Criminal Procedure Act 2009: sexual offences

2010-01-31

So what's important here?

Well, it's all important.

But, if I were on a really tight schedule I would have a look at Chapter 8, under the innocuous-sounding title of General.

What will make the Evidence Act 2008 so difficult for generations of legal students to come is that it's natural, given the title it has been given and the way it has been laid out, to assume that it's a one-stop shop on evidence law. And, come to think of it, that's the way it was sold, too.

Then you get to s 8 of that Act and realise that any contradictory provision in any other act is going to have primacy.

So for that reason alone, dip into s 328 through 389 and see how they modify the existing law.

2010-01-24

388. Evidence of specialised knowledge in certain cases

388. Evidence of specialised knowledge in certain cases

Despite any rule of law to the contrary, in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence, the court may receive evidence of a person's opinion that is based on that person's specialised knowledge (acquired through training, study or experience) of—

(a) the nature of sexual offences; and

(b) the social, psychological and cultural factors that may affect the behaviour of a person who has been the victim, or who alleges that he or she has been the victim, of a sexual offence, including the reasons that may contribute to a delay on the part of the victim to report the offence.

There is no rule of law preventing such evidence being given (and provisions relating to the use of expert and opinion evidence in the Evidence Act 2008 would appear to permit it), but this section has been included in any case, replicating a similar provision (now repealed) from the Evidence Act 1958.

2010-01-23

369. Application of Division

369. Application of Division

(1) This Division applies to a trial in 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) if, at the time at which the proceeding commenced, the complainant—

(a) was under the age of 18 years; or

(b) had a cognitive impairment.

(3) In the Division, complainant means a complainant referred to in subsection (2).

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.

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.

366. Application of this Division

366. Application of this Division

(1) This Division applies to a criminal proceeding (other than a committal proceeding) that relates (wholly or partly) to a charge for—

(a) a sexual offence; or

(b) an indictable offence which involves an assault on, or injury or a threat of injury to, a person.

Note

For committal proceedings see Chapter 4.

(2) This Division applies to a witness in a criminal proceeding referred to in subsection (1) if the witness is—

(a) a person under the age of 18 years; or

(b) a person with a cognitive impairment.

(3) In this Division, witness means a witness referred to in subsection (2).

Section 366 is similar, but not identical, to previous provisions in the Evidence Act 1958 (repealed).

365. When court must direct presence of support person for complainant

365. When court must direct presence of support person for complainant

(1) If the witness is a complainant, the court must direct that an arrangement referred to in section 360(c) be made unless the court is satisfied that the complainant—

(a) is aware of the right of the complainant to have a support person when giving evidence; and

(b) does not wish to have a support person.

(2) Subsection (1) applies whether the witness is to give evidence in the courtroom or in another place.

This provision, unlike some others in Part 8.2, is couched in mandatory terms. Some courts require that the prosecution file a notice signed by the complainant if it is their intention to lead evidence from the witness in the courtroom.

364. When court must direct use of screens for complainant

364. When court must direct use of screens for complainant

If the witness is a complainant and is to give evidence in the courtroom, the court must direct that an arrangement referred to in section 360(b) be made unless the court is satisfied that the complainant—

(a) is aware of the right of the complainant to give evidence while screens are used to remove the accused from the direct line of vision of the complainant; and

(b) does not wish a screen to be so used.

This provision, unlike some others in Part 8.2, is couched in mandatory terms. Some courts require that the prosecution file a notice signed by the complainant if it is their intention to lead evidence from the witness in the courtroom.

363. When court must direct use of closed-circuit television or other facilities for complainant

363. When court must direct use of closed-circuit television or other facilities for complainant

If the witness is a complainant, the court must direct that an arrangement referred to in section 360(a) be made unless—

(a) the prosecution applies for the complainant to give evidence in the courtroom; and

(b) the court is satisfied that the complainant—

(i) is aware of the right of the complainant to give evidence in another place by closed-circuit television or other facilities; and

(ii) is able and wishes to give evidence in the courtroom.

This provision, unlike some others in Part 8.2, is couched in mandatory terms. Some courts require that the prosecution file a notice signed by the complainant if it is their intention to lead evidence from the witness in the courtroom.

362. Evidence given by closed-circuit television or other facilities

362. Evidence given by closed-circuit television or other facilities

(1) This section applies to arrangements referred to in section 360(a) that are directed to be made under that section.

(2) Any place outside the courtroom where the witness is permitted to give evidence is taken to be part of the courtroom while the witness is there for the purpose of giving evidence.

(3) The court must direct that any evidence given by the witness is recorded.

