Criminal Procedure Act 1986 No 209
Current version for 28 October 2014 to date (accessed 22 December 2014 at 23:04)
Chapter 3Part 2Division 3

Division 3 Prosecution evidence

71   Evidence to be taken in presence of accused person

The accused person must be present when prosecution evidence is taken, unless this Division or any other Act or law permits the evidence to be taken in the accused person’s absence.

72   Magistrate may excuse accused person from attending

(1)  The Magistrate may excuse the accused person from attending during the taking of prosecution evidence if satisfied that the accused person will be represented by an Australian legal practitioner while the evidence is taken or if satisfied that the evidence is not applicable to the accused person.
(2)  A period during which the accused person is so excused is taken to be an adjournment for the purposes of dealing with the accused person.

73   Other circumstances in which evidence may be taken in absence of accused person

Evidence may commence or continue to be taken in the absence of an accused person who has not been excused from attending if:
(a)  no good and proper reason is shown for the absence of the accused person, and
(b)  a copy of the relevant written statements, and copies of any proposed exhibits identified in the statements (or a notice relating to inspection of them) have been served on the accused person in accordance with this Act and the accused person has been informed of the time set by the Magistrate for taking prosecution evidence.

74   Prosecution evidence to be in written form

(1)  Evidence for the prosecution must be given by written statements that are admissible as evidence.
(2)  A written statement is not admissible as evidence unless this Division, and any applicable rules or regulations, are complied with in relation to the statement and any associated exhibits or documents.
(3)  A written statement that is inadmissible as evidence under this section may nevertheless be admitted as evidence if otherwise admissible in accordance with any rule or law of evidence.

75   Written statements to be served on accused person

(1)  The prosecutor must serve or cause to be served on the accused person a copy of the written statements relating to the offence, and copies of any proposed exhibits identified in the statement (or a notice relating to inspection of them), within the time set by the Magistrate under section 60.
(2)  The last date for service set by the Magistrate under that section must be at least 28 days before the date set by the Magistrate for taking the prosecution evidence in the committal proceedings.
(3)  The Magistrate may set a later date for service with the consent of the accused person or if of the opinion that the circumstances of the case require it.
(4)  A written statement served under this Division must contain a notice explaining the effect of this Division and the accused person’s rights in relation to this Division and prosecution evidence under this Division. The notice must be in the form of words prescribed by the rules.
(5)  Despite subsection (1), the prosecutor is not required to include a copy of a proposed exhibit identified in the brief of evidence if it is impossible or impractical to copy the exhibit.
(6)  However, in that case the prosecutor is:
(a)  to serve on the accused person a notice specifying a reasonable time and place at which the proposed exhibit may be inspected, and
(b)  to allow the accused person a reasonable opportunity to inspect each proposed exhibit referred to in the notice.

76   Recordings of interviews with vulnerable persons

(1)  A written statement may be in the form of a transcript of a recording made by an investigating official of an interview with a vulnerable person, during which the vulnerable person was questioned by the investigating official in connection with the investigation of the commission or possible commission of the offence (as referred to in section 306R), but only if this section is complied with.
(2)  The copy of the transcript of the recording must be certified by an investigating official as an accurate transcript of the recording and served on the accused person in accordance with section 75.
(3)  The accused person must be given, in accordance with the regulations under section 306V (2), a reasonable opportunity to listen to and, in the case of a video recording, to view, the recording.
(4)  However, if the requirements of the regulations under section 306V (2) have not been complied with, the recording may be admitted if the court is satisfied that:
(a)  the parties consent to the recording being admitted, or
(b)  the accused person and his or her Australian legal practitioner (if any) have been given a reasonable opportunity otherwise than in accordance with such regulations to listen to or view the recording and it would be in the interests of justice to admit the recording.
(5)  Nothing in this Division requires the prosecutor to serve on the accused person a copy of the actual recording made by an investigating official of an interview with the vulnerable person (other than a transcript of the record).
(6)  This section does not affect section 306V (2).
(7)  Section 79 (3) does not apply to or in relation to a written statement certified under this section.
(8)  In this section:

investigating official has the same meaning as it has in Part 6 of Chapter 6.

vulnerable person has the same meaning as it has in Part 6 of Chapter 6.

Note. Part 6 of Chapter 6 allows vulnerable persons (children and cognitively impaired persons) to give evidence of a previous representation in the form of a recording made by an investigating official of an interview with the vulnerable person. Section 306V (2) (which is contained in that Part) provides that such evidence is not to be admitted unless the accused person and his or her Australian legal practitioner have been given a reasonable opportunity to listen to or view the recording.

