CRIMINAL PROCEDURE AMENDMENT (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) ACT 2009 (NO. 68 OF 2009) - SECT 50 New Part 8.2 inserted

CRIMINAL PROCEDURE AMENDMENT (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) ACT 2009 (NO. 68 OF 2009) - SECT 50

New Part 8.2 inserted

After Part 8.1 of Chapter 8 of the Criminal Procedure Act 2009 insert —

" PART 8.2—WITNESSES

Division 1—Guiding principles

338 Guiding principles

It is the intention of Parliament that in interpreting and applying this Part in any criminal proceeding that relates (wholly or partly) to a charge for a sexual offence, courts are to have regard to the fact that—

(a) there is a high incidence of sexual violence within society; and

(b) sexual offences are significantly under-reported; and

(c) a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and

(d) offenders are commonly known to their victims; and

(e) sexual offences often occur in circumstances where there is unlikely to be any physical sign of an offence having occurred.

Division 2—Evidence concerning complainant

339 Application of Division

(1) This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence.

(2) This Division applies to all complainants in a criminal proceeding referred to in subsection (1).

(3) This Division applies despite anything in this or any other Act or any rule of law to the contrary.

340 Definition

In this Division—

"sexual history evidence" means evidence that relates to or tends to establish the fact that the complainant—

(a) was accustomed to engaging in sexual activities; or

(b) had freely agreed to engage in sexual activity (other than that to which the charge relates) with the accused person or another person.

341 Prohibition on questions and evidence concerning complainant's chastity

The court must not allow any questions as to, or admit any evidence of, the general reputation of the complainant with respect to chastity.

342 Restriction on questions and evidence concerning complainant's sexual activities

The complainant must not be cross-examined, and the court must not admit any evidence, as to the sexual activities (whether consensual or non-consensual) of the complainant (other than those to which the charge relates), without the leave of the court.

343 Admissibility of sexual history evidence

Sexual history evidence is not admissible to support an inference that the complainant is the type of person who is more likely to have consented to the sexual activity to which the charge relates.

344 Application for leave

An application for leave under section 342—

(a) in the case of a summary proceeding, must be filed with the Magistrates' Court and served on the informant in accordance with section 392 at least 7 days before the summary hearing;

(b) in the case of a committal proceeding, must be filed with the Magistrates' Court and served on the informant and the DPP in accordance with section 392 at least 7 days before the committal hearing;

(c) in the case of a trial, must be filed with the County Court or the Supreme Court (as the case requires) and served on the DPP in accordance with section 392—

(i) at least 14 days before the day on which the trial is listed to commence; or

(ii) if a special hearing is to be held, at least 14 days before that hearing;

(d) in the case of a sentencing hearing, must be filed with the relevant court and served on the informant or the DPP (as the case requires) in accordance with section 392 at least 7 days before the sentencing hearing is listed to commence.

345 Application for leave out of time

If it is in the interests of justice to do so, the court may hear and determine an application for leave under section 342 after the expiry of the relevant time limit specified in section 344.

346 Contents of application for leave

(1) An application for leave under section 342 must be in writing and set out the matters required by subsection (2) or (3), as the case requires.

(2) An application for leave to cross-examine the complainant as to the sexual activities of the complainant must set out—

(a) the initial questions sought to be asked of the complainant; and

(b) the scope of the questioning sought to flow from the initial questioning; and

(c) how the evidence sought to be elicited from the questioning has substantial relevance to facts in issue or why it is proper matter for cross-examination as to credit.

(3) An application for leave to admit evidence as to the sexual activities of the complainant must—

(a) identify the evidence that is sought to be admitted; and

(b) set out how the evidence has substantial relevance to facts in issue.

347 Waiver of requirement to apply for leave in writing

If it is in the interests of justice to do so, the court may waive the requirement that an application for leave under section 342 be made in writing.

348 Hearing of application for leave

An application for leave under section 342 must be heard in the absence of the jury (if any) and, if the accused so requests, in the absence of the complainant.

