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Western Australia
Criminal Law Amendment (Sexual Assault and
Other Matters) Bill 2004
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Amendments to The Criminal
Code
3. The Act amended 3
4. Section 585 amended 3
5. Section 611A amended 5
6. Section 688 amended 5
7. Section 690 amended 6
8. Section 695 amended 6
Part 3 -- Amendments to the Evidence
Act 1906
9. The Act amended 7
10. Sections 19A to 19M inserted 7
11. Section 26 replaced 19
12. Section 27 amended 19
13. Section 31A inserted 20
14. Section 106A amended and consequential
amendments 21
15. Section 106B amended 23
16. Section 106E amended 23
17. Section 106F amended 23
18. Section 106G amended 23
19. Section 106H amended 24
20. Sections 106HA to 106HD inserted 24
315--2 page i
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Contents
21. Section 106I amended 29
22. Section 106J repealed and consequential amendments 29
23. Section 106K amended 29
24. Section 106M amended 30
25. Section 106Q amended 30
26. Section 106R amended 31
27. Section 106S amended 31
28. Section 119 amended 31
29. Schedule 7 amended 32
Part 4 -- Transitional and validation
30. Validation of payments 34
page ii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Criminal Law Amendment (Sexual Assault and
Other Matters) Bill 2004
A Bill for
An Act to amend --
· The Criminal Code; and
· the Evidence Act 1906,
and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Criminal Law Amendment (Sexual
Assault and Other Matters) Act 2004.
5 2. Commencement
(1) This Act comes into operation on a day fixed by proclamation.
(2) Different days can be fixed under subsection (1) for different
provisions.
page 2
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Amendments to The Criminal Code Part 2
s. 3
Part 2 -- Amendments to The Criminal Code
3. The Act amended
The amendments in this Part are to The Criminal Code*.
[* Reprint 10 as at 7 February 2003 (see the Schedule to the
5 Criminal Code Act 1913 appearing as Appendix B to the
Criminal Code Compilation Act 1913).
For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 95 and
Acts Nos. 50 of 2003 and 4 of 2004.]
10 4. Section 585 amended
(1) Section 585 is amended as follows:
(a) by inserting before "Except" the subsection designation
"(1)";
(b) by deleting "offences:" and inserting instead --
15 " offences. ";
(c) by deleting "Provided that when" and inserting
instead --
"
(2) When
20 ".
(d) by deleting "In any such case" and inserting instead --
"
(3) If charges are joined under subsection (2),
";
25 (e) by deleting "But, if in any such case" and inserting
instead --
"
(4) But, if charges are joined under subsection (2) and
";
30 (f) by inserting after "court may" --
" , in proceedings under section 611A, ".
page 3
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Part 2 Amendments to The Criminal Code
s. 4
(2) At the end of section 585 the following subsections are
inserted --
"
(5) A court may decide that any likelihood of the accused
5 person being prejudiced by the joinder of charges of
offences can be guarded against by a direction to the
jury.
The court can so decide --
(a) irrespective of the nature of the offences
10 charged; and
(b) even if evidence on one of the charges is
inadmissible on another.
(6) In considering any likelihood of the accused person
being prejudiced by the joinder of charges of offences
15 of a sexual nature, a court must not have regard to the
possibility that similar fact evidence, the probative
value of which outweighs its potentially prejudicial
effect, may be the result of collusion or suggestion.
(7) Despite anything in this section and any rule of law to
20 the contrary, if charges of offences of a sexual nature
are joined under subsection (2), it shall be presumed
that those charges are triable together.
That presumption is not rebutted merely because
evidence on one charge is inadmissible on another
25 charge.
".
page 4
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Amendments to The Criminal Code Part 2
s. 5
5. Section 611A amended
After section 611A(4) the following subsection is inserted --
"
(5) Without limiting section 610, if after an indictment has
5 been presented to a court the court in proceedings
under subsection (1) --
(a) makes a requirement or gives a direction under
section 585(4); or
(b) refuses to make a requirement or give a
10 direction under section 585(4),
the court is to adjourn the trial to enable any appeal
under section 688 to be made and determined.
".
6. Section 688 amended
15 (1) Section 688 is amended by inserting before subsection (2)(b) --
"
(aa) against any decision referred to in
section 611A(5)(a); or
".
20 (2) After section 688(2) the following subsections are inserted --
"
(3) A person charged with 2 or more offences in the same
indictment may appeal to the Court of Criminal Appeal
against any decision referred to in section 611A(5)(b).
