Criminal Procedure Act 1986 No 209
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.