Evidence (Miscellaneous Provisions) Act 1991

16 November 2025. It also includes any commencement, amendment, repeal or expiry affecting this republished law to 16 November 2025. The legislation history and amendment history of the republished law are set out in endnotes 3 and 4. Kinds of republications The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at www.legislation.act.gov.au): • authorised republications to which the Legislation Act 2001 applies • unauthorised republications. The status of this republication appears on the bottom of each page. Editorial changes The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication. Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice. This republication includes amendments made under part 11.3 (see endnote 1). Uncommenced provisions and amendments If a provision of the republished law has not commenced, the symbol U appears immediately before the provision heading. Any uncommenced amendments that affect this republished law are accessible on the ACT legislation register (www.legislation.act.gov.au). For more information, see the home page for this law on the register. Modifications If a provision of the republished law is affected by a current modification, the symbol M appears immediately before the provision heading. The text of the modifying provision appears in the endnotes. For the legal status of modifications, see the Legislation Act 2001, section 95. Penalties At the republication date, the value of a penalty unit for an offence against this law is $160 for an individual and $810 for a corporation (see Legislation Act 2001, s 133).

contents 1 Page 1 Name of Act 2 2 Dictionary 2 3 Notes 2 4 Offences against Act—application of Criminal Code etc 3 4AA Definitions—ch 1A 4 4AB Direction to hold ground rules hearing 4 4AC Ground rules hearings—time limits 5 4AD Ground rules hearings—who must attend 5

Page contents 2 Evidence (Miscellaneous Provisions) Act 1991 4AE Ground rules hearings—intermediary’s report 5 4AF Ground rules hearings—directions 6

Chapter 1B Witness intermediaries—criminal 4AG Definitions 7 4AH Panel of witness intermediaries 7 4AI Functions of witness intermediaries 8 4AJ Appointment of witness intermediary—generally 8 4AK Appointment of witness intermediary—prescribed witnesses 9 4AL Appointment of witness intermediary—suitability of the intermediary for the witness etc 10 4AM Witness to give evidence in presence of intermediary 11 4AN Relationship to other provisions of this Act 11 4A Principles for dealing with child witnesses 12 5 Definitions—pt 2.2 13 6 Meaning of give evidence in a proceeding by audiovisual link—pt 2.2 13 7 Sworn or unsworn evidence 13 8 Proceedings to which pt 2.2 applies 14 9 Child giving evidence by audiovisual link 14 10 Representation of child 15 11 Consequential orders—pt 2.2 15 12 Making of orders—pt 2.2 16 13 Jury warning about inferences from child giving evidence by audiovisual link 17 14 Failure to comply with pt 2.2 17 15 Child turns 18 during proceeding 17

Page contents 3 16 Definitions—ch 3 18 17 Application—ch 3 19 18 Operation of other Acts 19 Part 3.2 Use of audiovisual links or audio links with participating States in ACT proceedings 19 Application—pt 3.2 20 20 Territory courts may take evidence and submissions from participating States 20 21 Legal practitioners entitled to practise 21 Part 3.3 Use of interstate audiovisual links or audio links in proceedings in participating States 22 Application—pt 3.3 22 23 Recognised courts may take evidence or receive submissions from people in ACT 22 24 Powers of recognised courts 22 25 Orders made by recognised court 23 26 Enforcement of order 23 27 Privileges, protection and immunity of participants in proceedings in courts of participating States 23 28 Recognised court may administer oath in ACT 24 29 Assistance to recognised court 24 Part 3.4 Use of audiovisual links or audio links with other places in ACT proceedings 31 Application—pt 3.4 25 32 Territory courts may take evidence and submissions from another place 25 Part 3.5 Protection of certain communications and documents in criminal proceedings 33 Application—pt 3.5 27

Page contents 4 Evidence (Miscellaneous Provisions) Act 1991 34 Protection of confidentiality 27 35 Application of Listening Devices Act 27 35A Application—pt 3.6 29 35B Administration of oaths and affirmations by audiovisual or audio link 29 35C Putting documents to person by audiovisual or audio link 30 35D Premises to be considered part of territory court 30 36 Power to order payment of costs 31 Chapter 4 Sexual, violent and family violence offence 37 Meaning of proceeding—pt 4.1 32 38 Meaning of family violence offence proceeding—ch 4 32 38A Meaning of family violence offence—ch 4 32 39 Meaning of less serious violent offence proceeding—ch 4 33 40 Meaning of serious violent offence proceeding—ch 4 34 41 Meaning of sexual offence proceeding—ch 4 35 41A References to accused people—sexual offence proceedings under Work Health and Safety Act 2011 36 Part 4.2 What special requirements apply to particular 42 Definitions—pt 4.2 37 43 Special requirements—particular proceedings 39 44 Court may inform itself about particular witnesses 44 45 Failure to comply with ch 4 44 Division 4.3.1 Preliminary—pt 4.3 46 Definitions—pt 4.3 45 47 Accused may be screened from witness in court 45

Page contents 5 48 No examination of witness by self-represented accused person 46 49 Witness may have support person in court 47 50 Evidence to be given in closed court 48 Division 4.3.3 Special requirements—audiovisual recording of police 51 Meaning of audiovisual recording—div 4.3.3 49 52 Police interview audiovisual recording may be admitted as evidence 50 53 Police interview audiovisual recording—notice 50 54 Police interview audiovisual recording—notice for access 51 55 Police interview audiovisual recording—access to accused person 51 56 Police interview audiovisual recording—admissibility 52 57 Police interview audiovisual recording—jury trial 52 58 Transcript of police interview audiovisual recording—access to court 53 59 Police interview audiovisual recording—offences 53 60 Witness may give evidence at pre-trial hearing 54 61 Who may be present at pre-trial hearing 55 62 Evidence of witness at pre-trial hearing to be evidence at hearing 55 63 Witness may be required to attend hearing 56 64 Evidence of witness at pre-trial hearing—jury trial 57 65 Recording of witness’s evidence at pre-trial hearing admissible in related hearing 57 66 Audiovisual recording of child’s evidence—admissibility 59 67 Meaning of give evidence—div 4.3.5 59 68 Giving evidence by audiovisual link 59 69 Recording evidence given by audiovisual link or in courtroom 60 70 Consequential orders—div 4.3.5 62 71 Making of orders—div 4.3.5 63 72 Jury warning about inferences from witness giving evidence by audiovisual link 63

Page contents 6 Evidence (Miscellaneous Provisions) Act 1991 Part 4.4 Special requirements—sexual offence and family violence offence proceedings 73 Certain evidence to be given in closed court 64 74 Prohibition of publication of complainant’s identity 65 74A Evidence of family violence may be relevant evidence 66 Division 4.4.2 Sexual offence proceedings—evidence of complainant’s sexual reputation and activities 75 Immunity of sexual reputation 68 76 General immunity of evidence of complainant’s sexual activities 68 77 Application for leave under s 76 68 78 Decision to give leave under s 76 69 Division 4.4.3 Sexual and family violence offence proceedings— protection of counselling communications 79 Definitions—div 4.4.3 69 79A Meaning of protected confidence—div 4.4.3 72 79B When does div 4.4.3 apply? 74 79C Immunity for protected confidences in preliminary criminal proceedings 74 79D General immunity for protected confidences 75 79E Application for leave to disclose protected confidence 75 79F Threshold test––legitimate forensic purpose 77 79G Preliminary examination of protected confidence evidence 77 79H Giving of leave to disclose protected confidence 79 79I Ancillary orders for protection of person who made protected confidence 80 79IA Counselled person may appear in proceeding if protected confidence sought to be disclosed 81 79IB Court must be satisfied counselled person is informed of rights under div 4.4.3 82 79J No waiver of protected confidence immunity 82 79K No protected confidence immunity for medical information 82 79L No protected confidence immunity for communications for criminal investigations and proceedings 83 79M No protected confidence immunity in case of misconduct 83

Page contents 7 Division 4.4.4 Sexual offence proceedings—directions and warnings to juries 80 Comments on complainants’ evidence 84 80A Comments on children’s evidence 84 80B Comments about lack of, or delays in making, complaint 84 80C Directions about implied consent 85 Part 4.5 Special requirements—family violence offence proceedings 81 Meaning of recorded statement—pt 4.5 86 Division 4.5.2 Family violence offence proceedings—recorded statement of police interview 81A Recorded statement—requirements 87 81B Recorded statement—may be admitted as evidence 89 81C Recorded statement—hearsay rule and opinion rule 90 81D Validity of proceeding not affected 90 81E Recorded statement—represented accused person to be given copy 90 81F Recorded statement—unrepresented accused person to be given access 91 81G Recorded statement—admissibility 92 81H Recorded statement—accused person to be given audio copy 92 81I Recorded statement—jury trial 92 81J Recorded statement—offence to publish 93 Division 4.5.3 Recorded statement of police interview admissible as evidence—application for protection order 81K Recorded statement—may be admitted as evidence in application for family violence protection order 94 Chapter 5 Certain evidence under court rules not admissible 82 Evidence not admissible in court—neutral evaluation 95 83 Evidence not admissible in court—expert report 96 84 Evidence not admissible in court—meeting of experts 96 85 Evidence not admissible in court—evidence taken in examination 97