25 (4) If a person charged with 2 or more offences in the same
indictment is convicted of any of those offences, an
appeal by the person to the Court of Criminal Appeal
against that conviction on any ground that relates to the
joinder of the charges in the indictment cannot be
30 allowed on that ground if the person has already
exercised a right of appeal under subsection (3) (the
"preliminary appeal") except on the basis of relevant
page 5
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Part 2 Amendments to The Criminal Code
s. 7
matters that emerged at any time after the making of
the decision that was the subject of the preliminary
appeal.
".
5 7. Section 690 amended
After section 690(3) the following subsections are inserted --
"
(4) On an appeal under section 688(2)(aa) the Court may
affirm or reverse the decision or may make any
10 requirement or give any direction that ought to have
been made or given in the first instance.
(5) On an appeal under section 688(3) the Court may
affirm the decision or may make any requirement or
give any direction that ought to have been made or
15 given in the first instance.
".
8. Section 695 amended
After the first paragraph of section 695(1) the following
paragraph is inserted --
20 "
In the case of an appeal under section 688(2)(aa) or (3)
notice of appeal must be given within 7 days after the
decision complained of and cannot be given after a jury
is sworn.
25 ".
page 6
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Amendments to the Evidence Act 1906 Part 3
s. 9
Part 3 -- Amendments to the Evidence Act 1906
9. The Act amended
The amendments in this Part are to the Evidence Act 1906*.
[* Reprint 12 as at 10 October 2003.
5 For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 128 and
Act No. 4 of 2004.]
10. Sections 19A to 19M inserted
(1) After section 19 the following heading and sections are
10 inserted --
"
Sexual assault communications privilege
19A. Terms used in these provisions
(1) In this section and sections 19B to 19M --
15 "application for leave" means an application for leave
to disclose or require disclosure of a protected
communication in, or in connection with, any
criminal proceedings;
"counselling communication" means a
20 communication --
(a) made in confidence by a person upon or in
respect of whom sexual assault was
committed or is alleged to have been
committed (the "complainant") to another
25 person (the "counsellor") who is
counselling the complainant in relation to
any harm the complainant may have
suffered;
(b) made in confidence to or about the
30 complainant by the counsellor in the course
of the counselling process;
page 7
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Part 3 Amendments to the Evidence Act 1906
s. 10
(c) made in confidence about the complainant
by a support person in the course of the
counselling process; or
(d) made in confidence by or to the counsellor to
5 or by another person who is counselling, or
has at any time counselled, the complainant,
and includes a communication made through an
interpreter;
"counsels" has the meaning given to that term in
10 subsection (2);
"disclose" a protected communication means to
disclose, or adduce or produce anything that would
disclose --
(a) the protected communication; or
15 (b) the contents of a document recording the
protected communication;
"harm" includes actual physical bodily harm, financial
loss, stress or shock, damage to reputation or
emotional or psychological harm (such as shame,
20 humiliation and fear);
"protected communication" means a counselling
communication made by, to or about a
complainant and includes --
(a) a counselling communication made before
25 the commission, or alleged commission, of
sexual assault;
(b) a counselling communication not made in
connection with sexual assault or alleged
sexual assault or any condition arising from
30 sexual assault or alleged sexual assault; and
(c) a counselling communication made before
the protection provisions were inserted into
this Act;
page 8
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Amendments to the Evidence Act 1906 Part 3
s. 10
"protected person", in relation to a protected
communication, means --
(a) the complainant;
(b) any person who made the protected
5 communication; or
(c) an interpreter through whom the protected
communication was made;
"require disclosure" of a protected communication
includes --
10 (a) to require (whether by the issue of a
subpoena or any other process or procedure)
the production of a document recording the
protected communication; and
(b) to seek an order of the court that will, if
15 made, result in the disclosure of the
protected communication or the production
of a document recording the protected
communication;
"support person" means a parent, carer or other
20 supportive person who is present when a person
counsels the complainant to facilitate
communication between the complainant and the
counsellor or to further the counselling process in
some other way;
25 "supporting affidavit" means the affidavit
accompanying an application for leave;
"the protection provisions" means this section and
sections 19B to 19M.
(2) A person "counsels" another person if --
30 (a) the person has undertaken training or study or
has experience that is relevant to the process of
counselling persons who have suffered harm;
and
page 9
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Part 3 Amendments to the Evidence Act 1906
s. 10
(b) the person --
(i) listens to and gives verbal or other
support or encouragement to the other
person; or
5 (ii) advises, gives therapy to or treats the
other person,
whether or not for fee or reward.
