Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 (74 of 2013)

Schedule 2   Supporting victims and witnesses in criminal proceedings

Part 1   Vulnerable witness protections

Crimes Act 1914

56   After Division 5 of Part IAD

Insert:

Division 5A - Special rules for later trials

15YNA When this Division applies

This Division applies if a proceeding (the original proceeding ) involving the trial of one or more defendants:

(a) concludes and, on appeal, a new proceeding involving the trial of any or all of the defendants is ordered; or

(b) is discontinued and a new proceeding involving the trial of any or all of the defendants is ordered.

15YNB Original evidence admissible in new proceeding

(1) For the new proceeding, the prosecutor may prepare a record of all the evidence given by any person to whom subsection (4) applies (the vulnerable person ) in the original proceeding if:

(a) the record is in a form, and is authenticated in a way, prescribed under subsection (5); and

(b) the prosecutor gives written notice to the court, and to the defendants in the new proceeding, of the prosecutor's intention to tender that record as evidence in the new proceeding; and

(c) that notice is so given:

(i) at least 21 days before the court commences hearing the new proceeding; or

(ii) within such other period as the court allows.

Note: The record would include all the evidence given in the original proceeding by the vulnerable person (whether evidence on examination in chief, on cross-examination or on re-examination).

(2) However, the prosecutor may alter or edit that record with the agreement of each defendant in the new proceeding.

(3) Both of the following are admissible as evidence in the new proceeding:

(a) a record of evidence prepared under subsection (1) and (2);

(b) the exhibits tendered in the original proceeding in connection with that evidence.

(4) This subsection applies to the following persons:

(a) if the original proceeding was a child proceeding - a child complainant;

(b) if the original proceeding was a vulnerable adult proceeding - a vulnerable adult complainant.

(5) The Minister may, in writing, prescribe the form, and ways for authenticating, records prepared under subsection (1).

15YNC Vulnerable person not to be made to give further evidence

(1) A vulnerable person whose evidence is included in a record admitted under section 15YNB need not give any further evidence in the new proceeding unless the court orders that this is necessary:

(a) to clarify the vulnerable person's evidence given in the original proceeding; or

(b) to give proper consideration of information or material that has become available since the original proceeding; or

(c) in the interests of justice.

Note: This subsection covers further evidence that could otherwise be given on examination in chief, on cross-examination or on re-examination.

(2) If the court makes an order under subsection (1), the court is to ensure that the vulnerable person is questioned in the new proceeding only about the matters specified in the order.

(3) An order under subsection (1) may be made on the court's own initiative or on application by or on behalf of a party to the new proceeding.

(4) Despite subsection (1), the vulnerable person may seek leave of the court to give further evidence in the new proceeding. Subsections (1) and (2) cease to apply to the person if leave is given.

15YND Defendants' access to video recordings

(1) If a record prepared under subsections 15YNB(1) and (2) includes a video recording, neither:

(a) the defendants in the new proceeding; nor

(b) their legal representatives in the new proceeding;

are entitled to be given the video recording or a copy of it.

(2) However, they must be given reasonable access to the video recording in order to view it.

Note: This may require access on more than one occasion.

15YNE Warnings etc. not to be given about vulnerable persons' evidence

If there is a jury in the new proceeding, the judge is not to warn the jury, or suggest to the jury in any way, that the law requires greater or lesser weight to be given to evidence that is included in a record admitted under section 15YNB.

15YNF Division applies despite other rules of evidence

This Division has effect despite the Evidence Act 1995, any other law and any other rules of evidence or procedure.