77   When prosecution evidence may be given in other ways

(1)  A prosecutor may apply to have a Magistrate admit prosecution evidence that is not in the form of a written statement admissible in evidence under this Division.
(2)  The Magistrate may admit the evidence if satisfied that:
(a)  the written statement was prepared but a copy could not reasonably be served on the accused person, or
(b)  any other requirement could not reasonably be complied with, or
(c)  the evidence is additional evidence of a person whose written statement has already been admitted in evidence and a further written statement is not appropriate.
(3)  If the Magistrate decides not to admit the evidence, the Magistrate may adjourn the committal proceedings to enable the appropriate written statement to be prepared and served on the accused person, or may proceed without taking the evidence.
(4)  Evidence for the prosecution may be given orally if the prosecutor obtains a subpoena to require a witness to attend to give evidence or to produce documents or things and to give evidence.
(5)  A prosecutor may, subject to this Division, give evidence and may examine and cross-examine the witnesses giving evidence for the prosecutor or for the accused person, respectively.

78   Evidentiary effect of written statements

(1)  A written statement by any person is, if tendered by the prosecutor, admissible in committal proceedings as evidence to the same extent as if it were oral evidence to the like effect given in those proceedings by the same person.
(2)  Any document or other thing identified in any written statement admitted as evidence under this Division is, if the document or other thing is produced as an exhibit in the committal proceedings, to be treated as if it had been identified before the Magistrate by the person who made the statement.
(3)  This section does not operate to make a written statement admissible if it is not admissible because of another provision of this Division.

79   Form and requirements for written statements

(1)  A written statement may be in the form of questions and answers.
(2)  A written statement must specify the age of the person who made the statement.
(3)  A written statement must be endorsed in accordance with the rules by the maker of the statement as to the truth of the statement and any other matter required by the rules.
(4)  A written statement or such an endorsement on a statement must be written in a language of which the person who made the statement has a reasonable understanding.
(5)  If the written statement, or part of it, is in a language other than English, a document purporting to contain an English translation of the statement or part must be annexed to the statement.

80   Rules relating to written statements

(1)  The rules may prescribe requirements for written statements.
(2)  Any such requirements may be of the same or a different kind to the requirements contained in this Division.
(3)  The rules may provide that a requirement prescribed under subsection (2) may not be dispensed with by a Magistrate.

81   Written statement must be signed by its maker or another person on the maker’s behalf

(1)  A written statement must be signed by the person who made the statement.
(2)  If the person is unable to sign the written statement, the statement may be signed by another person with the consent of and in the presence of the person who made the statement.
(3)  The other person must sign an endorsement on the statement to the effect that the person signed the statement on behalf of, with the consent of and in the presence of the person who made the statement.

82   Written statement must be signed by witness

A written statement must be signed by another person as a witness to the signing of the statement by the person who made it or as a witness to the signing by another person on the maker’s behalf (if applicable).

83   Presumptions about written statements

(1)  In any proceedings it is presumed, if there is no evidence to the contrary, that the age specified in the written statement is in fact the age of the person who made the statement at the time the statement was made.
(2)  In any proceedings it is presumed, if there is no evidence to the contrary, that the language in which a statement or an endorsement is written is a language of which the person who made the statement or endorsement has a reasonable understanding.
(3)  In any proceedings it is presumed, if there is no evidence to the contrary, that the English translation of the statement or part statement is an accurate translation of the statement or part.

84   Presumptions about signatures

(1)  In any proceedings it is presumed, if there is no evidence to the contrary, that a signature on a written statement purporting or appearing to be the signature of the person who made it, or a person who signed on behalf of the maker, or a witness to the signing of the statement, is the signature of the person concerned.
(2)  In any proceedings it is presumed, if there is no evidence to the contrary, that a statement purporting or appearing to be signed by another person on behalf of the person who made the statement in accordance with this Division has been so signed.

85   False statements

(1)  A person who made a written statement tendered in evidence in proceedings is guilty of an offence if the statement contains any matter:
(a)  that, at the time the statement was made, the person knew to be false, or did not believe to be true, in any material respect, and
(b)  that was inserted or caused to be inserted by the person in the statement.

Maximum penalty:

(a)  If the offence is dealt with summarily, 20 penalty units or imprisonment for 12 months, or both.
(b)  If the offence is dealt with on indictment, 50 penalty units or imprisonment for 5 years, or both.