(3) In the protection provisions, a reference to a document
recording a protected communication --
10 (a) is a reference to any part of the document that
records a protected communication or any
report, observation, opinion, advice,
recommendation or other matter that relates to
the protected communication made by a
15 protected person; and
(b) includes a reference to any copy, reproduction
or duplicate of that part of the document.
(4) For the purposes of the definition of "counselling
communication" in subsection (1), a communication
20 can be regarded as being made in confidence even if it
is made in the presence of a support person or through
or in the presence of an interpreter.
19B. Protected communications recorded electronically
For the purposes of the protection provisions, if --
25 (a) a document recording a protected
communication is stored electronically; and
(b) a written document recording the protected
communication could be created by use of
equipment that is usually available for
30 retrieving or collating such stored information,
the document stored electronically is to be dealt with as
if it were a written document so created.
page 10
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Amendments to the Evidence Act 1906 Part 3
s. 10
19C. Protected communications not to be disclosed in
criminal proceedings except with leave of court
(1) A person cannot disclose or require disclosure of a
protected communication in, or in connection with, any
5 criminal proceedings except with, and in accordance
with, the leave of the court.
(2) If a subpoena that purports to require the disclosure of
a protected communication is issued without the leave
of the court required by subsection (1), the subpoena is
10 of no effect.
(3) An application for leave must be made to the court in
writing and must be accompanied by an affidavit
stating why the applicant has a legitimate forensic
purpose for having leave to disclose or require
15 disclosure of the protected communication.
(4) If the court considers that the supporting affidavit
establishes a prima facie case that the applicant has a
legitimate forensic purpose for having the leave, the
court is to --
20 (a) fix a day and time for hearing the application;
or
(b) determine that the application will be heard
during the criminal proceedings referred to in
subsection (1),
25 and send notification of when the application will be
heard, together with copies of the application and the
supporting affidavit, to --
(c) the applicant and each other party;
(d) each protected person identified in the
30 application or the supporting affidavit; and
(e) any other person identified in the application or
the supporting affidavit as a person to whom
the protected communication was made.
page 11
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Part 3 Amendments to the Evidence Act 1906
s. 10
(5) If the court does not consider that the supporting
affidavit establishes a prima facie case that the
applicant has a legitimate forensic purpose for having
the leave, the court is to notify the applicant
5 accordingly and the application for leave is taken to
have been refused.
(6) Section 19E(2) and (3) apply in relation to the court's
consideration of whether the supporting affidavit
establishes a prima facie case that the applicant has a
10 legitimate forensic purpose for having the leave.
(7) In this section --
"party" means a party to the criminal proceedings
referred to in subsection (1).
19D. Procedure on hearing of application for leave
15 (1) A protected person or a person referred to in
section 19C(4)(e) may appear, or be represented by
counsel or solicitor, at the hearing of an application for
leave and is to be informed of that right when a
notification is sent under section 19C(4)(d) or (e).
20 (2) If there is a jury, the court is to hear and determine an
application for leave in the absence of the jury.
19E. Application for leave to be dismissed if there is no
legitimate forensic purpose for it
(1) On the hearing of an application for leave, leave is to
25 be refused by the court if the applicant does not satisfy
the court --
(a) that the applicant has a legitimate forensic
purpose for having leave to disclose or require
disclosure of the protected communication; and
30 (b) that other evidence to the same effect as --
(i) the protected communication; or
page 12
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Amendments to the Evidence Act 1906 Part 3
s. 10
(ii) the contents of the document recording
the protected communication,
as the case may be, is not available.
(2) In order to establish that the applicant has a legitimate
5 forensic purpose under subsection (1)(a) it is not
sufficient for the applicant --
(a) to assert, without proving, one or more of the
following --
(i) that the protected communication
10 discloses a prior inconsistent statement
of the complainant;
(ii) that the protected communication relates
to the credibility of the complainant or
another witness in the criminal
15 proceedings;
(iii) that the protected communication relates
to the reliability of the testimony of the
complainant merely because the
complainant has received or is receiving
20 counselling;
or
(b) to prove one or more of the following --
(i) that the protected communication exists;
(ii) that the protected communication relates
25 to activity that is the subject of the
criminal proceedings;
(iii) that the protected communication was
made close in time to the activity that is
the subject of the criminal proceedings;
30 (iv) that the protected communication
reveals allegations of the commission of
sexual assault against the complainant
by a person other than the applicant.
page 13
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Part 3 Amendments to the Evidence Act 1906
s. 10
(3) Subsection (2) does not limit --
(a) the matters which the court can consider in
deciding whether the applicant has a legitimate
forensic purpose under subsection (1)(a); or
5 (b) the grounds on which the court can decide that
the applicant does not have a legitimate
forensic purpose under subsection (1)(a).