349 Determination of application for leave during summary hearing, committal proceeding or trial

In the course of a summary hearing, committal proceeding or trial, the court must not grant leave under section 342 unless it is satisfied that the evidence has substantial relevance to a fact in issue and that it is in the interests of justice to allow the cross-examination or to admit the evidence, having regard to—

(a) whether the probative value of the evidence outweighs the distress, humiliation and embarrassment that the complainant may experience as a result of the cross-examination or the admission of the evidence, in view of the age of the complainant and the number and nature of the questions that the complainant is likely to be asked; and

(b) the risk that the evidence may arouse in the jury discriminatory belief or bias, prejudice, sympathy or hostility; and

(d) the right of the accused to fully answer and defend the charge.

Note

Section 352 limits the relevance of sexual history evidence.

350 Determination of application for leave during sentencing hearing

In the course of a sentencing hearing, the court must not grant leave under section 342 unless it is satisfied that the evidence has substantial relevance to the issue of appropriate sentence and the offender—

(a) has pleaded guilty to all sexual offences charged against the offender; or

(b) has been found guilty of all sexual offences charged against the offender.

Note

Section 352 limits the relevance of sexual history evidence.

351 Court must state reasons if leave granted

(1) If the court grants leave under section 342 it—

(a) must state in writing the reasons for granting leave; and

(b) cause those reasons to be entered in the records of the court.

(2) The failure of a court to comply with subsection (1) does not invalidate any order made by it.

352 Limitation on sexual history evidence

Sexual history evidence is not to be regarded—

(a) as having a substantial relevance to the facts in issue by virtue of any inferences it may raise as to general disposition; or

(b) as being proper matter for cross-examination as to credit unless, because of special circumstances, it would be likely materially to impair confidence in the reliability of the evidence of the complainant.

Division 3—Cross-examination of protected witnesses

353 Application of Division

(1) This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for—

(a) a sexual offence; or

(b) an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008 .

(2) This Division applies to a protected witness in a criminal proceeding referred to in subsection (1).

354 Definitions

In this Division—

"family member", in relation to the complainant or the accused, includes—

(a) a person who is or has been married to the complainant or the accused; and

(b) a person who has or has had an intimate personal relationship with the complainant or the accused; and

(d) a child who normally or regularly resides with the complainant or the accused; and

(e) a guardian of the complainant or the accused; and

(f) another person who is or has been ordinarily a member of the household of the complainant or the accused;

"protected witness" means—

(a) the complainant; or

(b) a family member of the complainant; or

(d) any other witness whom the court declares under section 355 to be a protected witness.

355 Court may declare witness to be protected witness

The court may at any time declare a witness to be a protected witness.

356 Protected witness not to be cross-examined by accused in person

A protected witness must not be cross-examined by the accused in person.

357 When accused is not legally represented

(1) If the accused is not legally represented, the court must—

(a) inform the accused and the jury (if any) that the accused is not permitted personally to cross-examine a protected witness; and

(b) ask the accused whether the accused has sought legal representation for the cross-examination of a protected witness; and

(c) if satisfied that the accused has not had a reasonable opportunity to obtain legal representation, grant an adjournment if so requested by the accused.

(2) If the accused does not obtain legal representation for the cross-examination of a protected witness (after being given a reasonable opportunity to do so), the court must order Victoria Legal Aid to provide legal representation for the accused for that purpose.

(3) Despite anything in the Legal Aid Act 1978 , Victoria Legal Aid must provide legal representation in accordance with an order under subsection (2).

(4) A legal practitioner provided by Victoria Legal Aid must act in the best interests of the accused if the accused does not give any instructions to that legal practitioner.

(5) If the accused refuses the legal representation provided under subsection (3), or otherwise refuses to co-operate, the court must warn the accused that the accused will not be permitted to adduce evidence in relation to a fact in issue in order to contradict the evidence of a protected witness unless the evidence on which the accused intends to rely has been put to the protected witness during cross-examination.

