Criminal Procedure Act 1986 No 209
Current version for 14 May 2020 to date (accessed 3 June 2020 at 13:21)
Chapter 6 Part 2A
Part 2A Sensitive evidence
Division 1 Preliminary
281A   Definitions
(1)  In this Part—
access supervisor—see section 281FB.
accused person means a person who stands, or any of the persons who stand, charged with an offence (whether summary or indictable), and includes the following—
(a)  in relation to proceedings for a summary offence, a defendant,
(b)  in relation to sentencing proceedings, a person who has been committed for sentence to the District Court or Supreme Court,
(c)  in relation to proceedings on an appeal against a conviction or sentence, the person convicted or sentenced.
criminal investigation means the investigation of an offence or alleged offence.
criminal proceedings means proceedings against a person for an offence (whether summary or indictable), and includes the following—
(a)  committal proceedings,
(b)  proceedings relating to bail,
(c)  proceedings relating to sentencing,
(d)  proceedings on an appeal against conviction or sentence.
health authority means any of the following—
(a)  a public health organisation (within the meaning of the Health Services Act 1997),
(b)  a public hospital (within the meaning of the Health Services Act 1997),
(c)  a private health facility (within the meaning of the Private Health Facilities Act 2007) that is licensed under that Act and that provides health services to the public on behalf of the Ministry of Health, the Health Administration Corporation constituted by the Health Administration Act 1982 or a local health district (within the meaning of the Health Services Act 1997),
(d)  a person or body that provides health services and is prescribed by the regulations.
prosecuting authority means—
(a)  in relation to criminal proceedings, the Director of Public Prosecutions, a delegate of the Director of Public Prosecutions, a police officer, or any other person acting in a public official capacity, who is responsible for the institution or conduct of a prosecution, and
(b)  in relation to a criminal investigation, a police officer or any other person acting in a public official capacity who is responsible for the conduct of a criminal investigation.
sensitive evidence has the meaning given by section 281B.
supervised access arrangements—see section 281FD.
(2)  In this Part, a reference to an accused person or a prosecuting authority includes a reference to an Australian legal practitioner representing the accused person or the prosecuting authority.
281B   Sensitive evidence—meaning
(1)  For the purposes of this Part, anything that contains or displays an image of a person (the protected person) is sensitive evidence if—
(a)  the image is obscene or indecent, or
(b)  providing a copy of the image to another person without the protected person’s consent would interfere with the protected person’s privacy, or
(c)  the image was taken after the death of the protected person.
(1A)  For the purposes of this Part, an audio recording of a person committing an offence against another person (the protected person) is sensitive evidence if—
(a)  the contents of the audio recording are obscene or indecent, or
(b)  providing a copy of the audio recording to another person without the protected person’s consent would interfere with the protected person’s privacy.
(1B)  The contents of an audio recording are not obscene or indecent merely because they include obscene or indecent language.
(2)  Without limiting subsection (1) or (1A), the following are examples of sensitive evidence—
(a)  a photograph of an alleged sexual assault victim, taken in connection with a criminal investigation or criminal proceedings, that shows the person’s genitalia or otherwise shows the person in a state of undress,
(b)  a video or audio recording, held or seized by a prosecuting authority, of a person committing a sexual offence,
(c)  a computer hard drive, held or seized by a prosecuting authority, containing images of child pornography or child abuse material (within the meaning of Division 15A of Part 3 of the Crimes Act 1900),
(d)  a photograph of a deceased person taken in connection with a post mortem examination,
(e)  a photograph of a deceased person taken at a crime scene.
(3)  In determining whether a thing is obscene or indecent, the fact that the thing was brought into existence, or is in the possession of a prosecuting authority, for the purpose of providing evidence of an offence is to be disregarded.
Division 2 Evidence held by prosecuting authority
281C   Accused person not entitled to copy of sensitive evidence
(1)  A prosecuting authority is not required and cannot be required (whether by subpoena or any other procedure), in or in connection with any criminal investigation or criminal proceedings, to give an accused person a copy of anything the prosecuting authority reasonably considers to be sensitive evidence.
(2)  This section applies despite anything to the contrary in this or any other Act, or any other law.
281D   Procedures for giving access to sensitive evidence to accused person
(1)  If, but for this Part, a prosecuting authority would be required, in or in connection with any criminal investigation or criminal proceedings, to provide a copy of a thing to an accused person, and the prosecuting authority does not give a copy of the thing to the accused person as a result of this Part, the prosecuting authority must give the accused person a written notice (a sensitive evidence notice) that complies with this section.