(2)  Chapter 5 of this Act (which relates to the summary disposal of certain indictable offences unless an election is made to proceed on indictment) applies to and in respect of an offence under this section.

86   Evidence not to be admitted

(1)  The Magistrate must refuse to admit evidence sought to be adduced by the prosecutor in respect of an offence in committal proceedings if, in relation to that evidence, this Division or any rules made under this Division, have not been complied with by the prosecutor.
(2)  Despite subsection (1), the Magistrate may admit the evidence sought to be adduced if the Magistrate is satisfied that:
(a)  the non-compliance with this Division or the rules is trivial in nature, or
(b)  there are other good reasons to excuse the non-compliance, and admit the evidence, in the circumstances of the case.

87   Inadmissible written statements or parts of statements to be rejected

(1)  The Magistrate must reject a written statement, or any part of a written statement, tendered in committal proceedings if the statement or part is inadmissible because of this Division.
(2)  The Magistrate must record the rejection of a part of a written statement and identify in the record the part rejected.
(3)  The rules may prescribe the manner of identifying a part of a written statement that has been rejected.

88   Death of person who made statement

(1)  A written statement is not admissible if, on evidence produced during committal proceedings, the Magistrate is satisfied that the person who made the statement is dead.
(2)  If it is found after a written statement is admitted in evidence in committal proceedings that the person who made the statement died before the statement was admitted, the statement is taken not to have been admitted in evidence.
(3)  This section does not apply to a deposition that is admissible under section 284.

89   Notice of rights to unrepresented accused person

(1)  In any committal proceedings in which an accused person is not represented by an Australian legal practitioner, a written statement is not admissible unless the Magistrate:
(a)  has explained to the accused person the effect of this Division and the accused person’s rights in relation to this Division, and
(b)  is satisfied that the accused person understands his or her rights under this Division.
(2)  The explanation by the Magistrate must be in the form of words prescribed by the rules.

90   Magistrate may set aside requirements for written statements

(1)  In any committal proceedings, the Magistrate may dispense with all or any of the following requirements of this Act relating to written statements or exhibits:
(a)  service of documents on the accused person, as required by section 75,
(b)  provision to the accused person of a reasonable opportunity to inspect proposed exhibits,
(c)  specification of the age of the person who made a statement,
(d)  any requirement specified by the regulations, if the rules do not prohibit the Magistrate from dispensing with the requirement.
(2)  A requirement may be dispensed with under this section only on an application by the accused person or with the consent of the accused person.

91   Witness may be directed to attend

(1)  The Magistrate may direct the attendance at the committal proceedings of the person who made a written statement that the prosecution intends to tender as evidence in the committal proceedings. The direction may be given on the Magistrate’s own motion or on the application of the accused person or the prosecutor.
(2)  The Magistrate must give the direction if an application is made by the accused person or the prosecutor and the other party consents to the direction being given.
(3)  In any other circumstance, the Magistrate may give a direction only if satisfied that there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence.
(3A)  A direction may not be given for the reasons referred to in subsection (3) if the written statement has already been admitted in evidence. This does not prevent a direction being given merely because the written statement is tendered to the Magistrate for the purpose of determining an application for a direction under this section.
(4)  The written statement may be admissible in evidence in the proceedings after the direction is given if:
(a)  the accused person and the prosecutor consent to the statement being admitted, or
(b)  the Magistrate is satisfied that there are substantial reasons why, in the interests of justice, the statement should be admitted.
(5)  A direction given on the application of the accused person or the prosecutor may be withdrawn only:
(a)  on the application, or with the consent, of the applicant, or
(b)  if the applicant fails to appear, on the application of the other party.
(6)  The regulations may make provision for or with respect to the determination of substantial reasons under subsections (3) and (4).
(7)  If a person attends to give oral evidence because of a direction under this section, the Magistrate must not allow the person to be cross-examined in respect of matters that were not the basis of the reasons for giving the direction, unless the Magistrate is satisfied that there are substantial reasons why, in the interests of justice, the person should be cross-examined in respect of those matters.
(7A)  A direction may not be given under this section so as to require the attendance of the complainant in proceedings for a prescribed sexual offence if the complainant is a cognitively impaired person (within the meaning of Part 6 of Chapter 6).
(8)  A direction may not be given under this section so as to require the attendance of the complainant in proceedings for a child sexual assault offence if the complainant:
(a)  was under the age of 16 years:
(i)  on the earliest date on which, or
(ii)  at the beginning of the earliest period during which,
any child sexual assault offence to which the proceedings relate was allegedly committed, and
(b)  is currently under the age of 18 years.
(9)  For the purposes of subsection (8):

child sexual assault offence means:

(a)  a prescribed sexual offence, or
(b)  an offence that, at the time it was committed, was a child sexual assault offence for the purposes of subsection (8), or
(c)  an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a) or (b).

complainant, in relation to any proceedings, means the person, or any of the persons, against whom a prescribed sexual offence with which the accused person stands charged in those proceedings is alleged to have been committed, and includes:

(a)  in relation to an offence under section 80E of the Crimes Act 1900, the person who is alleged to have been the subject of sexual servitude, and
(b)  in relation to an offence under section 91D, 91E or 91F of the Crimes Act 1900, the person under the age of 18 years who is alleged to have participated in an act of child prostitution, and
(c)  in relation to an offence under section 91G of the Crimes Act 1900, the person under the age of 18 years who is alleged to have been used for the production of child abuse material.

92   When accused person may apply to have witness attend

(1)  The accused person in any committal proceedings may not apply for a direction under section 91 unless the accused person has served on the prosecutor a notice requesting the attendance at the proceedings of the person who made the statement concerned.
(2)  The notice must be served within the time set by the Magistrate.
(3)  The last date for service of the notice set by the Magistrate must be at least 14 days before the time set by the Magistrate for taking the prosecution evidence in the committal proceedings.
(4)  The Magistrate may specify a later date with the consent of the accused person or if the circumstances of the case require it.

93   Victim witnesses generally not to be directed to attend

(1)  Despite section 91 (other than subsection (8) of that section), in any committal proceedings in which the accused person is charged with an offence involving violence, the Magistrate may not, under that section, direct the attendance of an alleged victim of the offence who made a written statement (even if the parties to the proceedings consent to the attendance) unless the Magistrate is satisfied that there are special reasons why the alleged victim should, in the interests of justice, attend to give oral evidence.
(2)  The regulations may make provision for or with respect to the determination of any such special reasons.

94   Meaning of “offence involving violence”

(1)  The following offences are offences involving violence for the purposes of section 93:
(a)  a prescribed sexual offence,
(b)  an offence under sections 27–30 of the Crimes Act 1900 (attempts to murder),
(c)  an offence under section 33 of the Crimes Act 1900 (wounding etc with intent to do grievous bodily harm or resist arrest),
(d)  an offence under section 35 (1) or (2) of the Crimes Act 1900 (infliction of grievous bodily harm),
(e)  an offence under sections 86–91 of the Crimes Act 1900 (abduction or kidnapping),
(f)  an offence under sections 94–98 of the Crimes Act 1900 (robbery),
(f1)  an offence the elements of which include the commission of, or an intention to commit, an offence referred to in any of the above paragraphs,
(g)  an offence that, at the time it was committed, was an offence involving violence for the purposes of section 93,
(h)  any other offence that involves an act of actual or threatened violence that is prescribed by the regulations for the purposes of this section.
(2)  An offence that may be dealt with summarily under Chapter 5 is not an offence involving violence for the purposes of section 93.

95   Use of previous statements in cases involving prescribed sexual offences

(1)  In proceedings in relation to a prescribed sexual offence, if:
(a)  the offence is alleged to have been committed in the course of a connected set of circumstances in which another prescribed sexual offence is alleged to have been committed, and
(b)  the accused person has been committed for trial in respect of, or has been convicted of, the other offence, and
(c)  each of the offences is alleged to have been committed on the same person,
transcripts of evidence of the person on whom the offence is alleged to have been committed at the proceedings in which the accused person was committed or tried in respect of the other offence may, in so far as they are relevant to the offence the subject of the hearing, be included in a brief of evidence.
(2)  A copy of the transcript must be certified by a registrar in accordance with the rules and served on the accused person in accordance with section 183.
(3)  A brief of evidence that includes a transcript of a deposition of a person is not required also to include a written statement from the person concerned in respect of any matter covered by the transcript.
(4)  The transcript of the deposition is taken, for the purposes of this Act, to be a written statement taken from the person. Accordingly, any document or other thing identified in the transcript as a proposed exhibit forms part of the brief of evidence.

96   Application of Division to proceedings where there is more than one accused person

In committal proceedings in which there are 2 or more accused persons, this Division applies:
(a)  in relation to each accused person to the extent only that a written statement is sought to be admitted as evidence against that accused person, and
(b)  in relation to each such accused person as if that accused person were the only accused person.
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