19F. Determination of application
(1) If the court is satisfied as to the matters set out in
10 section 19E(1)(a) and (b), the court is to determine the
application for leave.
(2) The court may, if it thinks it necessary in order to
enable it to determine the application, conduct a
preliminary examination of the evidence that is the
15 subject of the application.
(3) For the purpose of a preliminary examination the court
may require a protected person --
(a) to provide written answers to questions; or
(b) to appear for oral examination.
20 (4) A preliminary examination is to be conducted in the
absence of the parties.
19G. Public interest test
(1) In determining the application for leave, the court may
grant leave to disclose, or require the disclosure of, the
25 protected communication if, and only if, the court
determines that it is in the public interest to do so.
(2) For the purposes of subsection (1) the court is to have
regard to the following --
(a) the extent to which disclosing, or requiring the
30 disclosure of, the protected communication is
page 14
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Amendments to the Evidence Act 1906 Part 3
s. 10
necessary to allow the applicant for leave to
make a full defence;
(b) whether the evidence of the protected
communication or the contents of the document
5 recording the protected communication will
have substantial probative value;
(c) the likelihood that disclosing, or requiring the
disclosure of, the protected communication will
affect the outcome of the proceedings;
10 (d) the public interest in ensuring that complainants
receive effective counselling, and the extent to
which failure to preserve the confidentiality of
protected communications may dissuade
complainants from seeking counselling or
15 diminish the effectiveness of counselling;
(e) the public interest in ensuring that adequate
records are kept of counselling
communications;
(f) the likelihood that disclosing, or requiring the
20 disclosure of, the protected communication will
cause harm to the complainant, and the nature
and extent of that harm;
(g) any other matter that the court considers
relevant.
25 19H. Effect of consent
(1) The protection provisions do not prevent a protected
communication from being disclosed or being required
to be disclosed in, or in connection with, any criminal
proceedings if the complainant has consented to the
30 disclosure.
(2) Consent is not effective for the purposes of this section
unless --
(a) it is given in writing; and
page 15
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Part 3 Amendments to the Evidence Act 1906
s. 10
(b) it is given expressly for the purposes of the
protection provisions.
(3) This section does not apply if the complainant is a
child.
5 19I. Loss of sexual assault communications privilege:
misconduct
(1) The protection provisions do not prevent the
production or adducing of evidence of a
communication made, or the production of a document
10 prepared, in the furtherance of the commission of a
fraud or an offence or the commission of an act that
renders a person liable to a civil penalty.
(2) For the purposes of this section, if the commission of
the fraud, offence or act is a fact in issue and there are
15 reasonable grounds for finding that --
(a) the fraud, offence or act was committed; and
(b) a communication was made or document
prepared in furtherance of the commission of
the fraud, offence or act,
20 the court may find that the communication was so
made or document so prepared.
19J. Ancillary orders
Without limiting any action the court may take to limit
the possible harm, or extent of the harm, likely to be
25 caused by the disclosure of evidence of, or the contents
of a document recording, a protected communication,
the court may --
(a) order that all or part of the evidence be heard or
document produced in camera;
30 (b) make any orders relating to the production,
inspection, copying or reproduction of the
page 16
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Amendments to the Evidence Act 1906 Part 3
s. 10
document that, in the opinion of the court, are
necessary to protect the safety and welfare of
any protected person;
(c) make any orders relating to the suppression of
5 publication of all or part of the evidence given
before the court that, in its opinion, are
necessary to protect the safety and welfare of
any protected person; and
(d) make any orders relating to disclosure of
10 identity information that would tend to identify
any protected person that, in the opinion of the
court, are necessary to protect the safety and
welfare of any protected person.
19K. Inadmissibility of evidence that must not be
15 adduced or given
Evidence that, because of the protection provisions,
cannot be disclosed or required to be disclosed in
proceedings is not admissible in the proceedings.
19L. Application of other laws
20 (1) The protection provisions do not affect the operation of
any rule of law in relation to evidence in criminal
proceedings except to the extent that they expressly or
necessarily have that effect.
(2) Without limiting subsection (1), the protection
25 provisions do not affect the operation of a rule of law
so far as it relates to the inspection of a document
required to be produced in, or in connection with,
criminal proceedings.