(2)  The sensitive evidence notice must—
(a)  describe the thing that the prosecuting authority considers to be sensitive evidence, and
(b)  indicate that, as the prosecuting authority considers the thing to be sensitive evidence, the prosecuting authority is not required to give the accused person a copy of the thing, and
(c)  indicate that the accused person will not be given a copy of the thing, and
(d)  contain information to the effect that the accused person is entitled to view or listen to the thing at a place nominated by the prosecuting authority and under the supervision of the prosecuting authority, and
(e)  set out the name and contact details of the person who is responsible for arranging the viewing of, or listening to, the thing on behalf of the prosecuting authority.
(3)  After receiving a sensitive evidence notice, the accused person may give the prosecuting authority a written notice (an access request notice) that indicates that the accused person requires access to the thing.
(4)  The prosecuting authority must, as soon as practicable after receiving an access request notice, give the accused person, and any other person who has been engaged to assist with the accused person’s case, reasonable access to the thing so as to enable them to view or listen to (but not copy) the thing. This may require access to be given on more than one occasion.
(5)  The prosecuting authority may require any such access to take place subject to such conditions as the prosecuting authority considers appropriate to ensure that there is no unauthorised reproduction or circulation of the thing and that the integrity of the thing is protected.
(6)  Without limiting subsection (5), the prosecuting authority may require any such access to take place under the supervision of the prosecuting authority or a person assisting the prosecuting authority.
(7)  A person who is given access to a thing by a prosecuting authority under this section must not, without the authority of the prosecuting authority—
(a)  copy, or permit a person to copy, the thing, or
(b)  give the thing to another person, or
(c)  remove the thing from the custody of the prosecuting authority.
Maximum penalty—100 penalty units, or 2 years imprisonment, or both.
(8)  The Attorney General may approve the form of any notice to be used for the purposes of this section.
281E   Prosecuting authority entitled to retain possession of sensitive evidence
(1)  If during any criminal proceedings an accused person is given sensitive evidence, or a copy of sensitive evidence, by the prosecuting authority in the proceedings, the court must, on application by the prosecuting authority, direct the accused person to return the sensitive evidence or copy to the custody of the prosecuting authority at or before the end of each day during which the proceedings are heard.
(2)  At the completion of any criminal proceedings in which sensitive evidence is tendered by the prosecuting authority, or sensitive evidence given to the accused person by the prosecuting authority is tendered by the accused person, the court must, on application by the prosecuting authority, direct that the sensitive evidence, and any copies of the sensitive evidence made for the purposes of the proceedings, be returned to the custody of the prosecuting authority.
281F   Improper copying or circulation of sensitive evidence
(1)  A person who has possession of sensitive evidence that is prosecution evidence must not copy, or permit a person to copy, the sensitive evidence, or give possession of the sensitive evidence to another person, except—
(a)  for the legitimate purposes of a criminal investigation or criminal proceedings, or
(b)  if the person is a public official, in the proper exercise of the person’s public official functions (including any functions relating to education or training).
Maximum penalty—100 penalty units, or 2 years imprisonment, or both.
(2)  For the purposes of this section, any sensitive evidence in the possession of a person is prosecution evidence if—
(a)  the person was given possession of the sensitive evidence by a prosecuting authority in or in connection with a criminal investigation or criminal proceedings, or
(b)  the person is a public official who created, or obtained possession of, the sensitive evidence in the exercise of, or as a result of an opportunity that arose in the exercise of, public official functions in or in connection with a criminal investigation or criminal proceedings.
(3)  In this section—
public official has the same meaning as in the Independent Commission Against Corruption Act 1988.
Division 3 Evidence held by health authority
281FA   Accused person not entitled to obtain sensitive evidence from health authority
(1)  In any criminal proceedings, a health authority is not required to produce, in response to a subpoena given by the accused person, anything the health authority reasonably considers to be sensitive evidence.
(2)  This section applies despite anything to the contrary in this or any other Act, or any other law.
281FB   Health authority to give sensitive evidence notice
(1)  If a health authority wishes to rely on this Division to refuse production of a thing that it would otherwise be required to produce under a subpoena, the health authority must give the court and the accused person a written notice (a sensitive evidence notice) that complies with this section.