Page contents 8 Evidence (Miscellaneous Provisions) Act 1991 Chapter 6 Evidence in criminal proceedings— dangerously ill people 90 Meaning of dangerously ill person—ch 6 99 91 Application—ch 6 99 92 Recording of evidence of dangerously ill person 99 93 Notice of evidence of dangerously ill person 100 94 Admissibility of recording of evidence of dangerously ill person 100 95 Definitions—ch 6 102 96 Victim impact statements—cross-examination in principal proceeding 102 97 Victim impact statements—use in other proceeding 103 Part 7.1 Evidence of witnesses with disabilities or vulnerabilities 100 Meaning of witness with a disability—pt 7.1 104 101 Child or witness with disability may have support person in court 104 102 Witness with vulnerability may give evidence in closed court 105 103 Making of s 101 and s 102 orders—court not bound by rules of evidence 106 Part 7.2 Evidence in any proceedings—miscellaneous 104 Proof of document under law of Commonwealth country 107 Part 7.3 Evidence in any proceedings—extended application of Evidence Act 105 Extended application of Evidence Act—interpreters 109 110 Application—ch 8 110 111 Prohibition of publication of evidence etc 110

Page contents 9 112 Noncompliance with s 111 order 111 120 Approved forms 112 121 Regulation-making power 112 Chapter 13 Transitional—Crimes (Disclosure) Legislation Amendment Act 2024 165 Meaning of commencement day—ch 13 113 166 Amendments do not apply to proceedings begun before commencement day 113 167 Amendments apply to protected confidences made before, on or after commencement day 113 168 Expiry—ch 13 113 Dictionary 114 1 About the endnotes 120 2 Abbreviation key 120 3 Legislation history 121 4 Amendment history 130 5 Earlier republications 165 6 Expired transitional or validating provisions 170 7 Renumbered provisions 170

An Act about evidence

1 Name of Act This Act is the Evidence (Miscellaneous Provisions) Act 1991.

2 Dictionary The dictionary at the end of this Act is part of this Act. Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act. For example, the signpost definition ‘participating State, for chapter 3 (Use of audiovisual links and audio links)––see section 16.’ means that the term ‘participating State’ is defined in section 16 for chapter 3. Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

3 Notes A note included in this Act is explanatory and is not part of this Act. Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Preliminary Chapter 1

4 Offences against Act—application of Criminal Code etc Other legislation applies in relation to offences against this Act. Note 1 Criminal Code The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1). The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability). Note 2 Penalty units The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

Chapter 1A Ground rules hearings— 4AA Definitions—ch 1A ground rules hearing means a hearing for a witness in a criminal proceeding, where the court— (a) considers the communication, support or other needs of the (b) decides how the proceeding must be conducted to fairly and effectively meet those needs. witness, in a criminal proceeding, includes the accused person in the 4AB Direction to hold ground rules hearing (1) A court may, at any time, if satisfied that it is in the interests of justice, direct that a ground rules hearing be held for a witness in a criminal (2) However, if an intermediary is appointed for a witness in a criminal proceeding, the court must direct that a ground rules hearing be held for the witness. (3) The court may make a direction— (a) on its own initiative; or (b) on the application of— (i) the DPP; or (ii) the witness; or (iii) the accused person. (4) An application may be made orally or in writing.

Ground rules hearings—criminal proceedings Chapter 1A 4AC Ground rules hearings—time limits (1) If a court directs that a ground rules hearing be held for a witness in a criminal proceeding, the ground rules hearing must be held before the witness gives evidence in the proceeding. (2) The court may extend the time for holding a ground rules hearing if the court considers that it is in the interests of justice to do so. 4AD Ground rules hearings—who must attend (1) The following people must attend a ground rules hearing for a witness in a criminal proceeding: (a) the DPP; (b) the lawyer representing the accused person or, if the accused person is not represented by a lawyer in the proceeding, the accused person; (c) any intermediary appointed for the witness. (2) The witness is not required to attend a ground rules hearing. (3) If an intermediary is appointed for the witness, the court may make an order that the witness not attend a ground rules hearing. 4AE Ground rules hearings—intermediary’s report If an intermediary is appointed for a witness before a ground rules hearing is held for the witness, the intermediary must— (a) prepare a written report about the communication needs of the (b) give the report to the court before the ground rules hearing.

4AF Ground rules hearings—directions (1) At a ground rules hearing for a witness in a criminal proceeding, the court may make any direction the court considers is in the interests of justice, including any of the following: (a) a direction about how a witness may be questioned; (b) a direction about how long a witness may be questioned; (c) a direction about the questions that may or may not be asked of a witness; (d) if there is more than 1 accused—a direction about the allocation among the accused of the topics about which a witness may be asked; (e) a direction about the use of models, plans, body maps or other aids to help communicate a question or an answer; (f) a direction about the use of a support animal by the witness; (g) a direction that if a party intends to give evidence that contradicts or challenges the evidence of a witness or that otherwise discredits a witness, the party is not obliged to put that evidence in its entirety to the witness in cross-examination. (2) If an intermediary’s report has been given to the court under section 4AE, the court must consider the matters mentioned in the report in making the direction.

Chapter 1B Witness intermediaries— 4AG Definitions (1) In this Act: intermediary means a person— (a) on the intermediaries panel; or (b) on a panel (however described) with functions substantially corresponding to the functions of the intermediaries panel, in the Commonwealth, a State, the United Kingdom or New Zealand. Note State includes the Northern Territory (see Legislation Act, dict, pt 1). (2) In this chapter: intermediaries administrator means the person prescribed by regulation as the intermediaries administrator. witness, in a criminal proceeding, includes the defendant in the 4AH Panel of witness intermediaries The intermediaries administrator must establish and maintain a panel of people (the intermediaries panel) who have— (a) either— (i) a tertiary qualification in psychology, social work, speech pathology or occupational therapy; or (ii) other qualifications, training, experience or skills prescribed by regulation; or (b) qualifications, training, experience or skills suitable to exercise the functions mentioned in section 4AI.

Chapter 1B Witness intermediaries—criminal proceedings 4AI Functions of witness intermediaries (1) The functions of an intermediary appointed for a witness are to— (a) prepare and provide reports about the witness’s communication needs as required; and (b) at a hearing— (i) communicate to the witness questions put to the witness, to the extent necessary for the witness to understand the questions; and (ii) communicate to the person putting questions to the witness, the witness’s answers to the questions, to the extent necessary for the person to understand the answers; and (iii) otherwise assist the court, and any lawyer appearing in the proceeding, to communicate with the witness. (2) An intermediary appointed for a witness is an officer of the court and must act impartially when assisting communication with the witness. 4AJ Appointment of witness intermediary—generally (1) A court may appoint an intermediary in a criminal proceeding for a witness with a communication difficulty— (a) on its own initiative; or (b) on the application of— (i) the DPP; or (ii) the witness; or (iii) the accused person. Example—communication difficulty a mental or physical disability that impedes speech

(2) A court must not appoint an intermediary for a witness under this section if satisfied that the witness— (a) is aware of their right to make an application for an intermediary to be appointed; and (b) is able to, and wishes to, give evidence without the assistance of an intermediary. (3) In making a decision under this section, the court is not bound by the rules of evidence and may inform itself as it considers appropriate. 4AK Appointment of witness intermediary—prescribed witnesses (1) A court must appoint an intermediary in a criminal proceeding for a witness prescribed by regulation. (2) However, the court need not appoint an intermediary for a witness under this section if— (a) there is no-one available who— (i) meets the needs of the witness; and (ii) satisfies the requirements in section 4AL; or (b) it is not in the interests of justice to appoint an intermediary. (3) Also, the court must not appoint an intermediary for a witness under this section if satisfied that the witness— (a) is aware of their right to an intermediary; and (b) is able to, and wishes to, give evidence without the assistance of an intermediary. (4) In making a decision under subsection (2) or (3), the court is not bound by the rules of evidence and may inform itself as it considers

Chapter 1B Witness intermediaries—criminal proceedings 4AL Appointment of witness intermediary—suitability of the intermediary for the witness etc (1) A court may appoint an intermediary for a witness in a criminal proceeding only if— (a) the intermediaries administrator is satisfied the intermediary has qualifications, training, experience or skills suitable for the (b) if the intermediary is a designated person—the court is satisfied— (i) there is no other suitable intermediary reasonably (ii) the appointment is in the interests of justice. (2) In making a decision under subsection (1), the court is not bound by the rules of evidence and may inform itself as it considers appropriate. designated person, in relation to a criminal proceeding, means a person who is— (a) a relative, friend or acquaintance of the witness or the accused person; or (b) a person who has assisted the witness (other than as an intermediary) or the accused person in a professional capacity; or (c) a party or potential witness in the proceeding.