(3) Subject to subsection (4), sections 238 and 239 of the
30 Children and Community Services Act 2004 do not
apply to the production or disclosure of a protected
communication in criminal proceedings.
page 17
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Part 3 Amendments to the Evidence Act 1906
s. 10
(4) If in criminal proceedings leave is given under the
protection provisions to require disclosure of a
departmental record as defined in subsection (1) of
section 238 of the Children and Community Services
5 Act 2004, subsections (5) to (8) of that section apply as
if the departmental record had been produced in
response to a requirement referred to in subsection (2)
of that section.
(5) The protection provisions do not affect the operation of
10 section 240 of the Children and Community Services
Act 2004.
19M. Regulations as to disclosure of protected
communications
The Governor may make regulations as to --
15 (a) the forms to be used for an application for leave
and the supporting affidavit;
(b) the manner in which a protected
communication is to be described in an
application for leave or the supporting affidavit;
20 (c) other matters to be included in an application
for leave or the supporting affidavit;
(d) the procedure relating to an application for
leave; and
(e) any other matter that is necessary or convenient
25 to be prescribed for the purposes of the
protection provisions.
".
page 18
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Amendments to the Evidence Act 1906 Part 3
s. 11
11. Section 26 replaced
Section 26 is repealed and the following section is inserted
instead --
"
5 26. Improper questions
(1) The court may disallow a question put to a witness in
cross-examination, or inform the witness that it need
not be answered, if the question is --
(a) misleading; or
10 (b) unduly annoying, harassing, intimidating,
offensive, oppressive or repetitive.
(2) Subsection (1) extends to a question that is otherwise
proper if the putting of the question is unduly
annoying, harassing, intimidating, offensive or
15 oppressive.
(3) Without limiting the matters that the court may take
into account for the purposes of subsection (1), it is to
take into account --
(a) any relevant condition or characteristic of the
20 witness, including age, language, personality
and education; and
(b) any mental, intellectual or physical disability to
which the witness is or appears to be subject.
".
25 12. Section 27 amended
Section 27 is amended as follows:
(a) in paragraph (a) by deleting "forbidden or";
(b) in paragraph (b) by deleting "warned" and inserting
instead --
30 " informed ".
page 19
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Part 3 Amendments to the Evidence Act 1906
s. 13
13. Section 31A inserted
After section 31 the following section is inserted --
"
31A. Propensity and relationship evidence
5 (1) In this section --
"propensity evidence" means --
(a) similar fact evidence or other evidence of the
conduct of the accused person; or
(b) evidence of the character or reputation of the
10 accused person or of a tendency that the
accused person has or had;
"relationship evidence" means evidence of the
attitude or conduct of the accused person towards
another person, or a class of persons, over a period
15 of time.
(2) Propensity evidence or relationship evidence is
admissible in proceedings for an offence if the court
considers --
(a) that the evidence would, either by itself or
20 having regard to other evidence adduced or to
be adduced, have significant probative value;
and
(b) that the probative value of the evidence
compared to the degree of risk of an unfair trial,
25 is such that fair-minded people would think that
the public interest in adducing all relevant
evidence of guilt must have priority over the
risk of an unfair trial.
(3) In considering the probative value of evidence for the
30 purposes of subsection (2) it is not open to the court to
have regard to the possibility that the evidence may be
the result of collusion, concoction or suggestion.
".
page 20
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Amendments to the Evidence Act 1906 Part 3
s. 14
14. Section 106A amended and consequential amendments
(1) Section 106A is amended by inserting in the appropriate
alphabetical positions --
"
5 "serious sexual offence" means --
(a) an offence under a section or Chapter of The
Criminal Code mentioned in Part B of
Schedule 7 for which the maximum penalty
that may be imposed is 7 years, or more than
10 7 years;
(b) an offence under a repealed section of The
Criminal Code if --
(i) the acts or omissions that constituted an
offence under that section are
15 substantially the same as the acts or
omissions that constitute an offence (the
"new offence") under a section or
Chapter of The Criminal Code
mentioned in Part B of Schedule 7; and
20 (ii) the maximum penalty that may be
imposed for the new offence is 7 years,
or more than 7 years;
or
(c) an offence of attempting to commit an
25 offence described in paragraph (a) or (b);
"special witness" means a person declared to be a
special witness under section 106R(1);
"visually recorded interview" has the meaning given
to that term in section 106HA(3).