(4) The court may make any order it considers appropriate to enable the witness to view any place or thing, or identify any person or thing, for the purposes of the proceeding or the evidence of the witness.

361. Jury warning concerning alternative arrangements

361. Jury warning concerning alternative arrangements

If the court directs that alternative arrangements be made for the giving of evidence by a witness, the trial judge must warn the jury not to draw any inference adverse to the accused or give the evidence any greater or lesser weight because of the making of those arrangements.

360. Alternative arrangements for giving evidence

360. Alternative arrangements for giving evidence

The court may direct that alternative arrangements be made for the giving of evidence by a witness, including arrangements—

(a) permitting the evidence to be given from a place other than the courtroom by means of closed-circuit television or other facilities that enable communication between that place and the courtroom;

(b) using screens to remove the accused from the direct line of vision of the witness;

(c) permitting a person, chosen by the witness and approved by the court for this purpose, to be beside the witness while the witness is giving evidence, for the purpose of providing emotional support to the witness;

(d) permitting only persons specified by the court to be present while the witness is giving evidence;

(e) requiring legal practitioners not to robe;

(f) requiring legal practitioners to be seated while examining or cross-examining the witness.

Notes

1 Section 337(1) enables this direction to be made by the court on the application of a party or on its own motion.

2 Section 337(2) provides that this direction may be varied or revoked.

359. Application of Division

359. Application of Division

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

(a) a sexual offence; or

(b) an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008.

(2) This Division applies to all witnesses (including complainants) in a criminal proceeding referred to in subsection (1).

(3) This Division applies at any stage of the criminal proceeding, including an appeal or rehearing.

358. Jury warning concerning legal representation for cross-examination

358. Jury warning concerning legal representation for cross-examination

If the accused is only legally represented for the cross-examination of a protected witness, the trial judge must warn the jury—

(a) that it is routine practice for an unrepresented accused to obtain or be provided with legal representation for the cross-examination of a protected witness; and

(b) that no adverse inference may be drawn against the accused as a result of the cross-examination not being conducted by the accused in person; and

(c) that the evidence given under cross-examination is not to be given any greater or lesser weight as a result of the cross-examination not being conducted by the accused in person.

357. When accused is not legally represented

357. When accused is not legally represented

(1) If the accused is not legally represented, the court must—

(a) inform the accused and the jury (if any) that the accused is not permitted personally to cross-examine a protected witness; and

(b) ask the accused whether the accused has sought legal representation for the cross-examination of a protected witness; and

(c) if satisfied that the accused has not had a reasonable opportunity to obtain legal representation, grant an adjournment if so requested by the accused.

(2) If the accused does not obtain legal representation for the cross-examination of a protected witness (after being given a reasonable opportunity to do so), the court must order Victoria Legal Aid to provide legal representation for the accused for that purpose.

(3) Despite anything in the Legal Aid Act 1978, Victoria Legal Aid must provide legal representation in accordance with an order under subsection (2).

(4) A legal practitioner provided by Victoria Legal Aid must act in the best interests of the accused if the accused does not give any instructions to that legal practitioner.

(5) If the accused refuses the legal representation provided under subsection (3), or otherwise refuses to co-operate, the court must warn the accused that the accused will not be permitted to adduce evidence in relation to a fact in issue in order to contradict the evidence of a protected witness unless the evidence on which the accused intends to rely has been put to the protected witness during cross-examination.

This provision (acting together with ss 355 and 356) effectively prohibit an accused from cross-examining a protected person, and place the accused at an extreme tactical disadvantage if they fail to retain counsel.

356. Protected witness not to be cross-examined by accused in person

356. Protected witness not to be cross-examined by accused in person

A protected witness must not be cross-examined by the accused in person.

355. Court may declare witness to be protected witness

355. Court may declare witness to be protected witness

The court may at any time declare a witness to be a protected witness.

353. Application of Division

353. Application of Division

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

(a) a sexual offence; or

(b) an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008.

(2) This Division applies to a protected witness in a criminal proceeding referred to in subsection (1).

352. Limitation on sexual history evidence

352. Limitation on sexual history evidence

Sexual history evidence is not to be regarded—

(a) as having a substantial relevance to the facts in issue by virtue of any inferences it may raise as to general disposition; or

(b) as being proper matter for cross-examination as to credit unless, because of special circumstances, it would be likely materially to impair confidence in the reliability of the evidence of the complainant.

351. Court must state reasons if leave granted

351. Court must state reasons if leave granted

(1) If the court grants leave under section 342 it—

(a) must state in writing the reasons for granting leave; and

(b) cause those reasons to be entered in the records of the court.

(2) The failure of a court to comply with subsection (1) does not invalidate any order made by it.

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