4AM Witness to give evidence in presence of intermediary (1) If a court appoints an intermediary for a witness in a criminal proceeding, the witness must give their evidence in the presence of the intermediary. (2) Evidence of a witness given in the presence of an intermediary must be given in circumstances in which— (a) the court and any lawyer appearing in the proceeding are able to— (i) see and hear the witness giving evidence; and (ii) communicate with the intermediary; and (b) the jury (if any) is able to see and hear the witness giving evidence, including any assistance given by the intermediary. Note A person must take an oath or make an affirmation before acting as an intermediary in a proceeding (see Evidence Act 2011, s 22). (3) If the proceeding is a trial by jury, the court must tell the jury that— (a) a witness giving evidence in the presence of an intermediary is a usual practice; and or give the evidence more or less weight, because the intermediary is present. (4) An order that the court be closed to the public does not stop an intermediary for a witness being in court while the witness gives 4AN Relationship to other provisions of this Act This part does not affect the operation of any other provision in this Act.

4A Principles for dealing with child witnesses The following general principles apply when dealing with a child witness in a proceeding: (a) the child must be treated with dignity, respect and compassion; (b) measures should be taken to limit, to the greatest practical extent, the distress and trauma suffered by the child when giving evidence; (c) the child should not be intimidated in cross-examination; (d) the proceeding should be resolved as quickly as possible.

Part 2.2 Evidence of children— audiovisual links

5 Definitions—pt 2.2 court means— (a) the Supreme Court; or (b) the Magistrates Court; or (c) the Coroner’s Court. Magistrates Court includes— (a) the Childrens Court; and (b) the Industrial Court. proceeding means a proceeding to which this part applies.

6 Meaning of give evidence in a proceeding by audiovisual link—pt 2.2 give evidence, in a proceeding by audiovisual link, means to give evidence in the proceeding by audiovisual link from an external place which is linked to the courtroom by an audiovisual link.

7 Sworn or unsworn evidence For this part, it does not matter whether evidence is to be, or is being, given on oath or otherwise.

8 Proceedings to which pt 2.2 applies This part applies to— (a) a proceeding in the Supreme Court— (i) for a trial on indictment in relation to the alleged commission of an offence against a law in force in the ACT; or (ii) for the passing of sentence in relation to the commission of an offence against a law in force in the ACT; or (iii) by way of an appeal from a conviction, order, sentence or other decision of the Magistrates Court in a proceeding in relation to which this part applies; or (b) a proceeding in the Magistrates Court on an information in relation to the alleged commission, or commission, of an offence against a law in force in the ACT; or (c) a proceeding under the Family Violence Act 2016; or (d) a proceeding under the care and protection chapters of the Children and Young People Act 2008; or (e) a proceeding by way of an inquest or inquiry in the Coroner’s Court.

9 Child giving evidence by audiovisual link (a) a child is to give evidence in a proceeding; and (b) the proceeding is to be heard in a courtroom; and (c) the courtroom and an external place are linked by an audiovisual link. (2) The child’s evidence must be given by audiovisual link unless the court otherwise orders.

(3) However, the evidence of a child who is an accused person in a proceeding is not to be given by audiovisual link. (4) The court may make an order under subsection (2) only if satisfied (a) the child prefers to give evidence in the courtroom; or (i) the proceeding may be unreasonably delayed; or (5) While the child is at the external place to give evidence, the place is taken to be part of the courtroom.

10 Representation of child (a) a child is to give evidence in a proceeding by audiovisual link; and (b) the child is not separately represented by someone else; and (c) the court considers that the child should be separately represented by someone else. (2) The court may— (a) order that the child be separately represented by someone else; and (b) make any other order it considers necessary to arrange the separate representation.

11 Consequential orders—pt 2.2 (1) This section applies if a child is to give evidence in a proceeding by

(2) The court may make any order it considers appropriate–– (a) to ensure that the proceeding is conducted fairly; or (b) to allow the child to identify a person or thing; or (c) to allow the child to take part in a view or to watch a demonstration or experiment; or (d) to allow part of the proceeding to be heard somewhere other than in the courtroom. (3) The court may make any other order it considers appropriate, including, for example, an order stating–– (a) who may be with the child at the external place; or (b) who must not be with the child at the external place; or (c) who, in the courtroom, is to be able, or must not be able, to be heard, or seen and heard, by the child and people in the external place with the child; or (d) who, in the courtroom, is to be able to see and hear the child and anyone else in the external place with the child; or (e) how the audiovisual link is to operate. (4) The court may order that a person be excluded from the external place while the child is giving evidence. (5) The court may direct that an order under this section apply only to a particular part of the proceeding.

12 Making of orders—pt 2.2 (1) The court may make an order under this part in a proceeding on its own initiative or on the application of— (a) a party to the proceeding; or (b) the child or a person acting on the child’s behalf; or

(c) the child’s parent or guardian. (2) For the purpose of making an order under this part, the court is not bound by the rules of evidence and may inform itself as it considers

13 Jury warning about inferences from child giving evidence by audiovisual link (a) a child gives evidence in a proceeding by audiovisual link; and (b) the proceeding is before a jury. (2) The judge must warn the jury to the effect that the jury should not draw any inference against an accused person in the proceeding from the fact that the child’s evidence is given by audiovisual link.

14 Failure to comply with pt 2.2 (1) If the evidence of a child is not given in accordance with this part, the evidence is not inadmissible for that reason only. (2) Failure to comply with this part in relation to a proceeding does not affect the validity of the proceeding.

15 Child turns 18 during proceeding If a child is to give evidence in a proceeding and the child turns 18 years old before the proceeding is finally disposed of, this part continues to apply to the person for the proceeding.

Chapter 3 Use of audiovisual links and audio links 16 Definitions—ch 3 (1) In this chapter: audio link means a system of 2-way communication linking different places so that a person speaking at any of them can be heard at the other places. participating State means another State where provisions of an Act in terms substantially corresponding to this chapter are in force. recognised court means a court or tribunal of a participating State that is authorised by the provision of an Act of the State in terms substantially corresponding to this chapter to direct that evidence be taken or a submission made by audiovisual link or audio link from the ACT. State includes Territory. territory court means— (a) a court constituted under a territory law; or (b) a royal commission under the Royal Commissions Act 1991; or (c) a judicial commission under the Judicial Commissions Act 1994; or (d) a tribunal of the Territory; or (e) an arbitral tribunal conducting a proceeding under the Commercial Arbitration Act 2017; or (f) the sentence administration board; or

Preliminary—ch 3 Part 3.1 (g) a presiding officer under the Corrections Management Act 2007, chapter 11 (Disciplinary inquiries); or (h) a review officer under the Children and Young People Act 2008, chapter 9 (Criminal matters—conduct of disciplinary reviews). tribunal, in relation to a State, means an entity authorised under the law of the State to take evidence on oath. arbitral tribunal—see the Commercial Arbitration Act 2017,

17 Application—ch 3 This chapter applies in relation to all proceedings, including— (a) proceedings pending at the commencement of this chapter; and (b) proceedings started after the commencement of this chapter that arise from circumstances, matters or events that arose or happened before that commencement.

18 Operation of other Acts (1) This chapter is not intended to exclude or limit the operation of any territory law that makes provision for the taking of evidence or making of a submission in an external place for a proceeding in the ACT. external place means a place within or outside the ACT but within Australia that is outside the courtroom or other place where the court is sitting.

Part 3.2 Use of audiovisual links or audio links with participating States in ACT Part 3.2 Use of audiovisual links or audio links with participating States in ACT proceedings

19 Application—pt 3.2 Note Proceeding—see the Legislation Act, dictionary, pt 1.

20 Territory courts may take evidence and submissions from (1) A territory court may, on the application of a party to a proceeding before the court or on its own initiative, direct that evidence be taken or a submission made by audiovisual link or audio link, from a participating State. (2) The court may make the direction only if satisfied that— (a) the necessary facilities are available or can reasonably be made (b) the evidence or submission can more conveniently be given or made from the participating State; and (c) the making of the direction is not unfair to a party opposing the making of the direction. (3) The court may exercise in the participating State, in relation to taking evidence or receiving a submission by audiovisual link or audio link, any of its powers that the court is permitted, under the law of the participating State, to exercise in the participating State. (4) The court may at any time amend or revoke a direction under this part, either on the application of a party to the proceeding or on its own initiative.

Part 3.2

21 Legal practitioners entitled to practise A person who is entitled to practise as a legal practitioner in a participating State is entitled to practise as a legal practitioner— (a) in relation to the examination in chief, cross-examination or re- examination of a witness in the participating State whose evidence is being given by audiovisual link or audio link in a proceeding before a territory court; and (b) in relation to the making of a submission by audiovisual link or audio link from the participating State in a proceeding before a territory court.

