387. Exception to hearsay rule

387. Exception to hearsay rule

(1) In this section—

hearsay rule has the same meaning as in the Evidence Act 2008.

(2) The hearsay rule does not prevent—

(a) the admission of a recording in accordance with this Division; or

(b) the use of the recording to prove the existence of a fact that the complainant intended to assert by a representation made in the recorded evidence.

Due to s 8 of the Evidence Act 2008, the hearsay rule would otherwise not prevent the operation of these provisions. Either this section is directed toward the common law hearsay rule or, as is more likely, the section was enacted through an abundance of caution.

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386. Form in which recording of complainant's evidence is to be tendered

386. Form in which recording of complainant's evidence is to be tendered

(1) A recording that is tendered as evidence by the prosecution under this Division must be the best available record, or be comprised of the best available records, of the evidence of the complainant.

(2) In subsection (1)—
the best available record of the evidence, or any part of the evidence, means an audiovisual recording of the evidence.

(3) In exceptional circumstances and having regard to whether the accused would be unfairly prejudiced, the court may admit as evidence an audio recording of the evidence, or any part of the evidence, if an audiovisual recording of the evidence is not available.

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385. Cross-examination of complainant

385. Cross-examination of complainant

(1) Subject to section 384(2), if a recording of the evidence of the complainant is admitted into evidence in a proceeding, the complainant cannot be cross-examined or re examined without leave.

(2) A court must not grant leave to cross-examine a complainant unless the court is satisfied that—

(a) the accused is seeking leave because of becoming aware of a matter of which the accused could not reasonably have been aware at the time of the recording; or

(b) if the complainant were giving direct testimony in the proceeding, the complainant could be recalled, in the interests of justice, to give further evidence; or
(c) it is otherwise in the interests of justice to permit the complainant to be cross-examined or re-examined.

(3) If leave is granted under subsection (2), the complainant must attend the proceeding to be cross-examined or re-examined.

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384. Direct testimony in addition to recording

384. Direct testimony in addition to recording

(1) On the application of the prosecution, the court may direct that the complainant is to give direct testimony additional to a recording admitted into evidence if the court is satisfied that—

(a) the complainant is able and wishes to give direct testimony; and

(b) it is in the interests of justice to do so.

(2) A complainant may be cross-examined and re examined in relation to any direct testimony given by the complainant in response to a direction under subsection (1).

Note

Any other cross-examination requires leave under section 385.

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383. Attendance of complainant

383. Attendance of complainant

Subject to sections 384 and 385, if a recording is admitted into evidence in a proceeding, the complainant is not required to attend the proceeding unless required to do so to give further evidence.

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382. Jury warning as to recorded evidence of complainant

382. Jury warning as to recorded evidence of complainant

If a recording is admitted into evidence under section 381, the trial judge must warn the jury—

(a) that no adverse inference may be drawn against the accused as a result of the evidence being recorded; and

(b) that the evidence of the complainant is not to be given any greater or lesser weight as a result of the evidence being recorded.

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381. Admission of recording of evidence of complainant

381. Admission of recording of evidence of complainant

(1) The court may admit a recording of the evidence of the complainant if it is in the interests of justice to do so, having regard to—

(a) whether the complainant's recorded evidence is complete, including cross-examination and re-examination;

(b) the effect of editing any inadmissible evidence from the recording;

(c) the availability or willingness of the complainant to give further evidence;

(d) whether the accused would be unfairly disadvantaged by the admission of the recording;

(e) any other matter that the court considers relevant.

(2) The court may admit the whole or any part of the contents of a recording and may direct that the recording be edited or altered to delete any part of it that is inadmissible.

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380. Prosecution to give notice of intention to tender recording

380. Prosecution to give notice of intention to tender recording

(1) If the prosecution intends to apply to tender a recording as evidence in a proceeding referred to in section 379, the prosecution must serve on the accused and file in court written notice of that intention at least 21 days before the day on which the trial or hearing is listed to commence.