30 ".
page 21
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Part 3 Amendments to the Evidence Act 1906
s. 14
(2) Section 106A is amended as follows:
(a) in the definition of "video-taped recording" by deleting
"video-taped" and inserting instead --
" visual ";
5 (b) in the definition of "video-taped recording of
evidence" --
(i) by deleting "video-taped" in the first place where
it occurs and inserting instead --
" visual ";
10 (ii) by deleting "video-taped" in the second place
where it occurs and inserting instead --
" visual "; and
(iii) in paragraph (c), by deleting "or (5)." and
inserting instead --
15 " or (5); ".
(3) The provisions set out in the Table to this subsection are
amended by deleting "video-tape" and inserting instead --
" a visual recording ".
Table
s. 106H(2c) s. 106R(4)(b)(i)
s. 106I(1)(b)(i) s. 106T(1) and (2)
s. 106N(3a) and (5)
20 (4) The provisions set out in the Table to this subsection are
amended by deleting "video-taped" and inserting instead --
" visual ".
Table
s. 106I(1)(b)(ii) s 106MA(1)(a) and (b), (2) and (3)
s. 106K(1)(b) s 106MB(1)
s 106M(2) s. 106R(4)(b)(ii)
page 22
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Amendments to the Evidence Act 1906 Part 3
s. 15
(5) Section 106M(1) is amended by deleting "recording of
video-taped" and inserting instead --
" visual recording of ".
(6) Section 106T(3) is amended as follows:
5 (a) by deleting "video-taped evidence" in the first place
where it occurs and inserting instead --
" evidence on a visual recording ";
(b) by deleting "video-taped evidence" in the second place
where it occurs and inserting instead --
10 " evidence on the visual recording ".
15. Section 106B amended
Section 106B(2)(b) is amended by deleting "that is over and
above the ordinary duty to tell the truth".
16. Section 106E amended
15 Section 106E(1) is amended by deleting "who is under the age
of 16 years".
Note: The heading to section 106E will be altered by deleting "under 16".
17. Section 106F amended
Section 106F(1) is amended by deleting "under the age of
20 16 years".
Note: The heading to section 106F will be altered by deleting "under 16".
18. Section 106G amended
(1) Section 106G is amended as follows:
(a) by inserting before "Where" the subsection designation
25 "(1)";
(b) by deleting "child who is under 16 years of age" and
inserting instead --
" protected witness ";
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Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Part 3 Amendments to the Evidence Act 1906
s. 19
(c) by deleting "to the child" in both places where it occurs
and inserting instead --
" to the protected witness ".
(2) At the end of section 106G the following subsections are
5 inserted --
"
(2) Nothing in subsection (1) prevents a protected witness
who is not a child from consenting to being
cross-examined by the defendant directly.
10 (3) In this section --
"protected witness" means --
(a) a child; or
(b) if the proceeding is for a serious sexual
offence, the person upon or in respect of
15 whom it is alleged that the offence was
committed, attempted or proposed
irrespective of the person's age.
".
Note: The heading to section 106G will be altered by inserting "or sexual
20 offence complainant" instead of "under 16".
19. Section 106H amended
Section 106H(3) is amended by inserting after "not" --
" , but does not include a visually recorded interview ".
20. Sections 106HA to 106HD inserted
25 After section 106H the following sections are inserted --
"
106HA. Visual recording of interviews with children
(1) Section 106HB applies to a visual recording of an
interview with a child conducted before or after the
30 coming into operation of section 20 of the Criminal
page 24
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Amendments to the Evidence Act 1906 Part 3
s. 20
Law Amendment (Sexual Assault and Other Matters)
Act 2004 if --
(a) the interview was conducted by a person of a
prescribed class who had reason to believe that
5 the child, or another child, had, or may have,
suffered physical or sexual abuse; and
(b) the manner in which the interview was
conducted and recorded meets the prescribed
requirements to the prescribed extent.
10 (2) Section 106HB applies to a visual recording of an
interview with a child whether or not the interview was
conducted with the consent of a parent or guardian of
the child.
(3) A visual recording of an interview with a child to
15 which section 106HB applies is referred to as a
"visually recorded interview".
106HB. Admissibility in criminal proceedings of a visual
recording of an interview with a child
(1) In any proceeding for an offence (the "proceeding")
20 one or more visually recorded interviews may be
admitted as the whole or a part of the evidence in chief
of a witness --
(a) irrespective of the age or maturity of the
witness at the time of the proceeding; and
25 (b) even if the witness is capable of giving
evidence at the proceeding.