Part 3.3 Use of interstate audiovisual links or audio links in proceedings in Part 3.3 Use of interstate audiovisual links or audio links in proceedings in participating States

22 Application—pt 3.3 This part applies to any proceeding before a recognised court.

23 Recognised courts may take evidence or receive submissions from people in ACT A recognised court may, for a proceeding before it, take evidence or receive a submission by audiovisual link or audio link from a person in the ACT.

24 Powers of recognised courts (1) The recognised court may, for the proceeding, exercise in the ACT, in relation to taking evidence or receiving a submission by audiovisual link or audio link, any of its powers except its powers— (a) to punish for contempt; and (b) to enforce or execute its judgments or process. (2) The laws of the participating State (including rules of court) that apply to the proceeding in that State also apply, by operation of this subsection, to the practice and procedure of the recognised court in taking evidence or receiving a submission by audiovisual link or audio link from a person in the ACT. (3) For the exercise by the recognised court of its powers, the place in the ACT where evidence is given or a submission is made is taken to be part of the court.

Part 3.3

25 Orders made by recognised court Without limiting section 24, the recognised court may, by order— (a) direct that the proceeding, or a part of the proceeding, be conducted in private; or (b) require a person to leave a place in the ACT where the giving of evidence or the making of a submission is taking place or is going to take place; or (c) prohibit or restrict the publication of evidence given in the proceeding or of the name of a party to, or a witness in, the

26 Enforcement of order (1) Subject to rules of court, an order under section 25 may be enforced by the Supreme Court as if the order were an order of that court. (2) Without limiting subsection (1), a person who contravenes the order— (a) is taken to be in contempt of the Supreme Court; and (b) is punishable accordingly; unless the person establishes that the contravention should be excused.

27 Privileges, protection and immunity of participants in proceedings in courts of participating States (1) A judge or other person presiding at or otherwise taking part in a proceeding before a recognised court has, in relation to evidence being taken or a submission being received by audiovisual link or audio link from a person in the ACT, the same privileges, protection and immunity as a judge of the Supreme Court.

Part 3.3 Use of interstate audiovisual links or audio links in proceedings in (2) A person appearing as a legal practitioner in a proceeding before a recognised court has, in relation to evidence being taken or a submission being received by audiovisual link or audio link from a person in the ACT, the same protection and immunity as a barrister has in appearing for a party in a proceeding before the Supreme Court. (3) A person appearing as a witness in a proceeding before a recognised court by audiovisual link or audio link from the ACT has the same protection as a witness in a proceeding before the Supreme Court.

28 Recognised court may administer oath in ACT (1) A recognised court may, for the purpose of obtaining in a proceeding, by audiovisual link or audio link, the testimony of a person in the ACT, administer an oath in accordance with the practice and procedure of the recognised court. (2) A proceeding in which evidence is given on oath administered under subsection (1) is a legal proceeding for the Criminal Code, chapter 7 (Administration of justice offences). Note That chapter includes offences (eg perjury, falsifying evidence, failing to attend and refusing to be sworn) applying in relation to tribunal proceedings.

29 Assistance to recognised court An officer of a territory court may, at the request of a recognised court— (a) attend at the place in the ACT where evidence is to be or is being taken, or a submission is to be or is being made, in the proceeding; and (b) take the action that the recognised court directs to facilitate the proceeding; and (c) assist with the administering by the recognised court of an oath.

Use of audiovisual links or audio links with other places in ACT Part 3.4 Part 3.4 Use of audiovisual links or audio links with other places in ACT 31 Application—pt 3.4 32 Territory courts may take evidence and submissions from another place (1) Subject to any Act or rules of court, a territory court may, on the application of a party to a proceeding before it or on its own initiative, direct that a person, whether or not a party to the proceeding, appear before, or give evidence or make a submission to, the court by audiovisual link or audio link from— (a) a place in the ACT that is outside the courtroom or other place where the court is sitting; or (b) a place outside the ACT but within Australia; or Note If the place is a participating jurisdiction, a territory court may make a direction (on application or on its own initiative) under pt 3.2 (Use of audiovisual links or audio links with participating States in ACT proceedings). (c) a place outside Australia (other than New Zealand). Note The Trans-Tasman Proceedings Act 2010 (Cwlth), pt 6, div 2 (Remote appearances from New Zealand in Australian proceedings) and the Court Procedures Rules 2006, div 6.10A.4 (Trans-Tasman proceedings—remote appearances) apply to remote appearances from New Zealand in an ACT

Part 3.4 Use of audiovisual links or audio links with other places in ACT (2) The court may make the direction only if satisfied that— (a) the necessary facilities are available or can reasonably be made (b) it is in the interests of the administration of justice to make the direction. (3) In considering whether it is in the interests of the administration of justice to make the direction, the court may consider— (a) whether the evidence or submission can more conveniently be given or made from the place; and (b) whether the making of the direction is unfair to any party opposing the making of the direction; and (c) whether the making of the direction could support court efficiency by reducing costs or delay to the proceeding; and (d) anything else that the court considers appropriate. (4) The court may at any time amend or revoke a direction made under this part, either on the application of a party to the proceeding or its own initiative.

Part 3.5 Part 3.5 Protection of certain communications and documents in criminal proceedings

33 Application—pt 3.5 This part applies to a communication made, and a document transmitted, by audiovisual link or audio link between an accused person and his or her legal representative during the course of a proceeding in relation to which, or to a part of which, an audiovisual or audio link has been used under this chapter or a provision of another territory law.

34 Protection of confidentiality Without limiting any other protection that applies to it, a communication or document to which this part applies is as confidential and inadmissible in any proceeding as it would be if it had been made or produced while the accused person and his or her legal representative were in each other’s presence.

35 Application of Listening Devices Act The Listening Devices Act 1992 applies to a communication or document to which this part applies as if— (a) for a communication—the communication were a private conversation within the meaning of that Act to which the parties were the accused person and his or her legal representative; and

Part 3.5 Protection of certain communications and documents in criminal (b) for a document— (i) any data, text or visual images in the transmitted document were words spoken to or by a person in a private conversation within the meaning of that Act to which the parties were the accused person and his or her legal representative; and (ii) a reference in that Act to the use of a listening device to overhear, record, monitor or listen to a private conversation included a reference to reading the document.

General matters Part 3.6

35A Application—pt 3.6 Note The Trans-Tasman Proceedings Act 2010 (Cwlth), pt 6, div 2 (Remote appearances from New Zealand in Australian proceedings) and the Court Procedures Rules 2006, div 6.10A.4 (Trans-Tasman proceedings— remote appearances) apply to remote appearances from New Zealand in a proceeding in an Australian court or a prescribed Australian tribunal.

35B Administration of oaths and affirmations by audiovisual or audio link (1) An oath to be sworn, or an affirmation to be made, by a person (the remote person) who is to give evidence by audiovisual link or audio link may be administered— (a) by audiovisual link or audio link, in a way that, as nearly as practicable, corresponds to the way in which the oath or affirmation would be administered if the remote person were to give evidence in the courtroom or other place where a territory court is sitting; or (b) if the territory court allows another person who is present at the place where the remote person is located to administer the oath or affirmation—by the other person.

(2) However, a person giving evidence by audiovisual link or audio link from a place outside Australia is not required to give the evidence on oath or affirmation if— (a) the law in force in that place— (i) does not permit the person to give evidence on oath or affirmation for the purposes of the proceeding; or (ii) would make it inconvenient for the person to give evidence on oath or affirmation for the purposes of the proceeding; and (b) the territory court is satisfied that it is appropriate for the evidence to be given otherwise than on oath or affirmation. (3) Subsection (2) applies despite anything to the contrary in the Evidence Act 2011 or any other territory law.

35C Putting documents to person by audiovisual or audio link (1) This section applies if, in the course of an examination or appearance of a person by audiovisual link or audio link, it is necessary to put a document to the person. (2) The territory court may direct or allow the document to be put to the person in any way that the court considers appropriate.

35D Premises to be considered part of territory court (1) This section applies to any place within or outside the ACT where audiovisual link or audio link facilities are being used for a person to give evidence or make a submission in any proceeding. (2) The place is taken, for all purposes, to be part of the territory court that is sitting at a courtroom or other place to conduct the proceeding.

General matters Part 3.6 (3) To remove any doubt, a law relating to evidence, procedure, contempt of court, perjury or otherwise relating to the administration of justice will apply in relation to the place in the same way it applies in relation to the courtroom or other place. • Court Procedures Act 2004 • Court Procedures Rules 2006 • Criminal Code, ch 7 • Evidence Act 2011

36 Power to order payment of costs A territory court that directs evidence to be taken, or a submission to be made, by audiovisual link or audio link under section 20 (1) (Territory courts may take evidence and submissions from participating States) or section 32 (1) (Territory courts may take evidence and submissions from another place) may make the orders it considers just for the payment of the costs and expenses incurred in relation to taking the evidence or making the submission, including any amounts prescribed by regulation.