358 Jury warning concerning legal representation for cross-examination

If the accused is only legally represented for the cross-examination of a protected witness, the trial judge must warn the jury—

(a) that it is routine practice for an unrepresented accused to obtain or be provided with legal representation for the cross-examination of a protected witness; and

(b) that no adverse inference may be drawn against the accused as a result of the cross-examination not being conducted by the accused in person; and

(c) that the evidence given under cross-examination is not to be given any greater or lesser weight as a result of the cross-examination not being conducted by the accused in person.

Division 4—Alternative arrangements for giving evidence

359 Application of Division

(1) This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for—

(a) a sexual offence; or

(b) an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008 .

(2) This Division applies to all witnesses (including complainants) in a criminal proceeding referred to in subsection (1).

(3) This Division applies at any stage of the criminal proceeding, including an appeal or rehearing.

360 Alternative arrangements for giving evidence

The court may direct that alternative arrangements be made for the giving of evidence by a witness, including arrangements—

(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 accused from the direct line of vision of the witness;

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

(d) permitting only persons specified by the court to be present while the witness is giving evidence;

(e) requiring legal practitioners not to robe;

(f) requiring legal practitioners to be seated while examining or cross-examining the witness.

Notes

1 Section 337(1) enables this direction to be made by the court on the application of a party or on its own motion.

2 Section 337(2) provides that this direction may be varied or revoked.

361 Jury warning concerning alternative arrangements

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

362 Evidence given by closed-circuit television or other facilities

(1) This section applies to arrangements referred to in section 360(a) that are directed to be made under that section.

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

(3) The court must direct that any evidence given by the witness is recorded.

(4) The court may make any order it considers appropriate to enable the witness to view any place or thing, or identify any person or thing, for the purposes of the proceeding or the evidence of the witness.

363 When court must direct use of closed-circuit television or other facilities for complainant

If the witness is a complainant, the court must direct that an arrangement referred to in section 360(a) be made unless—

(a) the prosecution applies for the complainant to give evidence in the courtroom; and

(b) the court is satisfied that the complainant—

(i) is aware of the right of the complainant to give evidence in another place by closed-circuit television or other facilities; and

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

364 When court must direct use of screens for complainant

If the witness is a complainant and is to give evidence in the courtroom, the court must direct that an arrangement referred to in section 360(b) be made unless the court is satisfied that the complainant—

(a) is aware of the right of the complainant to give evidence while screens are used to remove the accused from the direct line of vision of the complainant; and

(b) does not wish a screen to be so used.

365 When court must direct presence of support person for complainant

(1) If the witness is a complainant, the court must direct that an arrangement referred to in section 360(c) be made unless the court is satisfied that the complainant—

(a) is aware of the right of the complainant to have a support person when giving evidence; and

(b) does not wish to have a support person.

(2) Subsection (1) applies whether the witness is to give evidence in the courtroom or in another place.

Division 5—Use of recorded evidence-in-chief of children and cognitively impaired witnesses in sexual offence and assault matters

366 Application of this Division

(1) This Division applies to a criminal proceeding (other than a committal proceeding) that relates (wholly or partly) to a charge for—

(a) a sexual offence; or

(b) an indictable offence which involves an assault on, or injury or a threat of injury to, a person.

Note

For committal proceedings see Chapter 4.

(2) This Division applies to a witness in a criminal proceeding referred to in subsection (1) if the witness is—

(a) a person under the age of 18 years; or

(b) a person with a cognitive impairment.

(3) In this Division, "witness" means a witness referred to in subsection (2).

367 Use of recorded evidence-in-chief

A witness may give evidence-in-chief (wholly or partly) in the form of an audio or audiovisual recording of the witness answering questions put to him or her by a person prescribed by the regulations for the purposes of this section.

