Criminal Procedure Act 1986 No 209
Current version for 1 July 2020 to date (accessed 5 August 2020 at 15:52)
Chapter 6 Part 4B
Part 4B Giving of evidence by domestic violence complainants
Division 1 Preliminary
289C   Interpretation
(1)  In this Part—
complainant means a domestic violence complainant.
recording means—
(a)  an audio recording, or
(b)  a video and audio recording.
view a video recording means view and listen to.
(2)  Words and expressions that are defined in the Evidence Act 1995 and that are used in this Part have the same meanings in this Part as they have in the Evidence Act 1995.
289D   Meaning of “recorded statement”
In this Act, a recorded statement means a recording made by a police officer of a representation made by a complainant when the complainant is questioned by a police officer in connection with the investigation of the commission of a domestic violence offence if—
(a)  the recording is made with the informed consent of the complainant, and
(b)  the questioning occurs as soon as practicable after the commission of the offence.
289E   Relationship to Evidence Act 1995
The provisions of this Part are in addition to the provisions of the Evidence Act 1995 and do not, unless a contrary intention is shown, affect the operation of that Act.
Note.
 For example, provisions of that Act such as section 21 (relating to oaths and affirmations) and section 65 (an exception to the hearsay rule where a person is not available to give evidence) are not affected by this Part.
Division 2 Giving of evidence of out of court representations
289F   Complainant may give evidence in chief in form of recording
(1)  In proceedings for a domestic violence offence, a complainant may give evidence in chief of a representation made by the complainant wholly or partly in the form of a recorded statement that is viewed or heard by the court.
(2)  A representation contained in a recorded statement may be in the form of questions and answers.
(3)  A recorded statement must contain the following statements by the complainant—
(a)  a statement as to the complainant’s age,
(b)  a statement as to the truth of the representation,
(c)  any other matter required by the rules.
(4)  If the representation contained in a recorded statement, or part of it, is in a language other than English—
(a)  the recorded statement must contain an English translation of the representation or part, or
(b)  a separate written English translation of the representation or part must accompany the recorded statement.
(5)  A complainant who gives evidence wholly or partly in the form of a recorded statement must subsequently be available for cross-examination and re-examination—
(a)  orally in the courtroom, or
(b)  in accordance with any other alternative arrangements permitted for the complainant under this or any other Act.
(6)  This section does not prevent a complainant from giving evidence in any other manner permitted for the complainant under this Act or any other law.
289G   Determination as to whether evidence will be given by recording
In determining whether or not to have a complainant give evidence wholly or partly in the form of a recorded statement, the prosecutor must take into account the following matters—
(a)  the wishes of the complainant,
(b)  any evidence of intimidation of the complainant by the accused person,
289H   Use of evidence in concurrent or related domestic violence proceedings
(1)  This section applies if an application for an order under the Crimes (Domestic and Personal Violence) Act 2007 is made concurrently with proceedings for a domestic violence offence or arises from the circumstances of the alleged domestic violence offence.
(2)  If evidence is given wholly or partly in the form of a recorded statement in the proceedings for the domestic violence offence, that evidence may also be given in that form in the proceedings relating to the application for the order. Any such evidence is to be given in accordance with any rules made under the Crimes (Domestic and Personal Violence) Act 2007.
289I   Admissibility of recorded evidence
(1)  The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent the admission or use of evidence of a representation in the form of a recorded statement.
(2)  Evidence of a representation of a complainant that is given in the form of a recorded statement is not to be admitted unless the accused person was given, in accordance with Division 3, a reasonable opportunity to listen to, and, in the case of a video recording, view the recorded statement.
(3)  However, the recorded statement may be admitted even if the requirements of Division 3 have not been complied with if the court is satisfied that—
(a)  the parties consent to the recorded statement being admitted, or
(b)  the accused person or his or her Australian legal practitioner (if any) have been given a reasonable opportunity otherwise than in accordance with Division 3 to listen to or view the recorded statement and it would be in the interests of justice to admit the recorded statement.
289J   Warning to jury
If a complainant gives evidence wholly or partly in the form of a recorded statement in accordance with this Division in proceedings in which there is a jury, the judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the evidence being given in that way.
289K   Transcripts of recordings
The court may order that a transcript of all or part of the evidence given in the form of a recorded statement be supplied to the jury if it appears to the court that a transcript would be likely to aid the jury’s comprehension of the evidence.
Division 3 Service of and access to recorded statements
289L   Service of recorded statement
(1)  This section applies if an accused person is represented by an Australian legal practitioner in proceedings for a domestic violence offence in which it is proposed to give the evidence of a complainant wholly or partly in the form of a recorded statement.