Chapter 4 Sexual, violent and family violence offence proceedings

37 Meaning of proceeding—pt 4.1 proceeding, for an offence, includes the following in relation to the offence: (a) a trial, including a re-trial; (b) a hearing, including a pre-trial hearing and ground rules hearing; (c) a committal hearing; (d) a proceeding in relation to bail; (e) an interlocutory proceeding; (f) a sentencing proceeding; (g) an appeal or other review.

38 Meaning of family violence offence proceeding—ch 4 family violence offence proceeding means a proceeding for a family violence offence.

38A Meaning of family violence offence—ch 4 family violence offence—see the Family Violence Act 2016,

Kinds of proceedings Part 4.1

39 Meaning of less serious violent offence proceeding—ch 4 less serious violent offence proceeding means— (a) a proceeding for an offence against any of the following provisions of the Crimes Act 1900: (i) section 21 (1) (Wounding); (ii) section 22 (Assault with intent to commit other offence); (iii) section 23 (1) (Inflicting actual bodily harm); (iv) section 24 (1) (Assault occasioning actual bodily harm); (v) section 25 (Causing grievous bodily harm); (vi) section 26 (Common assault); (vii) section 28 (Acts endangering health etc); (viii) section 29 (4) and (5) (Culpable driving of motor vehicle); (ix) section 31 (Threat to inflict grievous bodily harm); (x) section 37 (Abduction of young person); (xi) section 41 (Exposing or abandoning child); (xii) section 116 (Destroying or damaging property); or (b) a proceeding for an offence against the Criminal Code, section 403 (Damaging property); or (c) a proceeding for an offence against the Personal Violence Act 2016, section 35 (Offence—contravention of protection order).

40 Meaning of serious violent offence proceeding—ch 4 serious violent offence proceeding means— (a) a proceeding for an offence against any of the following provisions of the Crimes Act 1900: (i) section 12 (Murder); (ii) section 15 (Manslaughter); (iii) section 19 (Intentionally inflicting grievous bodily harm); (iv) section 20 (Recklessly inflicting grievous bodily harm); (v) section 21 (2) (Wounding); (vi) section 23 (2) (Inflicting actual bodily harm); (vii) section 24 (2) (Assault occasioning actual bodily harm); (viii) section 27 (Acts endangering life etc); (ix) section 29 (2) and (3) (Culpable driving of motor vehicle); (x) section 30 (Threat to kill); (xi) section 32 (Demands accompanied by threats); (xii) section 34 (Forcible confinement); (xiii) section 35 (Stalking); (xiv) section 36 (Torture); (xv) section 38 (Kidnapping); (xvi) section 40 (Unlawfully taking child etc); (xvii) section 42 (Child destruction); (xviii) section 43 (Childbirth—grievous bodily harm); or

Kinds of proceedings Part 4.1 (b) a proceeding for an offence against any of the following provisions of the Criminal Code: (i) section 309 (Robbery); (ii) section 310 (Aggravated robbery); (iii) section 311 (Burglary) if the complainant was in the building at the time of the offence; (iv) section 312 (Aggravated burglary) if the complainant was in the building at the time of the offence.

41 Meaning of sexual offence proceeding—ch 4 sexual offence proceeding means— (a) a proceeding for an offence (a sexual offence) against any of the following provisions of the Crimes Act 1900: (i) part 3 (Sexual offences); (ii) part 4 (Female genital mutilation); (iii) part 5 (Sexual servitude); or (b) a proceeding for an offence against the Family Violence Act 2016, section 43 (Offence—contravention of family violence order) if the family violence order was made because of a sexual offence, or an alleged sexual offence, against the person protected under the order; or (c) a proceeding for an offence against the Personal Violence Act 2016, section 35 (Offence—contravention of protection order) if the protection order was made because of a sexual offence, or an alleged sexual offence, against the person protected under the order; or

(d) a proceeding for an offence against any of the following provisions of the Work Health and Safety Act 2011 if the offence involves a suspected or alleged sexual assault or any other act of a sexually offensive, intimidating or humiliating nature: (i) section 31 (Negligence or reckless conduct—category 1); (ii) section 32 (Failure to comply with health and safety duty—category 2); (iii) section 33 (Failure to comply with health and safety duty—category 3); or (e) a proceeding for an offence against the Work Health and Safety Act 2011, section 38 (1) if the notifiable incident involves a sexual assault incident, within the meaning of that Act, section 37A.

41A References to accused people—sexual offence proceedings under Work Health and Safety Act 2011 (1) This section applies to a proceeding mentioned in section 41, definition of sexual offence proceeding, paragraph (d) or (e). (2) A reference to an accused person in the following provisions includes a person who is suspected or alleged to have committed the sexual assault or other act of a sexually offensive, intimidating or humiliating nature to which the proceeding relates: (a) section 47 (1); (b) section 60 (6) (a) and (b); (c) section 68 (5) (a) and (b); (d) section 76 (2); (e) section 80C.

Part 4.2 What special requirements apply to particular proceedings

42 Definitions—pt 4.2 child, in a proceeding, means a witness (including a complainant or similar act witness) who was a child— (a) at the time the proceeding started; or (b) if the witness gives evidence in an audiovisual recording—at the time the recording was made; or (c) for a complainant in a sexual offence proceeding—at the time of the offence the subject of the proceeding. complainant, in relation to a proceeding for an offence— (a) means a person— (i) against whom the offence is alleged, or has been found, to be committed; and (ii) for a family violence offence proceeding—who is also a family member of the accused person; and (b) for a sexual offence proceeding for an offence against the Work Health and Safety Act 2011—includes a person against whom a sexual assault or an act of a sexually offensive, intimidating or humiliating nature is suspected or alleged, or has been found, to have been committed. family member—see the Family Violence Act 2016, section 9. intellectually impaired—a person is intellectually impaired if the person has— (a) an appreciably below average general intellectual function; or

(b) a cognitive impairment (including dementia or autism) arising from an acquired brain injury, neurological disorder or a developmental disorder; or (c) any other intellectual disability. similar act witness means a witness in a proceeding for an offence who gives, or intends to give, evidence in the proceeding that— (a) relates to an act committed on, or in the presence of, the witness by the accused; and (b) is tendency evidence or coincidence evidence under the Evidence Act 2011. special relationship witness means— (a) in a sexual offence proceeding involving a child complainant— a witness who— (i) is a close family member of the complainant; or (ii) the court considers— (A) has a beneficial supporting relationship with the complainant in the proceeding; and (B) will be able to provide emotional support for the complainant after the proceeding; or (b) in a serious violent offence proceeding involving the death of a person—a witness who is a close friend or family member of the person. vulnerable adult means an adult complainant, or similar act witness, in a proceeding for an offence who the court considers— (a) has a vulnerability that is likely to affect the complainant’s or witness’s ability to give evidence because of the circumstances of the proceeding or the complainant’s or witness’s circumstances; or

(b) is likely to suffer severe emotional trauma, or be intimidated or distressed, by giving evidence in the proceeding otherwise than in accordance with this part; or (c) needs to give evidence as soon as practicable because the complainant or witness is likely to suffer severe emotional trauma, or be intimidated or distressed. witness with disability means a witness in a proceeding for an offence who has a mental or physical disability that affects the person’s ability to give evidence.

43 Special requirements—particular proceedings A provision mentioned in column 3 of a table in this section, for a particular proceeding, applies to the kind of witness mentioned in column 2 of the table for the proceeding. Note 1 An intellectually impaired witness may also be a witness with disability if the witness’s impairment affects the witness’s ability to give evidence (see s 42, def witness with disability). Note 2 Section 101 (Child or witness with disability may have support person in court) also applies to a child or witness with disability in other proceedings. Note 3 The court may also appoint an intermediary for a witness (see s 4AJ and s 4AK).

Table 43.1 Family violence offence proceeding item • for a complainant who is intellectually impaired— div 4.3.3 (Special requirements—audiovisual • div 4.3.5 (Giving evidence by audiovisual link) other than s 69 (Recording evidence given by audiovisual link or in courtroom) • div 4.4.3 (Sexual and family violence offence proceedings—protection of counselling communications) • for a complainant who is not intellectually impaired or a child on the day recorded evidence is taken— pt 4.5 (Special requirements—family violence offence proceedings) • div 4.3.5 (Giving evidence by audiovisual link) other than s 69 (Recording evidence given by audiovisual link or in courtroom)

Table 43.2 Less serious violent offence proceeding item 1 complainant • for a vulnerable adult—div 4.3.2 (Special requirements—general) • for a vulnerable adult—div 4.3.5 (Giving evidence by audiovisual link) other than s 69 (Recording evidence given by audiovisual link or in courtroom) 2 similar act witness • for a vulnerable adult—div 4.3.2 (Special requirements—general) • for a vulnerable adult—div 4.3.5 (Giving evidence by audiovisual link) other than s 69 (Recording evidence given by audiovisual link or in courtroom) Table 43.3 Serious violent offence proceeding item

item • for a proceeding involving the death of a close friend or family member of the witness—div 4.3.4 (Giving evidence at pre-trial hearing) 6 special relationship • s 48 (No examination of witness by self-represented accused person)

Table 43.4 Sexual offence proceeding item • for a vulnerable adult—div 4.3.4 (Giving evidence at pre-trial hearing) • pt 4.4 (Special requirements—sexual offence proceedings) • for a vulnerable adult—div 4.3.4 (Giving evidence at pre-trial hearing) • pt 4.4 (Special requirements—sexual offence proceedings) 6 special relationship

44 Court may inform itself about particular witnesses In deciding whether a person is a witness mentioned in this part, the court is not bound by the rules of evidence and may inform itself as it considers appropriate.