(2) A visually recorded interview is not to be admitted in
the proceeding under subsection (1) unless --
(a) a transcript of it has been given to the
30 defendant; and
(b) the defendant and his or her counsel have, in
accordance with the regulations, been given a
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Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Part 3 Amendments to the Evidence Act 1906
s. 20
reasonable opportunity to view the visually
recorded interview.
(3) Neither the defendant nor his or her counsel is entitled
to have possession of, or of a copy of --
5 (a) a visually recorded interview; or
(b) a visual recording of evidence on which a
visually recorded interview is recorded or
which incorporates a visually recorded
interview.
10 (4) A visually recorded interview is admissible under
subsection (1) to the same extent as if statements made
in it by the witness were given orally in the proceeding
in accordance with the usual rules and practice of the
court concerned.
15 (5) If a visually recorded interview is admissible under
subsection (1), the judge in the proceeding may give
any directions the judge thinks fit as to --
(a) the presentation of it and the excision of
matters from it; and
20 (b) the manner in which further evidence in chief
of the witness may be given and in which any
cross-examination and any re-examination of
the witness is to be conducted in the
proceeding.
25 (6) A visually recorded interview is not to be admitted
under subsection (1) if it has been edited or altered
otherwise than in accordance with a direction under
subsection (5)(a).
(7) The following provisions apply if the proceeding is on
30 indictment --
(a) if a visually recorded interview is admitted
under subsection (1), the judge is to instruct the
jury that the procedure is a routine practice of
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Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Amendments to the Evidence Act 1906 Part 3
s. 20
the court and that they should not draw any
inference as to the defendant's guilt from the
use of the procedure;
(b) if the judge is deciding whether or not to warn
5 the jury that it may be dangerous to convict on
the evidence of the complainant alone because
of the length of the period between the offence
and the proceeding, the admission under
subsection (1) of a visually recorded interview
10 with the complainant is not a relevant factor
except to the extent that the length of the period
between the offence and the admission of the
official visually recorded interview may have
affected the ability to test the evidence so
15 admitted;
(c) the fact that there was a visually recorded
interview that the prosecutor did not adduce
under subsection (1) is not to be the subject of
comment to the jury by the judge, the defendant
20 or the defendant's counsel.
106HC. Regulations about visual recording of interviews
with children
(1) The Governor may make regulations --
(a) prescribing classes of persons for the purposes
25 of section 106HA(1)(a) by reference to the
offices or positions held by them, or their
training or experience, or any combination of
those criteria;
(b) prescribing requirements to be met for the
30 purposes of section 106HA(1)(b), and the
extent to which they are to be met, if
section 106HB is to apply to a visual recording
of an interview with a child;
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Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Part 3 Amendments to the Evidence Act 1906
s. 20
(c) prescribing the manner in which the application
of section 106HB to a visual recording of an
interview with a child may be proved in
proceedings;
5 (d) regulating the playing, broadcasting, custody,
possession, storage, copying, transcription,
erasure or destruction of a visually recorded
interview;
(e) regulating the records that are to be kept about
10 a visually recorded interview;
(f) providing for access to a visually recorded
interview by the prosecutor for the purposes of
proceedings referred to in section 106HB;
(g) providing for access to and use of a visually
15 recorded interview for the purposes of
proceedings in the Children's Court or the
Family Court whether or not it has been
admitted in evidence under section 106HB;
(h) providing for access to and use of a visually
20 recorded interview otherwise than for the
purposes of proceedings referred to in
section 106HB or paragraph (g); and
(i) prescribing any other matter that is necessary or
convenient to be prescribed for the purposes of
25 section 106HA or 106HB.
(2) The regulations may create offences and provide, in
respect of an offence so created, for the imposition of a
penalty not exceeding a fine of $100 000 with or
without imprisonment for a term not exceeding
30 12 months.
106HD. Admissibility of visually recorded interviews
generally
Section 106HB and regulations under section 106HC
have effect in addition to, and do not limit the
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Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Amendments to the Evidence Act 1906 Part 3
s. 21
operation of, any other enactment or rule of law under
which a visually recorded interview may be admissible
in proceedings.
".
5 21. Section 106I amended
Section 106I(1) is amended by deleting paragraph (a) and "or"
after it.
22. Section 106J repealed and consequential amendments
(1) Section 106J is repealed.
10 (2) Section 106A is amended in the definition of "video-taped
recording of evidence" by deleting paragraph (a).
(3) Sections 106MA(3)(b), 106S(1) and 106T(1) and (4) are
amended by deleting "106J,".