(2) The court may dispense with or vary a requirement imposed by subsection (1).

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379. Admissibility of recording of complainant's evidence

379. Admissibility of recording of complainant's evidence

Subject to section 381, a recording is admissible in evidence as if its contents were the direct testimony of the complainant—

(a) in the proceeding; and

(b) unless the relevant court otherwise orders, in—

(i) any new trial of, or appeal from, the proceeding; or

(ii) another proceeding in the same court for the charge for a sexual offence or a charge for a related offence; or

(iii) a civil proceeding arising from the same facts as those on which the charge for a sexual offence is founded.

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378. Application of Division

378. Application of Division

(1) This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence.

(2) This Division applies to a complainant in a criminal proceeding referred to in subsection (1), other than a complainant whose evidence has been taken at a special hearing under Division 6.

(3) This Division applies to a recording of the evidence (including cross-examination and re-examination) of a complainant given during a trial in a criminal proceeding referred to in subsection (1).

(4) If the jury is discharged without verdict before a complainant completes his or her evidence, this Division applies to a recording of the partial evidence of the complainant.

(5) In this Division—

complainant means a complainant referred to in subsection (2);
recording means a recording referred to in subsection (3) or (4).

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376. Cross-examination of complainant

376. Cross-examination of complainant

(1) A complainant whose evidence is recorded under section 370 cannot be cross-examined or re-examined without leave.

(2) A court must not grant leave to cross-examine a complainant referred to in subsection (1) unless the court is satisfied that—

(a) the accused is seeking leave because of becoming aware of a matter of which the accused could not reasonably have been aware at the time of the recording; or

(b) if the complainant were giving direct testimony in the proceeding, the complainant could be recalled, in the interests of justice, to give further evidence; or

(c) it is otherwise in the interests of justice to permit the complainant to be cross-examined or re-examined.

(3) If leave is granted under subsection (2), the complainant must attend the proceeding to be cross-examined or re-examined.

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375. Jury warning as to recording of special hearing

375. Jury warning as to recording of special hearing

If a recording of a special hearing is admitted into evidence under section 374, the trial judge must warn the jury—

(a) that it is routine practice for the evidence of a complainant who is under the age of 18 years or has a cognitive impairment to be recorded at a special hearing before the trial; and

(b) that no adverse inference may be drawn against the accused as a result of the evidence being recorded; and

(c) that the evidence of the complainant is not to be given any greater or lesser weight as a result of the evidence being recorded.

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374. Admissibility of evidence from special hearing

374. Admissibility of evidence from special hearing

(1) In this section—
recording means a recording referred to in section 370(1).

(2) Subject to subsection (3), a recording is admissible in evidence as if its contents were the direct testimony of the complainant—

(a) in the proceeding; and

(b) unless the relevant court otherwise orders, in—

(i) any new trial of, or appeal from, the proceeding; or

(ii) another proceeding in the same court for the charge for a sexual offence or a charge for a related offence; or

(iii) a civil proceeding arising from the same facts as those on which the charge for a sexual offence is founded.

(3) The court may rule as inadmissible the whole or any part of the contents of a recording and, if so, the court may direct that the recording be edited or altered to delete any part of it that is inadmissible.

Note

A party may apply for a ruling under subsection (3): section 337.

(4) Subject to subsection (3), the whole of a recording must be heard by the court.

(5) The admissibility of a recording of the evidence of a person under the age of 18 years is not affected only because the person attains the age of 18 years before the evidence is presented in a proceeding.

(6) Subject to section 376(3), if under this section a recording is admitted into evidence in a proceeding, the complainant is not required to attend the proceeding unless required to do so for cross-examination or re examination.

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373. Form in which recording of special hearing is to be tendered

373. Form in which recording of special hearing is to be tendered

(1) A recording referred to in section 370(1) that is tendered as evidence by the prosecution must be the best available record, or be comprised of the best available records, of the evidence of the complainant.