(2)  The prosecutor must cause a copy of the recorded statement to be served on the Australian legal practitioner representing the accused person as soon as practicable after the proceedings are commenced or the prosecutor determines that evidence is to be given in the form of the recorded statement, whichever occurs later.
289M   Access to recorded statement
(1)  This section applies if an accused person is not represented by an Australian legal practitioner in proceedings for a domestic violence offence in which it is proposed to give the evidence of a complainant wholly or partly in the form of a recorded statement.
(2)  The prosecutor must cause an audio copy of the recorded statement to be served on the accused person as soon as practicable after the proceedings are commenced or the prosecutor determines that evidence is to be given in the form of the recorded statement, whichever occurs later.
(3)  The prosecutor must also, so far as is reasonably practicable, provide the accused person with an opportunity to view a recorded statement that is in the form of a video recording at a police station on at least one of the following occasions—
(a)  when the accused person is being questioned in relation to the alleged domestic violence offence,
(b)  at the request of the accused person, on a day arranged with the accused person,
(c)  on another day specified by notice in writing given to the accused person by the prosecutor before committal proceedings or the trial commences.
(4)  If it is not reasonably practicable for the prosecutor to comply with subsection (3), the prosecutor must provide the accused person with an opportunity to view a recorded statement that is in the form of a video recording on a day on which proceedings relating to the offence are being held.
(5)  Evidence may not be adduced in any proceedings of the behaviour or response of an accused person when viewing a recorded statement at a place specified for that purpose under this section, unless—
(a)  the viewing took place while the person was being questioned in relation to an alleged domestic violence offence, or
(b)  the proceedings relate to the behaviour.
(6)  Any period during which an accused person views a video recording under subsection (3) (a) is to be included in the time to be taken into account for the purposes of determining the maximum investigation period under section 115 of the Law Enforcement (Powers and Responsibilities) Act 2002.
Division 4 Miscellaneous
289N   Validity of proceedings not affected
(1)  The failure of a complainant to give evidence in accordance with a provision of this Part does not affect the validity of any proceeding or any decision made in connection with that proceeding.
(2)  The failure of a police officer to record a representation of a complainant in accordance with the requirements of any rules or regulations made under this Part does not affect the validity of any proceeding in which evidence of the representation is given.
289O   Prosecutor entitled to retain possession of recorded statement
(1)  At the completion of any criminal proceedings in which a recorded statement is played, the court must, on application by the prosecutor, direct that the recorded statement be returned to the custody of the prosecutor.
(2)  In this section, a reference to a recorded statement includes a reference to any copy of a recorded statement made for the purposes of the proceedings.
289P   Improper copying or dissemination of recorded statement
(1)  A person who has possession of a recorded statement must not copy, or permit a person to copy, the recorded statement, give possession of the recorded statement to another person or publish the recorded statement, 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)  This section does not permit any person, including an Australian legal practitioner who represents an accused person, to give possession of a video copy of a recorded statement to the accused person or to permit the accused person to copy or obtain a copy of a recorded statement.
(3)  In this section, a reference to a recorded statement includes a reference to any copy of a recorded statement made for the purposes of the proceedings.
(4)  An offence under this section is to be dealt with summarily.
(5)  In this section—
public official has the same meaning as in the Independent Commission Against Corruption Act 1988.
publish means disseminate or provide access to one or more persons by means of the internet, radio, television or other media.
289Q   Court powers
(1)  The court may make, vary or revoke an order under a provision of this Part either on its own motion or on application by a party to the proceeding or by the complainant giving evidence.
(2)  Unless a contrary intention is shown, nothing in this Part limits any discretion that a court has with respect to the conduct of a proceeding.
(3)  Without limiting any other power of a court to adjourn proceedings, a court may adjourn any proceedings relating to a domestic violence offence for not more than 14 days to enable an accused person to view or listen to a recorded statement on the ground that the accused person has not had a reasonable opportunity to view or listen to the recording.
289R   Rules of court
Rules of court may (subject to any regulations made under this Act) be made in respect of the giving of evidence in the form of a recorded statement in proceedings for a domestic violence offence.
289S   Regulations
Without limiting any other provision of this Part, regulations may be made for or with respect to the following matters—
(a)  the giving of informed consent to the recording of a representation for the purposes of a recorded statement,
(b)  service of, or access to, a recorded statement,
(c)  the form in which a copy of a recorded statement is served on an accused person.