Criminal Procedure Act 1986 No 209
Current version for 1 July 2020 to date (accessed 5 August 2020 at 15:07)
Chapter 3 Part 2 Division 6
Division 6 Examination of prosecution witnesses
82   Magistrate may direct witness to attend
(1)  The Magistrate may, on the application of the prosecutor or the accused person, direct the attendance at the committal proceedings of a person whose evidence is referred to in the brief of evidence provided under Division 3 or who has been referred to in other material provided by the prosecution to the accused person.
(2)  The Magistrate may hold a hearing to determine an application under this section and may require the prosecutor or the accused person to make submissions in relation to the application.
(3)  An application may be made only after the charge certificate has been filed in the committal proceedings.
(4)  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.
(5)  In the case of any other application, 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. The regulations may make provision for or with respect to the determination of substantial reasons under this subsection.
(6)  For the purposes of determining whether to give a direction, the Magistrate may consider any material (whether or not it is in a form required for the material to be admissible as evidence).
(7)  A direction may be withdrawn only—
(a)  on the application, or with the consent, of the accused person, or
(b)  on the application of the prosecutor, if the accused person fails to appear on a day at which a person has been directed to appear to give evidence.
83   Witnesses who cannot be directed to attend
(1)  A direction may not be given so as to require the attendance of the complainant in committal proceedings for a prescribed sexual offence if the complainant is a cognitively impaired person (within the meaning of Part 6 of Chapter 6).
(2)  A direction may not be given so as to require the attendance of the complainant in committal 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.
(3)  For the purposes of subsection (2)—
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 (2), or
(c)  an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a) or (b), or
(d)  an offence under any law of the Commonwealth that corresponds to an offence referred to in paragraph (a), (b) or (c) and that is prescribed by the regulations.
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, and
(d)  in relation to an offence under any law of the Commonwealth that corresponds to an offence referred to in paragraph (a), (b) or (c) and that is prescribed by the regulations—the person referred to in the relevant paragraph.
84   Victim witnesses, sexual offence witnesses and vulnerable witnesses generally not to be directed to attend
(1)  A direction may not be given so as to direct the attendance of an alleged victim of an offence involving violence that is the subject of the committal proceedings (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.
(1A)  In committal proceedings for an offence involving violence, a direction may not be given so as to direct a vulnerable person whose evidence is referred to in the brief of evidence to give evidence orally unless—
(a)  the Magistrate is satisfied that there are special reasons why the vulnerable person should, in the interests of justice, attend to give evidence, or
(b)  the prosecutor consents.
(1B)  In committal proceedings for a prescribed sexual offence, a direction may not be given so as to direct the attendance of a sexual offence witness (even if the parties to the proceedings consent to the attendance) unless the Magistrate is satisfied that there are special reasons why the sexual offence witness should, in the interests of justice, attend to give evidence.
(2)  The regulations may make provision for or with respect to the determination of special reasons under this section.
(3)  The following offences are offences involving violence for the purposes of this section—
(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),
(g)  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,
(h)  an offence that, at the time it was committed, was an offence involving violence for the purposes of this section,
(h1)  an offence under any law of the Commonwealth that corresponds to an offence referred to in paragraph (a)–(h) and that is prescribed by the regulations,
(i)  any other offence that involves an act of actual or threatened violence and that is prescribed by the regulations for the purposes of this section.
(4)  An offence that may be dealt with summarily under Chapter 5 is not an offence involving violence for the purposes of this section.
(5)  Despite section 85 (4), the Magistrate must not allow a person who is an alleged victim of an offence involving violence 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 special reasons why, in the interests of justice, the person should be cross-examined in respect of those matters.
85   Evidence of prosecution witness
(1)  The evidence of a person who is directed to attend committal proceedings under this Division is to be given orally.
(2)  The person may be examined by the prosecutor.
(3)  The person may be cross-examined by the accused person and by the prosecutor.
(4)  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 examined in respect of those matters.
86   Exceptions to oral evidence
(1)  The evidence of a person who is directed to attend committal proceedings under this Division may be given by a written statement, or another kind of statement permitted to be tendered under Part 3A of Chapter 6, 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 evidence should be given by a statement.
Note.
 Sections 283C and 283D enable the use of recordings instead of written statements in the cases of witnesses who are vulnerable persons or in the case of domestic violence offences. Section 283G enables certain transcripts of evidence in other proceedings to be used instead of written statements.
(2)  The evidence of a person who is directed to attend committal proceedings under this Division may be given by a recorded statement in the circumstances permitted under Part 4B of Chapter 6.
(3)  This section has effect despite section 85.
87   Evidence to be taken in presence of accused person
(1)  The accused person must be present when evidence is taken under this Division, unless this Act or any other law permits the evidence to be taken in the accused person’s absence.
(2)  The Magistrate may excuse the accused person from attending during the taking of 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.
(3)  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.
(4)  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 all 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 Part and the accused person has been informed of the time set by the Magistrate for taking of the evidence.
88   Evidentiary effect of statements
(1)  A written statement, or any other kind of statement permitted to be tendered under Part 3A of Chapter 6, is, if tendered by the prosecutor in accordance with this Division, admissible as evidence for the purposes of this Division to the same extent as if it were oral evidence to the like effect given under this Division by the same person.
(2)  Any document or other thing identified in any 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 statement admissible if it is not admissible because of another provision made by or under this Division.
89   Statements must comply with requirements
(1)  A written statement, or another kind of statement permitted to be tendered under Part 3A of Chapter 6, is not admissible as evidence for the purposes of this Division unless this Division, and any applicable requirements specified by or under that Part, are complied with in relation to the statement and any associated exhibits or documents.
(2)  A statement that is not admissible as evidence under this section may nevertheless be admitted as evidence if otherwise admissible in accordance with any rule or law of evidence.
(3)  A statement sought to be admitted for the purposes of this Division must be served on the accused person on or before the day set by the Magistrate for that purpose.
90   Evidence not to be admitted
(1)  The Magistrate must refuse to admit evidence sought to be adduced by the prosecutor under this Division if, in relation to that evidence, this Division or any applicable requirements specified by or under Part 3A of Chapter 6, 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 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.
91   Magistrate may set aside requirements for statements
(1)  In any committal proceedings, the Magistrate may dispense with all or any of the following requirements relating to statements or exhibits—
(a)  service of documents on the accused person,
(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 under this Division or Part 3A of Chapter 6, if the regulations 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.
Note.
 Some of these requirements are made by or under Part 3A of Chapter 6.
92   False statements or representations
(1)  A person who made a written statement tendered in committal proceedings under this Division 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—100 penalty units or imprisonment for 5 years, or both.
(2)  A person who made a representation given in evidence under this Division in the form of a recorded statement is guilty of an offence if the representation contains any matter that, at the time the representation was made, the person knew to be false, or did not believe to be true, in any material respect.
Maximum penalty—100 penalty units or imprisonment for 5 years, or both.