45 Failure to comply with ch 4 (1) If the evidence of a witness is not given in accordance with this chapter, the evidence is not inadmissible for that reason only. (2) Failure to comply with this chapter in relation to a proceeding does not affect the validity of the proceeding.

Preliminary—pt 4.3 Division 4.3.1

Division 4.3.1 Preliminary—pt 4.3

46 Definitions—pt 4.3 relevant proceeding, in a provision of this part, means a proceeding to which the provision applies under section 43. witness, in a provision of this part, means a witness to whom the provision applies under section 43.

47 Accused may be screened from witness in court (1) A court may order in a relevant proceeding that the courtroom be arranged in a way that, while a witness is giving evidence, the witness cannot see— (a) the accused person; or (b) anyone else the court considers should be screened from the witness. (2) However, the witness must be visible to— (a) the presiding judicial officer; and (b) if the proceeding is a trial by jury—the jury; and (c) the accused person; and (d) the accused person’s lawyer; and (e) if the court has ordered that a person should be screened from the complainant or a similar act witness—the person; and (f) the prosecutor.

48 No examination of witness by self-represented accused person (1) A witness in a relevant proceeding must not be examined personally by the accused person but may be examined instead by— (a) the accused person’s legal representative; or (b) if the accused person does not have a legal representative— a person appointed by the court. (2) If the accused person does not have a legal representative, the court must, as soon as practicable, tell the person— (a) about the terms of subsection (1); and (b) that the person may not present evidence from another witness in relation to a fact in issue to contradict the evidence of the witness in relation to the fact if the fact in the other witness’s evidence intended to contradict the witness’s evidence has not been put to the witness in cross-examination. (3) A person appointed by the court for subsection (1) (b) may ask the witness only the questions that the accused person asks the person to put to the witness, and must not independently give the accused person legal or other advice. Note If the court considers a question to be unduly annoying, harassing, intimidating etc, the court must disallow it or tell the witness that it need not be answered (see Evidence Act 2011, s 41 (1) (Improper questions)). (4) If the accused person does not have a legal representative, the court may, if it considers it is in the interests of justice, do 1 or more of the following: (a) adjourn the relevant proceeding to enable the person to obtain a legal representative to conduct the examination; (b) make— (i) an order that the person obtain legal representation; and

Special requirements—general Division 4.3.2 (ii) any other order the court considers necessary to secure legal representation for the person. (5) If the relevant proceeding is a trial by jury, the court must tell the jury (a) the accused person may not examine the witness personally; and (b) obtaining, or being provided with, legal representation to examine the witness, or having the accused person’s questions put to the witness by a person appointed by the court, is a usual practice; and (c) the jury must not draw any inference against the accused person, or give the evidence more or less weight, because the examination is not conducted personally by the accused person. (6) In this section: examine includes cross-examine and re-examine.

49 Witness may have support person in court (1) A court must, in a relevant proceeding, on application by a party who intends to call a witness, order that the witness have a person (a support person) in the court close to the witness, and within the witness’s sight, while the witness gives evidence. (2) The court may order that a witness have more than 1 support person if it considers it is in the interests of justice. (3) The support person must not— (a) speak for the witness during the relevant proceeding; or (b) otherwise interfere in the proceeding. (4) Unless the court otherwise orders, the support person must not be, or be likely to be, a witness or party in the proceeding.

(5) If the relevant proceeding is a trial by jury, the court must tell the jury (a) a witness having a support person in the court while giving evidence is a usual practice; and or give the evidence more or less weight, because the support person is present.

50 Evidence to be given in closed court (1) A court in a relevant proceeding may order that the court be closed to the public while all or part of the witness’s evidence (including evidence given under cross-examination) is given. Note 1 Section 73 allows the court to close the court so that pre-trial evidence can be given in sexual offence proceedings. Note 2 The accused is entitled to a fair and public hearing, but the court may (2) In deciding whether to order that the court be closed to the public, the court must consider whether— (a) the witness wants to give evidence in open court; and (b) it is in the interests of justice that the witness give evidence in open court. (3) However, an order under this section does not stop the following people from being in court while the witness gives evidence: (a) a person nominated by the witness; (b) a person who attends the relevant proceeding to prepare a news report of the proceeding and is authorised to attend for that purpose by the person’s employer. Note Publishing certain information in relation to sexual offence proceedings is an offence (see s 74).

(4) In this section, a reference to a person giving evidence in a relevant proceeding includes the person giving evidence by the playing of an audiovisual recording of the evidence in the proceeding under this part. Division 4.3.3 Special requirements—audiovisual recording of police interview

51 Meaning of audiovisual recording—div 4.3.3 (1) For this division, an audiovisual recording is an audiovisual recording that is of a witness in a relevant proceeding answering questions of a prescribed person in relation to the investigation of an offence the subject of the proceeding. (2) The audiovisual recording must include the following: (a) the date when, and the place where, the recording was made; (b) the times when the recording started and ended; (c) the times when any break in questioning started and ended, and the reason for the break; (d) the name of each person present during any part of the recording; (e) for each person present during any part of the recording—the part when the person was present. (3) The audiovisual recording must— (a) be certified by a prescribed person as an accurate record of the witness answering the questions; and (b) not be edited or changed, unless the court hearing the relevant proceeding in which the recording is tendered otherwise orders. Example—court ordering change editing the recording to omit inadmissible material

Division 4.3.3 Special requirements—audiovisual recording of police interview

52 Police interview audiovisual recording may be admitted as evidence (1) An audiovisual recording may— (a) be played at the hearing of a relevant proceeding for the offence the subject of the proceeding; and (b) if the recording is played at the hearing—be admitted as the witness’s evidence in chief in the proceeding as if the witness gave the evidence at the hearing in person. (2) However, the court may refuse to admit all or any part of the audiovisual recording. (3) The witness must not be in the courtroom, or visible to anyone in the courtroom by audiovisual link, while the audiovisual recording is played at the hearing. (4) This section is subject to section 56.

53 Police interview audiovisual recording—notice (1) This section applies if the prosecutor in a relevant proceeding intends to tender an audiovisual recording as evidence. (2) The prosecutor must give to the accused person or the person’s lawyer— (a) written notice that the prosecutor intends to tender the audiovisual recording; and (b) a copy of a transcript of the recording. (3) The notice must state the following: (a) each audiovisual recording the prosecutor intends to tender;

(b) that the accused person and the person’s lawyer are entitled to see and listen to each recording at a police station or somewhere else decided by the chief police officer; (c) the person responsible (the responsible person) for arranging access to each recording. (4) For subsection (3) (c), the notice must state the responsible person by— (a) naming the person; or (b) stating the occupant of a position prescribed by regulation.

54 Police interview audiovisual recording—notice for access (1) The accused person, or the person’s lawyer, must give written notice to the responsible person to have access to an audiovisual recording. (2) The notice must state the following: (a) the name of the accused person, and the person’s lawyer; (b) each audiovisual recording for which access is required.

55 Police interview audiovisual recording—access to accused person (1) This section applies if an accused person, or the person’s lawyer, gives notice under section 54 requesting access to an audiovisual (2) The responsible person must give the person who gave notice access to see and listen to the audiovisual recording as soon as practicable after receiving the notice under section 54. (3) The person who gave notice may have access to an audiovisual recording more than once. (4) The accused person, and the person’s lawyer, must not be given, or take a copy of, an audiovisual recording.

Division 4.3.3 Special requirements—audiovisual recording of police interview

56 Police interview audiovisual recording—admissibility (1) An audiovisual recording is admissible in a relevant proceeding only if— (a) notice is given under section 53; and (b) a copy of a transcript of the recording is given to the accused person, or the person’s lawyer, a reasonable time before the start of the hearing of the proceeding; and (c) the accused person, and the person’s lawyer, are given a reasonable opportunity to see and listen to the recording. (2) However, if the prosecutor fails to give notice under section 53 the audiovisual recording is admissible if— (a) a copy of a transcript of the recording is given to the accused person, or the person’s lawyer, a reasonable time before the start of the hearing of the relevant proceeding; and (b) the accused person, and the person’s lawyer, are given a reasonable opportunity to see and listen to the recording; and (c) the court considers it is in the interests of justice to admit the (3) This section does not prevent the parties consenting to the admission in evidence of an audiovisual recording.