368 Admissibility of recorded evidence-in-chief

(1) Subject to subsection (3), a recording referred to in section 367 is admissible as evidence in a summary hearing, special hearing or trial in the proceeding as if its contents were the direct testimony of the witness if—

(a) a transcript of it was served personally on the accused in accordance with section 391, or on the legal practitioner representing the accused in accordance with section 394—

(i) in the case of a summary proceeding, at least 14 days before the contest mention hearing or, if a contest mention hearing is not held, the summary hearing;

(ii) in the case of a trial, at least 14 days before the day on which the trial is listed to commence or, if a special hearing is to be held, at least 14 days before that hearing; and

(b) the court is satisfied that the accused and the legal practitioner of the accused were given, in accordance with the regulations, a reasonable opportunity to listen to and, in the case of an audiovisual recording, view the recording; and

(i) identifies himself or herself and attests to the truthfulness of the contents of the recording; and

(ii) is available for cross-examination and re-examination.

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

(3) The court may rule as inadmissible the whole or any part of the contents of a recording.

Division 6—Procedure and rules for children and cognitively impaired complainants

369 Application of Division

(1) This Division applies to a trial in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence.

(2) This Division applies to a complainant in a criminal proceeding referred to in subsection (1) if, at the time at which the proceeding commenced, the complainant—

(a) was under the age of 18 years; or

(b) had a cognitive impairment.

(3) In the Division, "complainant" means a complainant referred to in subsection (2).

370 Special hearing for pre-recording evidence

(1) Subject to subsection (2), the whole of the evidence (including cross-examination and re-examination) of a complainant must be—

(a) given at a special hearing under this Division and recorded as an audiovisual recording; and

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

(2) On the application of the prosecution, the court may direct that subsection (1) 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 the right of the complainant to have his or her evidence taken at a special hearing under this Division and audiovisually recorded; and

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

Note

Division 4 provides that the court may make alternative arrangements for the giving of direct testimony.

371 Time limits for special hearing

(1) If a special hearing is to be held, it must be held—

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

(b) before the court at which the indictment is filed.

Note

Section 212 imposes time limits for commencing trials for sexual offences.

(2) The court may extend the time for holding a special hearing if, because of the existence of exceptional circumstances, the court considers that it is in the interests of justice to do so.

(3) The court may extend time under subsection (2) before or after the time expires.

(4) More than one extension of time may be granted under subsection (2).

372 Conduct of special hearing

(1) At a special hearing—

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

(b) the accused—

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

(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 courtroom or 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 or other facilities that enable communication between the room in which the complainant is present and the courtroom;

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

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

373 Form in which recording of special hearing is to be tendered

(1) A recording referred to in section 370(1) that is tendered as evidence by the prosecution must be the best available record, or be comprised of the best available records, of the evidence of the complainant.

(2) In subsection (1)—

"the best available record" of the evidence, or any part of the evidence, means an audiovisual recording of the evidence.

(3) In exceptional circumstances and having regard to whether the accused would be unfairly prejudiced, the court may admit as evidence an audio recording of the evidence, or any part of the evidence, if an audiovisual recording of the evidence is not available.

374 Admissibility of evidence from special hearing

(1) In this section—

"recording" means a recording referred to in section 370(1).

(2) Subject to subsection (3), a recording is admissible in evidence as if its contents were the direct testimony of the complainant—

(a) in the proceeding; and

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

(i) any new trial of, or appeal from, the proceeding; or

s. 50

(ii) another proceeding in the same court for the charge for a sexual offence or a charge for a related offence; or

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

(3) 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.

Note

A party may apply for a ruling under subsection (3): section 337.

(4) Subject to subsection (3), the whole of a recording must be heard by the court.

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

(6) Subject to section 376(3), if under this section a recording is admitted into evidence in a proceeding, the complainant is not required to attend the proceeding unless required to do so for cross-examination or re-examination.

375 Jury warning as to recording of special hearing

If a recording of a special hearing is admitted into evidence under section 374, the trial judge must warn the jury—

(a) that it is routine practice for the evidence of a complainant who is under the age of 18 years or has a cognitive impairment to be recorded at a special hearing before the trial; and

(b) that no adverse inference may be drawn against the accused as a result of the evidence being recorded; and

(c) that the evidence of the complainant is not to be given any greater or lesser weight as a result of the evidence being recorded.