(2)  The sensitive evidence notice must—
(a)  describe the thing that the health authority considers to be sensitive evidence, and
(b)  indicate that, as the health authority considers the thing to be sensitive evidence, the health authority is not required to produce the thing, and
(c)  indicate that the thing will not be produced, and
(d)  contain information to the effect that the accused person is entitled to view or listen to the thing in accordance with supervised access arrangements, and
(e)  set out the name and contact details of the person (the access supervisor) who is responsible for arranging access to the thing under the supervised access arrangements.
(3)  The court must, on receipt of the sensitive evidence notice, set aside the subpoena (wholly or to the extent that it relates to the sensitive evidence) and order that the accused person be given access to the sensitive evidence in accordance with the sensitive evidence notice.
(4)  The Attorney General may approve the form of a notice to be used for the purposes of this section.
281FC   Access to be given to accused person
(1)  The access supervisor under a sensitive evidence notice must, as soon as practicable after receiving a written request from the accused person, give the accused person, and any other person who has been engaged to assist with the accused person’s case, access to the sensitive evidence under supervised access arrangements.
(2)  The access supervisor must ensure that reasonable access is given. This may require access to be given on more than one occasion.
(3)  A person who is given access to a thing under supervised access arrangements must not, without the permission of the access supervisor—
(a)  copy, or permit a person to copy, the thing, or
(b)  give the thing to another person, or
(c)  remove the thing from the custody of the access supervisor.
Maximum penalty—100 penalty units, or 2 years imprisonment, or both.
281FD   Supervised access arrangements
(1)  A health authority may approve arrangements that enable an accused person, and any other person who has been engaged to assist with the accused person’s case, to view or listen to (but not copy) sensitive evidence held by the health authority. Those arrangements are supervised access arrangements.
(2)  The supervised access arrangements may require access to take place subject to such conditions as the health authority considers appropriate to ensure that there is no unauthorised reproduction or circulation of the thing and that the integrity of the thing is protected.
(3)  Without limiting subsection (2), the conditions may require access to take place under the immediate or general supervision of the health authority.
(4)  A function of a health authority under a supervised access arrangement may, with the agreement of a prosecuting authority, be exercised by the prosecuting authority on behalf of the health authority.
281FE   Health authority entitled to retain possession of sensitive evidence
(1)  If during any criminal proceedings an accused person is given sensitive evidence, or a copy of sensitive evidence, by a health authority, the court must, on application by the health authority, direct the accused person to return the sensitive evidence or copy to the custody of the health authority at or before the end of each day during which the proceedings are heard.
(2)  At the completion of any criminal proceedings in which sensitive evidence is produced by a health authority, or sensitive evidence given to the accused person by a health authority is tendered by the accused person, the court must, on application by the health authority, direct that the sensitive evidence, and any copies of the sensitive evidence made for the purposes of the proceedings, be returned to the custody of the health authority.
(3)  A function of a health authority under this section may, with the agreement of a prosecuting authority, be exercised by the prosecuting authority on behalf of the health authority. In that case, sensitive evidence is to be returned to the prosecuting authority instead of the health authority.
281FF   Improper copying or circulation of sensitive evidence
(1)  A person who has possession of sensitive evidence that is health evidence must not copy, or permit a person to copy, the sensitive evidence, or give possession of the sensitive evidence to another person, except—
(a)  for the legitimate purposes of a criminal investigation or criminal proceedings, or
(b)  if the person is a public official, in the proper exercise of the person’s public official functions (including any functions relating to education or training).
Maximum penalty—100 penalty units, or 2 years imprisonment, or both.
(2)  For the purposes of this section, any sensitive evidence in the possession of a person is health evidence if—
(a)  the person was given possession of the sensitive evidence by a health authority, or by a prosecuting authority exercising functions on behalf of a health authority, in or in connection with a criminal investigation or criminal proceedings, or
(b)  the person is a public official who created, or obtained possession of, the sensitive evidence in the exercise of, or as a result of an opportunity that arose in the exercise of, public official functions in or in connection with a criminal investigation or criminal proceedings.
(3)  A person cannot be found guilty of an offence against this section and an offence against section 281F in respect of the same act or omission.
(4)  In this section—
public official has the same meaning as in the Independent Commission Against Corruption Act 1988.
281FG   Evidence may be provided to prosecuting authority
This Part does not prevent a health authority from giving a police officer or prosecuting authority access to sensitive evidence held by the health authority in connection with any criminal investigation or criminal proceedings.