57 Police interview audiovisual recording—jury trial (a) a relevant proceeding is a trial by jury; and (b) an audiovisual recording is admitted in evidence in the

(a) admission of the audiovisual recording is a usual practice; and is given in that way. (3) If the court considers that a transcript of the audiovisual recording would be likely to help the jury’s understanding of the evidence, the court may order that the transcript be made available to the jury.

58 Transcript of police interview audiovisual recording— access to court If an audiovisual recording is admitted in evidence in a relevant proceeding, the court may order that a transcript of the recording be made available to the court.

59 Police interview audiovisual recording—offences (1) A person commits an offence if the person, without authority— (a) possesses an audiovisual recording; or (b) supplies, or offers to supply, an audiovisual recording to another person; or (c) plays, copies or erases, or allows someone else to play, copy or erase, an audiovisual recording. Maximum penalty: 100 penalty units, imprisonment for 1 year or (2) For this section, a person has authority in relation to an audiovisual recording only if the person possesses the recording, or does something with the recording, in connection with— (a) the investigation of, or a proceeding for, an offence in relation to which the recording is prepared; or

(b) a re-hearing, re-trial or appeal in relation to the proceeding; or (c) another proceeding in which the recording is or may be admitted in evidence under section 56.

60 Witness may give evidence at pre-trial hearing (1) A witness in a relevant proceeding may give evidence at a pre-trial hearing. (2) The evidence must be given by audiovisual link from an external place that is linked to the courtroom by an audiovisual link. (3) However, the witness’s evidence in chief given at a pre-trial hearing may include an audiovisual recording under division 4.3.3 (Special requirements—audiovisual recording of police interview). (4) If an audiovisual recording under division 4.3.3 is played at the pre-trial hearing, the witness must not be visible to anyone in the courtroom by audiovisual link while the audiovisual recording is played. (5) While the witness is at the external place to give evidence, the place is taken for all purposes (other than subsection (4)) to be part of the courtroom. (6) While the witness is at the external place to give evidence— (a) the accused person must not be at the place; and (b) the witness must not be able to see or hear the accused person; and (c) the accused person must be able to see and hear the witness give (d) the accused person must be able to communicate with the person’s lawyer.

Giving evidence at pre-trial hearing Division 4.3.4

61 Who may be present at pre-trial hearing (1) Only the following people may be present in the courtroom at the pre-trial hearing: (a) the presiding judicial officer; (b) the prosecutor; (c) the accused person; (d) the accused person’s lawyer; (e) anyone else the court considers appropriate. (2) While the witness is at an external place to give evidence, only the following people may be present at the place: (a) a support person under section 49 (1) or section 101; (b) anyone else the court considers appropriate. (3) Each person who is present at the external place where the witness is to give evidence must be recorded on the audiovisual recording recorded under section 62. (4) The judicial officer who presides at the pre-trial hearing need not be the judicial officer who presides at the trial at which the audiovisual recording of the witness’s evidence is tendered.

62 Evidence of witness at pre-trial hearing to be evidence at (1) The evidence of a witness in a relevant proceeding (including cross-examination and re-examination) given under this division must be recorded as an audiovisual recording. (2) The evidence in chief of the witness may include an audiovisual recording under section 51.

(3) The audiovisual recording of the witness’s evidence must— (a) be played at the hearing of the relevant proceeding for which the pre-trial hearing was held; and (b) be admitted in evidence as the witness’s evidence at the hearing as if the witness gave the evidence at the hearing in person. (4) The witness must not be in the courtroom while the audiovisual recording is played at the hearing.

63 Witness may be required to attend hearing (1) This section applies if an audiovisual recording of a witness’s evidence given at a pre-trial hearing is admitted in evidence at the hearing of a relevant proceeding. (2) The accused person may apply to the court for an order that the witness attend the hearing of the relevant proceeding to give further (3) The court must not make the order unless satisfied that— (a) if the witness had given evidence in person at the hearing of the relevant proceeding—the witness could be recalled; and (b) it is in the interests of justice to make the order. (4) If the courtroom where the relevant proceeding is heard and an external place are linked by an audiovisual link, a witness recalled to give evidence under this section must give evidence by audiovisual link under division 4.3.5, unless the court otherwise orders. (5) The court may make an order under subsection (4) only if satisfied (a) the witness prefers to give evidence in the courtroom; or (i) the relevant proceeding may be unreasonably delayed; or

Giving evidence at pre-trial hearing Division 4.3.4 (6) While the witness is at the external place to give evidence, the place is taken for all purposes (other than section 62 (4)) to be part of the courtroom in which the hearing is held.

64 Evidence of witness at pre-trial hearing—jury trial (a) a relevant proceeding is a trial by jury; and (b) an audiovisual recording of a witness’s evidence given at a pre-trial hearing is admitted in evidence at the hearing of the (a) the witness gave the evidence by audiovisual link at a pre-trial hearing; and (b) admission of the audiovisual recording is a usual practice; and (c) the jury must not draw any inference against the accused person, was given in that way.

65 Recording of witness’s evidence at pre-trial hearing admissible in related hearing (1) This section applies if an audiovisual recording of a witness’s evidence given at a pre-trial hearing is admitted in evidence at the hearing of a relevant proceeding. (2) The recording is admissible as the witness’s evidence in a related proceeding unless the court in the related proceeding otherwise orders.

(3) However, the court in the related proceeding may— (a) refuse to admit all or any part of the audiovisual recording in (b) if the court refuses to admit part of the recording in evidence— order that the part that is not admitted be deleted from the (4) A party in the related proceeding may apply to the court for an order that the witness attend the hearing to give further evidence. (5) The court must not make the order unless satisfied that— (a) the applicant has become aware of something that the applicant did not know or could not reasonably have known when the audiovisual recording was recorded; and (b) if the witness had given evidence in person at the hearing—the witness could be recalled; and (c) it is in the interests of justice to make the order. (6) In this section: related proceeding, in relation to the relevant proceeding in which the audiovisual recording was admitted in evidence, means— (a) a re-hearing or re-trial of, or appeal from, the hearing of the proceeding; or (b) another proceeding in the same court as the proceeding for the (c) a proceeding for another offence arising from the same, or the same set of, circumstances; or (d) a civil proceeding arising from the offence.

66 Audiovisual recording of child’s evidence—admissibility (a) a child has given evidence under this division; and (b) the evidence is recorded as an audiovisual recording; and (c) the child turns 18 years old before the audiovisual recording is admitted in evidence. (2) The admissibility of the audiovisual recording as evidence is not affected only because the child turns 18 years old.

67 Meaning of give evidence—div 4.3.5 (1) In this division: give evidence, in a relevant proceeding by audiovisual link, means to give evidence in the proceeding by audiovisual link from an external place which is linked to the courtroom by an audiovisual link. (2) For this division, it does not matter whether evidence is to be, or is being, given on oath or otherwise.

68 Giving evidence by audiovisual link (a) a witness is to give evidence in a relevant proceeding; and (b) the proceeding is to be heard in a courtroom; and (c) the courtroom and the external place are linked by an (2) The witness’s evidence must be given by audiovisual link unless the court otherwise orders.

(3) The court may make an order under subsection (2) only if satisfied (a) the witness prefers to give evidence in the courtroom; or (i) the relevant proceeding may be unreasonably delayed; or (4) While the witness is at the external place to give evidence, the place is taken for all purposes (other than section 52 (3)) to be part of the courtroom. (5) While the witness is at the external place to give evidence— (a) the accused person must not be at the place; and (b) the witness must not be able to see or hear the accused person; and (c) the accused person must be able to see and hear the witness give (d) the accused person must be able to communicate with the person’s lawyer.

69 Recording evidence given by audiovisual link or in courtroom (1) This section applies if a witness gives evidence in a relevant proceeding under section 68— (a) by audiovisual link; or (b) in the courtroom under an order made by the court under section 68 (2). (2) The evidence given by the witness must be recorded as an audiovisual

(3) However, unless the court otherwise orders, evidence given in the courtroom may be recorded only if the witness consents. (4) In deciding whether to make an order under subsection (3), the court must consider the wishes of the witness. (5) A recording of evidence given by a witness in a relevant proceeding under section 68 (whether by audiovisual link or in the courtroom) is admissible as the witness’s evidence in a related proceeding unless the court in the related proceeding otherwise orders. (6) However, the court in the related proceeding may— (a) refuse to admit any part of the recording in evidence; and (b) if the court refuses to admit part of the recording in evidence— order that the part that is not admitted be deleted from the (7) A party to a related proceeding may apply to the court for an order that the witness attend the hearing to give further evidence. (8) The court must not make the order unless satisfied that— (a) the applicant has become aware of something that the applicant did not know or could not reasonably have known when the recording was made; and (b) if the witness had given evidence in person at the hearing—the witness could be recalled; and (c) it is in the interests of justice to make the order. (9) In this section: related proceeding, in relation to the relevant proceeding in which the evidence given was recorded, means— (a) a re-hearing or re-trial of, or appeal from, the hearing of the proceeding; or

(b) another proceeding in the same court as the proceeding for the (c) a proceeding for another offence arising from the same, or the same set of, circumstances; or (d) a civil proceeding arising from the offence.