376 Cross-examination of complainant

(1) A complainant whose evidence is recorded under section 370 cannot be cross-examined or re-examined without leave.

(2) A court must not grant leave to cross-examine a complainant referred to in subsection (1) unless the court is satisfied that—

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

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

(3) If leave is granted under subsection (2), the complainant must attend the proceeding to be cross-examined or re-examined.

377 Exception to hearsay rule—previous representations made by complainant under 18 years

(1) In this section—

"asserted fact" has the same meaning as in the Evidence Act 2008 ;

"hearsay rule" has the same meaning as in the Evidence Act 2008 ;

"previous representation" has the same meaning as in the Evidence Act 2008 .

(2) This section applies in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence if a complainant under the age of 18 years who made a previous representation is available to give evidence about an asserted fact or the complainant's credibility is relevant.

(3) Subject to subsection (4), if a complainant has been or is to be called to give evidence, the hearsay rule does not apply to evidence to support an asserted fact or the complainant's credibility that is given by—

(a) the complainant; or

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

(4) Subsection (3) 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.

(5) 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.

(6) Evidence of the kind referred to in subsection (3) is admissible to support the credibility of the complainant as a witness.

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

Division 7—Admission of recorded evidence of complainant in sexual offence matters

378 Application of Division

(1) This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence.

(2) This Division applies to a complainant in a criminal proceeding referred to in subsection (1), other than a complainant whose evidence has been taken at a special hearing under Division 6.

(3) This Division applies to a recording of the evidence (including cross-examination and re-examination) of a complainant given during a trial in a criminal proceeding referred to in subsection (1).

(4) If the jury is discharged without verdict before a complainant completes his or her evidence, this Division applies to a recording of the partial evidence of the complainant.

(5) In this Division—

"complainant" means a complainant referred to in subsection (2);

"recording" means a recording referred to in subsection (3) or (4).

379 Admissibility of recording of complainant's evidence

Subject to section 381, a recording is admissible in evidence as if its contents were the direct testimony of the complainant—

(a) in the proceeding; and

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

(i) any new trial of, or appeal from, the proceeding; or

(ii) another proceeding in the same court for the charge for a sexual offence or a charge for a related offence; or

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

380 Prosecution to give notice of intention to tender recording

(1) If the prosecution intends to apply to tender a recording as evidence in a proceeding referred to in section 379, the prosecution must serve on the accused and file in court written notice of that intention at least 21 days before the day on which the trial or hearing is listed to commence.

(2) The court may dispense with or vary a requirement imposed by subsection (1).

381 Admission of recording of evidence of complainant

(1) The court may admit a recording of the evidence of the complainant if it is in the interests of justice to do so, having regard to—

(a) whether the complainant's recorded evidence is complete, including cross-examination and re-examination;

(b) the effect of editing any inadmissible evidence from the recording;

(d) whether the accused would be unfairly disadvantaged by the admission of the recording;

(e) any other matter that the court considers relevant.

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

382 Jury warning as to recorded evidence of complainant

If a recording is admitted into evidence under section 381, the trial judge must warn the jury—

(a) that no adverse inference may be drawn against the accused as a result of the evidence being recorded; and

(b) that the evidence of the complainant is not to be given any greater or lesser weight as a result of the evidence being recorded.

383 Attendance of complainant

Subject to sections 384 and 385, if a recording is admitted into evidence in a proceeding, the complainant is not required to attend the proceeding unless required to do so to give further evidence.

384 Direct testimony in addition to recording

(1) On the application of the prosecution, the court may direct that the complainant is to give direct testimony additional to a recording admitted into evidence if the court is satisfied that—

(a) the complainant is able and wishes to give direct testimony; and

(b) it is in the interests of justice to do so.