(2) In subsection (1)—
the best available record of the evidence, or any part of the evidence, means an audiovisual recording of the evidence.

(3) In exceptional circumstances and having regard to whether the accused would be unfairly prejudiced, the court may admit as evidence an audio recording of the evidence, or any part of the evidence, if an audiovisual recording of the evidence is not available.

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372. Conduct of special hearing

372. Conduct of special hearing

(1) At a special hearing—

(a) the accused and his or her legal practitioner are to be present in the courtroom;

(b) the accused—

(i) is not to be in the same room as the complainant when the complainant's evidence is being taken;

(ii) is entitled to see and hear the complainant while the complainant is giving evidence and to have at all times the means of communicating with his or her legal practitioner;

(c) no person, other than a person authorised by the court, is to be present in the courtroom or the same room as the complainant when the complainant's evidence is being taken;

(d) the evidence of the complainant is to be given by means of closed-circuit television or other facilities that enable communication between the room in which the complainant is present and the courtroom;

(e) except as provided by this Division, the usual rules of evidence apply.

(2) The room in which the complainant gives evidence is taken to be part of the courtroom while the complainant is there for the purpose of giving evidence.

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371. Time limits for special hearing

371. Time limits for special hearing

(1) If a special hearing is to be held, it must be held—

(a) within 3 months after the day on which the accused is committed for trial; and

(b) before the court at which the indictment is filed.

Note

Section 212 imposes time limits for commencing trials for sexual offences.

(2) The court may extend the time for holding a special hearing if, because of the existence of exceptional circumstances, the court considers that it is in the interests of justice to do so.

(3) The court may extend time under subsection (2) before or after the time expires.

(4) More than one extension of time may be granted under subsection (2).

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370. Special hearing for pre-recording evidence

370. Special hearing for pre-recording evidence

(1) Subject to subsection (2), the whole of the evidence (including cross-examination and re-examination) of a complainant must be—

(a) given at a special hearing under this Division and recorded as an audiovisual recording; and

(b) presented to the court in the form of that recording.

(2) On the application of the prosecution, the court may direct that subsection (1) is not to apply and that the complainant is to give direct testimony in the proceeding if the court is satisfied that the complainant—

(a) is aware of the right of the complainant to have his or her evidence taken at a special hearing under this Division and audiovisually recorded; and

(b) is able and wishes to give direct testimony in the proceeding.

Note

Division 4 provides that the court may make alternative arrangements for the giving of direct testimony.

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368. Admissibility of recorded evidence-in-chief

368. Admissibility of recorded evidence-in-chief

(1) Subject to subsection (3), a recording referred to in section 367 is admissible as evidence in a summary hearing, special hearing or trial in the proceeding as if its contents were the direct testimony of the witness if—

(a) a transcript of it was served personally on the accused in accordance with section 391, or on the legal practitioner representing the accused in accordance with section 394—

(i) in the case of a summary proceeding, at least 14 days before the contest mention hearing or, if a contest mention hearing is not held, the summary hearing;

(ii) in the case of a trial, at least 14 days before the day on which the trial is listed to commence or, if a special hearing is to be held, at least 14 days before that hearing; and

(b) the court is satisfied that the accused and the legal practitioner of the accused were given, in accordance with the regulations, a reasonable opportunity to listen to and, in the case of an audiovisual recording, view the recording; and

(c) at the summary hearing, special hearing or trial, the witness—

(i) identifies himself or herself and attests to the truthfulness of the contents of the recording; and

(ii) is available for cross-examination and re-examination.

(2) The admissibility of a recording of the evidence of a person under the age of 18 years is not affected only because the person attains the age of 18 years before the evidence is presented in a proceeding.

(3) The court may rule as inadmissible the whole or any part of the contents of a recording.

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367. Use of recorded evidence-in-chief

367. Use of recorded evidence-in-chief

A witness may give evidence-in-chief (wholly or partly) in the form of an audio or audiovisual recording of the witness answering questions put to him or her by a person prescribed by the regulations for the purposes of this section.

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