO 2 OF 2006) - SECT 38

After section 41 of the Evidence Act 1958 insert —

'Division 3AA—Examination and Cross-Examination of Certain Witnesses

        41A.     Definition

In this Division—

"child complainant" means a complainant, in relation to a charge for a sexual offence, who is a child.

        41B.     Application of Division

If a provision of this Division is inconsistent with a provision of Division 3, the provision of this Division prevails to the extent of the inconsistency.

    Note:     Section 32AB sets out guiding principles for interpreting and applying this Division.

        41C.     Evidence of specialised knowledge to determine competency

If, in a legal proceeding that relates (wholly or partly) to a charge for a sexual offence, a child or a person with a cognitive impairment is called as a witness, the court may receive evidence of a person's opinion that is based on that person's specialised knowledge (acquired through training, study or experience) for the purpose of determining whether or not the child or person is competent to give sworn or unsworn evidence.

    Note:     Section 23 provides for the giving of evidence by children and persons with a cognitive impairment.    

        41D.     Evidence of previous representations made by child complainants

    (1)     If, in a legal proceeding that relates (wholly or partly) to a charge for a sexual offence, a child complainant who is under 17 years of age and who has made a previous representation is available to give evidence—

        (a)     about the existence of a fact of which he or she had personal knowledge and that he or she intended to assert by the representation; or

        (b)     if the child complainant's credibility is relevant, to support his or her credibility—

the hearsay rule, subject to sub-section (2), does not apply to evidence of the representation that is given by—

        (c)     the child complainant; or

        (d)     a person who saw, heard or otherwise perceived the representation being made.

    (2)     Sub-section (1) does not apply unless the court is satisfied that the evidence is relevant to a fact in issue and is sufficiently probative, having regard to the nature and content of the representation and the circumstances in which it was made.

    (3)     A witness has personal knowledge of the asserted fact if his or her knowledge of that fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.

    (4)     Evidence of the kind referred to in sub-section (1) is admissible for either or both of the following purposes—

        (a)     to prove the truth of the fact contained in the representation; or

        (b)     to support the credibility of the child complainant as a witness.

    (5)     If the court receives evidence of the kind referred to in sub-section (1), the court must warn the jury that evidence of that kind may not be as reliable as original evidence.

    (6)     Nothing in this section takes away from, or limits, any discretion a court has to exclude evidence.

        41E.     Alternative arrangements for giving of evidence in certain proceedings

    (1)     Subject to sub-section (2), in a legal proceeding that relates (wholly or partly) to a charge for a sexual offence, the court must direct that any of the following alternative arrangements be made for the giving of evidence by a child complainant or a complainant with a cognitive impairment—

        (a)     permitting the evidence to be given from a place other than the courtroom by means of closed-circuit television or other facilities that enable communication between that place and the courtroom;

        (b)     using screens to remove the defendant from the witness' direct line of vision;

        (c)     permitting a person chosen by the witness and approved by the court for this purpose, to be beside the witness while he or she is giving evidence for the purpose of providing emotional support to him or her.

    (2)     The court must direct that the alternative arrangement referred to in sub-section (1)(a) be made unless—

        (a)     the court is satisfied that the complainant—

              (i)     is aware of his or her right to give evidence in accordance with the arrangement referred to in sub-section (1)(a); and

              (ii)     is able and wishes to give evidence in the courtroom; and

        (b)     the court, on the application of the prosecution, determines not to direct that the arrangement referred to in sub-section (1)(a) be made.

    (3)     The court must direct that any evidence given by a complainant in accordance with the arrangement referred to in sub-section (1)(a) is recorded.    

    (4)     If a court directs that alternative arrangements be made for the giving of evidence by a witness, the judge must warn the jury not to draw any inference adverse to the defendant or give the evidence any greater or lesser weight because of the making of those arrangements.

    (5)     Any place outside the courtroom where a witness is permitted to give evidence under this section is to be taken to be part of the courtroom while the witness is there for the purpose of giving evidence.

    (6)     The court may at any time in the course of the proceeding vary or revoke a direction made under this section either of its own motion or on the application of a party to the proceeding.

        41F.     Improper questions

    (1)     If, during cross-examination, a witness who is under the age of 18 years or who has a cognitive impairment is asked a question that, in the opinion of the court, is—

        (a)     confusing or misleading; or

        (b)     phrased in inappropriate language; or

        (c)     annoying, harassing, intimidating, offensive, oppressive or unduly repetitive—

whether because of its content, or the manner in which it is structured or sequenced or the tone in which it is put, having regard to the matters set out in sub-section (2), the court must disallow the question or warn the witness that he or she is not obliged to answer the question.

    (2)     Without limiting the matters that the court may have regard to for the purposes of sub-section (1), the court must consider—

        (a)     any relevant condition or characteristic of the witness, including his or her age, cultural background, personality, education and level of understanding; and

        (b)     any cognitive impairment that the witness is, or appears to be, subject to.

    (3)     Nothing in this section takes away from, or limits, section 39 or 40.

        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 sub-section (3), the whole of the evidence of a child complainant or of a complainant with a cognitive impairment (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 sub-section (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 21 days after the day on which the defendant is committed for trial; and

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

    (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.

        41H.     Use of pre-recorded evidence

    (1)     Subject to sub-section (2), a recording referred to in section 41G is admissible in evidence as if its contents were the direct testimony of the witness—

        (a)     in the proceeding; and

        (b)     unless the relevant court otherwise orders, in—

              (i)     any rehearing or re-trial of, or appeal from, the proceeding; or

              (ii)     another proceeding in the same court for the relevant charge or for another charge arising out of the same, or the same set of, circumstances; or

              (iii)     a civil proceeding arising from the same facts as those on which the charge for the relevant offence is founded.

    (2)     The court may rule as inadmissible the whole or any part of the contents of a recording and, if so, the court may direct that the recording be edited or altered to delete any part of it that is inadmissible.

    (3)     Subject to sub-section (2), the whole of a recording referred to in section 41G must be heard by the court and the jury.

    (4)     The admissibility of the recording of the evidence of a child is not affected only because the child attains the age of 18 years before the evidence is presented in a proceeding.

    (5)     The judge must warn the jury not to draw any inference adverse to the defendant or give the evidence of the witness any greater or lesser weight because it is recorded.

    (6)     Subject to sub-section (9), if under this section the recorded evidence of a witness is admitted into evidence in a proceeding, the witness is not required to attend the proceeding unless required to do so for cross-examination or re-examination.

    (7)     A witness whose evidence is recorded under section 41G cannot be cross-examined or re-examined without leave.

    (8)     A court must not grant leave to cross-examine a witness referred to in sub-section (7) unless satisfied that—

        (a)     the defendant is seeking leave because of becoming aware of a matter of which he or she could not reasonably have been aware at the time of the recording; or

        (b)     if the witness were giving direct testimony in the proceeding, he or she could, in the interests of justice, be recalled to give further evidence; or

        (c)     it is otherwise in the interests of justice to permit the witness to be cross-examined or re-examined.

    (9)     If leave is granted under sub-section (8), the witness must attend the proceeding to be cross-examined or re-examined.'.

__________________

See:

Act No.

51/1989.

Reprint No. 11

as at 1 July 2005

and amending

Act Nos 77/2004, 2/2005, 16/2005, 18/2005, 19/2005, 45/2005, 62/2005 and 69/2005.

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