(2) A complainant may be cross-examined and re-examined in relation to any direct testimony given by the complainant in response to a direction under subsection (1).

Note

Any other cross-examination requires leave under section 385.

385 Cross-examination of complainant

(1) Subject to section 384(2), if a recording of the evidence of the complainant is admitted into evidence in a proceeding, the complainant cannot be cross-examined or re-examined without leave.

(2) A court must not grant leave to cross-examine a complainant unless the court is satisfied that—

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

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

(3) If leave is granted under subsection (2), the complainant must attend the proceeding to be cross-examined or re-examined.

386 Form in which recording of complainant's evidence is to be tendered

(1) A recording that is tendered as evidence by the prosecution under this Division must be the best available record, or be comprised of the best available records, of the evidence of the complainant.

(2) In subsection (1)—

"the best available record" of the evidence, or any part of the evidence, means an audiovisual recording of the evidence.

387 Exception to hearsay rule

(1) In this section—

"hearsay rule" has the same meaning as in the Evidence Act 2008 .

(2) The hearsay rule does not prevent—

(a) the admission of a recording in accordance with this Division; or

(b) the use of the recording to prove the existence of a fact that the complainant intended to assert by a representation made in the recorded evidence.

Division 8—Miscellaneous

388 Evidence of specialised knowledge in certain cases

Despite any rule of law to the contrary, in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence, 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) of—

(a) the nature of sexual offences; and

(b) the social, psychological and cultural factors that may affect the behaviour of a person who has been the victim, or who alleges that he or she has been the victim, of a sexual offence, including the reasons that may contribute to a delay on the part of the victim to report the offence.

389 Audiovisual link evidence from overseas in certain proceedings

(1) This section applies to a criminal proceeding that relates (wholly or partly) to a charge for an offence against section 49A(1) of the Crimes Act 1958 .

(2) The court may, on the application of a party to the criminal proceeding, direct that a witness give evidence by audiovisual link if—

(a) the witness will give the evidence from outside Australia; and

(b) the witness is not an accused in the proceeding; and

(d) the court is satisfied that attendance of the witness at the court to give the evidence would—

(i) cause unreasonable expense or inconvenience; or

(ii) cause the witness psychological harm or unreasonable distress; or

(iii) cause the witness to become so intimidated or distressed that his or her reliability as a witness would be significantly reduced; and

(e) the court is satisfied that it is consistent with the interests of justice that the evidence be taken by audiovisual link.

s. 50

(3) A witness can give evidence under a direction under this section only if the courtroom or other place in Victoria where the court is sitting ( the Victorian point ) and the place where the evidence is given ( the overseas point ) are equipped with audiovisual facilities that—

(a) enable all persons at the Victorian point that the court considers appropriate, to see and hear the witness give the evidence; and

(b) enable all persons at the overseas point that the court considers appropriate, to see and hear appropriate persons at the Victorian point.

(4) The place where a witness gives evidence under a direction under this section is taken to be part of the courtroom or other place in Victoria where the court is sitting while the witness is there for the purpose of giving evidence.

(5) An oath or affirmation to be sworn or made by a witness who is to give evidence under a direction under this section may be administered either—

(a) by means of the audiovisual link, in as nearly as practicable the same way as if the witness were to give the evidence at the courtroom or other place in Victoria where the court is sitting; or

(b) at the direction of, and on behalf of, the court at the place where the witness is to give the evidence by a person authorised by the court.

(6) A court may make any orders that are just for the payment of expenses incurred in connection with the giving of evidence under a direction by the court under this section.

(7) This section does not prevent any other law, or any rule or regulation made under any other law, about taking evidence of a witness outside Australia from applying for the purposes of a proceeding to which this section applies.

(8) Nothing in this section limits the application of this Part to a charge for an offence against section 49A(1) of the Crimes Act 1958 .

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CRIMINAL PROCEDURE AMENDMENT (CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) ACT 2009 (NO. 68 OF 2009) - SECT 50 New Part 8.2 inserted