23. Section 106K amended
15 (1) Section 106K(1) is amended as follows:
(a) in paragraph (b), by inserting before "directions" --
" subject to section 106HB(3), ";
(b) by inserting after "106M" --
" but subject to section 106HB(3) ".
20 (2) After section 106K(3) the following subsection is inserted --
"
(4) If an order is made under subsection (1), nothing in this
section or section 106I prevents a visually recorded
interview from being presented under section 106HB
25 as the whole or a part of the affected child's evidence
in chief at the special hearing, and in that event the
judge may give directions as to the manner in which
the visually recorded interview is to be --
(a) presented at the special hearing; and
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Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Part 3 Amendments to the Evidence Act 1906
s. 24
(b) recorded on, incorporated with or referred to in
the visual recording of the evidence taken at the
special hearing.
".
5 24. Section 106M amended
(1) Section 106M(1) is amended by deleting "Judge" and inserting
instead --
" judge ".
(2) Section 106M(3) is repealed and the following subsection is
10 inserted instead --
"
(3) In subsection (1) --
"judge" means the judge who presided at the special
hearing or a judge who has jurisdiction
15 co-extensive with that judge.
".
25. Section 106Q amended
Section 106Q is amended as follows:
(a) by inserting after "child" in the first place where it
20 occurs --
" or a special witness ";
(b) by inserting after "child" in the second place where it
occurs --
" or special witness ";
25 (c) in paragraph (b), by deleting "affected child's evidence"
and inserting instead --
" evidence of the affected child or special witness ".
Note: The heading to section 106Q will be altered by inserting "or special
witness" after "child".
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Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Amendments to the Evidence Act 1906 Part 3
s. 26
26. Section 106R amended
(1) After section 106R(3) the following subsection is inserted --
"
(3a) Despite subsection (3), in any proceeding for a serious
5 sexual offence an order must be made under
subsection (1) in respect of the person upon or in
respect of whom it is alleged that the offence was
committed, attempted or proposed unless the court is
satisfied --
10 (a) that subsection (3) does not apply to the person;
and
(b) that the person does not wish to be declared to
be a special witness.
".
15 (2) After section 106R(6) the following subsection is inserted --
"
(7) Where in any proceeding on indictment a person is
declared to be a special witness, the judge is to instruct
the jury that the making of the declaration is a routine
20 practice of the court and that they should not draw any
inference as to the defendant's guilt from it.
".
27. Section 106S amended
Section 106S(1) is amended by inserting before "106K" --
25 " 106HB(5), ".
28. Section 119 amended
(1) Section 119(2) is amended as follows:
(a) after paragraph (b) by deleting "and";
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Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Part 3 Amendments to the Evidence Act 1906
s. 29
(b) after paragraph (c) by deleting the full stop and
inserting --
"
; and
5 (d) persons referred to in sections 106E(1) and
106R(4)(a).
".
(2) After section 119(2) the following subsection is inserted --
"
10 (2a) Without limiting subsection (2), the Governor may also
make regulations authorising the payment of fees and
expenses to --
(a) children and persons who are, or may be,
declared to be special witnesses under
15 section 106R(1) in relation to their attendance
at, and participation in, programmes in
preparation for giving evidence in proceedings
referred to in subsection (2)(a) and (b); and
(b) persons who accompany and assist children and
20 persons who are, or may be, declared to be
special witnesses under section 106R(1) in
order to enable them to --
(i) attend and give evidence at proceedings
referred to in subsection (2)(a) and (b);
25 or
(ii) attend and participate in programmes
referred to in paragraph (a).
".
29. Schedule 7 amended
30 (1) Schedule 7 clause 1(1)(b) is amended by deleting "affected
child was under the age of 16 years" and inserting instead --
" complainant was a child ".
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Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Amendments to the Evidence Act 1906 Part 3
s. 29
(2) Schedule 7 clause 4(c) is amended by deleting "child" and
inserting instead --
" complainant ".
page 33
Criminal Law Amendment (Sexual Assault and Other Matters) Bill 2004
Part 4 Transitional and validation
s. 30
Part 4 -- Transitional and validation
30. Validation of payments
(1) In this section --
"fee regulations" means regulations 6(2) and 13 of the
5 Evidence (Witnesses' and Interpreters' Fees and Expenses)
Regulations 1976.
(2) Any payment purporting to have been made under the fee
regulations before the coming into operation of section 28 is
taken to have been, and to have always been, as valid as it
10 would have been if section 28 had come into operation before
the fee regulations were made.
page 34
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