70 Consequential orders—div 4.3.5 (1) This section applies if a witness is to give evidence in a relevant proceeding by audiovisual link. (2) The court may make any order it considers appropriate–– (a) to ensure that the relevant proceeding is conducted fairly; or (b) to allow the witness to identify a person or thing; or (c) to allow the witness to take part in a view or to watch a demonstration or experiment; or (d) to allow part of the proceeding to be heard at an external place. (3) The court may make any other order it considers appropriate, including, for example, an order stating–– (a) who may be with the witness at the external place; or (b) who must not be with the witness at the external place; or (c) who, in the courtroom, is to be able, or must not be able, to be heard, or seen and heard, by the witness and people in the external place with the witness; or (d) who, in the courtroom, is to be able to see and hear the witness and anyone else in the external place with the witness; or (e) how the audiovisual link is to operate.

(4) The court may order that a person be excluded from the external place while the witness is giving evidence. (5) The court may direct that an order under this section apply only to a particular part of the relevant proceeding.

71 Making of orders—div 4.3.5 (1) The court may make an order under this division in a relevant proceeding on its own initiative or on the application of— (a) a party to the proceeding; or (b) a witness. (2) For the purpose of making an order under this division, the court is not bound by the rules of evidence and may inform itself as it considers appropriate.

72 Jury warning about inferences from witness giving evidence by audiovisual link (a) a witness gives evidence in a relevant proceeding by audiovisual link; and (b) the proceeding is before a jury. (2) The judge must warn the jury to the effect that the jury should not draw any inference against an accused person in the relevant proceeding from the fact that the evidence of the witness is given by

Part 4.4 Special requirements—sexual offence and family violence offence proceedings

73 Certain evidence to be given in closed court (1) This section applies if a witness— (a) gives evidence at a pre-trial hearing in a sexual offence proceeding under section 60; or (b) is eligible to give evidence at a pre-trial hearing in a sexual offence proceeding under section 60 but does not give the evidence at the pre-trial hearing. (2) On application, the court may order that the court be closed to the public while the witness gives the evidence, or while the witness’s recorded evidence is played, in the proceeding. Note The accused is entitled to a fair and public hearing, but the court may (3) In deciding whether to make an order under subsection (2), the court must— (a) consider whether it is in the interests of justice that the witness give evidence in open court; but (b) give paramount consideration to whether the witness wants to give evidence in open court. (4) If the court makes an order under subsection (2), only the following people may be present in the courtroom when the witness gives the evidence, or when the witness’s recorded evidence is played, in the proceeding: (a) the presiding judicial officer;

Sexual offence proceedings—general Division 4.4.1 (b) the prosecutor; (c) the accused person; (d) the accused person’s lawyer; (e) for a proceeding before a jury—the jury members; (f) anyone else the court considers appropriate. (5) An order under subsection (2) does not stop the following people from being present in the courtroom while the witness gives the evidence, or while the witness’s recorded evidence is played: (a) a support person under section 49 (1) or section 101 (2); (b) if the witness agrees—a person who is preparing a news report of the proceeding and who is authorised to attend the court for that purpose by the person’s employer. (6) If the witness is at an external place to give the evidence, only the following people may be present at the place: (a) a support person under section 49 (1) or section 101 (2); (b) anyone else the court considers appropriate.

74 Prohibition of publication of complainant’s identity (1) A person must not publish, in relation to a sexual offence proceeding— (a) the complainant’s name; or (b) protected identity information about the complainant; or (c) a reference or allusion that discloses the complainant’s identity; or

(d) a reference or allusion from which the complainant’s identity might reasonably be worked out. (2) It is a defence to a prosecution for an offence against this section if the person establishes that the complainant consented to the publication before the publication happened. (3) An offence against this section is a strict liability offence. protected identity information means information about, or allowing someone to find out, the private, business or official address, email address or telephone number of a person.

74A Evidence of family violence may be relevant evidence (1) In a sexual offence proceeding, evidence of family violence may be relevant evidence in the proceeding if it provides context for a fact in issue in the proceeding. Note For when relevant evidence is admissible in a proceeding, see the Evidence Act 2011, s 56. (2) In considering whether evidence of family violence is relevant evidence, the court must take into account that— (a) a single act may amount to family violence; and (b) a number of acts that form part of a pattern of behaviour may amount to family violence, even though some or all of the acts, when viewed in isolation, may appear to be minor or trivial.

Sexual offence proceedings—general Division 4.4.1 evidence of family violence includes evidence of— (a) in relation to a person—any of the following: (i) the history of the relationship between the person and a family member, including family violence by— (A) the family member towards the person; or (B) the person towards the family member; or (C) the family member or the person in relation to any other family member; (ii) the cumulative effect, including the psychological effect, of the family violence on the person or a family member; (iii) any social, cultural or economic factors that impact on the person or a family member who has been affected by the family violence; and (b) in relation to family violence generally—any of the following: (i) the general nature and dynamics of relationships affected by family violence, including the possible consequences of separation from the abuser; (ii) the cumulative effect, including the psychological effect of family violence on people who are, or have been, in a relationship affected by family violence; (iii) the social, cultural or economic factors that impact on people who are, or have been, in a relationship affected by family violence. family member—see the Family Violence Act 2016, section 9. family violence—see the Family Violence Act 2016, section 8.

Division 4.4.2 Sexual offence proceedings—evidence of complainant’s sexual reputation and activities Division 4.4.2 Sexual offence proceedings— evidence of complainant’s sexual reputation and activities

75 Immunity of sexual reputation Evidence of the complainant’s sexual reputation is not admissible in a sexual offence proceeding.

76 General immunity of evidence of complainant’s sexual activities (1) Evidence of the sexual activities of the complainant is not admissible in a sexual offence proceeding without leave of the court dealing with the proceeding. (2) Subsection (1) does not apply to evidence of the specific sexual activities of the complainant with an accused person in the sexual offence proceeding.

77 Application for leave under s 76 Application for leave under section 76 in a sexual offence proceeding must be made–– (a) in writing; and (b) if the proceeding is before a jury––in the absence of the jury; and (c) in the absence of the complainant, if an accused person in the proceeding requests.

78 Decision to give leave under s 76 (1) The court must not give leave under section 76 unless satisfied that the evidence— (a) has substantial relevance to the facts in issue; or (b) is a proper matter for cross-examination about credit. (2) Evidence (sexual activity evidence) that relates to, or tends to establish, the fact that the complainant was accustomed to engage in sexual activities is not to be regarded as having a substantial relevance to the facts in issue because of any inference it may raise about general disposition. (3) Sexual activity evidence is not to be regarded as being a proper matter for cross-examination about credit unless the evidence, if accepted, would be likely to substantially impair confidence in the reliability of the complainant’s evidence. (4) If the court gives leave under section 76, it must give written reasons for its decision. proper matter for cross-examination about credit—evidence is a proper matter for cross-examination about credit if the credibility rule under the Evidence Act 2011, section 102 does not apply to the evidence because of that Act, section 103 (Exception— cross-examination as to credibility). Division 4.4.3 Sexual and family violence offence proceedings—protection of counselling communications

79 Definitions—div 4.4.3 In this division: civil proceeding does not include a criminal proceeding.

counselled person—see section 79A (1). counselling means counselling, therapy or treatment for an emotional or psychological condition, whether or not the counselling, therapy or treatment is provided for remuneration. counsellor means a person who— (a) has undertaken training or study, or has experience, relevant to the process of counselling people who have suffered harm; or (b) is supervised by someone to whom paragraph (a) applies. criminal proceeding means— (a) a proceeding for any offence; or (b) a sentencing proceeding for a person convicted or found guilty of any offence; or (c) an appeal or other review (whether by prerogative order or otherwise) arising out of a proceeding mentioned in paragraph (a) or (b); or (d) an interlocutory proceeding in, or a proceeding ancillary to, a proceeding mentioned in paragraphs (a) to (c); but does not include a preliminary criminal proceeding. document recording a protected confidence includes–– (a) a copy, reproduction, republication, duplicate or summary of, or extract from, a document recording a protected confidence; and (b) the part of a document recording a protected confidence; and (c) the part of a document containing a report, observation, opinion, advice, recommendation or anything else in relation to a protected confidence that is— (i) made or given by the person who made the protected confidence; or

(ii) made or given by a third party mentioned in section 79A (4) in whose presence the protected confidence is made; and (d) a copy, reproduction, republication, duplicate or summary of, or extract from, the part of a document mentioned in paragraph (b) or (c). harm includes–– (a) actual physical harm; and (b) stress or shock; and (c) prejudice to privacy; and (d) emotional or psychological harm, including, for example, shame, humiliation and fear; and (e) damage to reputation; and (f) financial loss. preliminary criminal proceeding means— (a) a committal proceeding for any offence; or (b) a proceeding in relation to bail for a person charged with any (c) an appeal or other review (whether by prerogative order or otherwise) arising out of a proceeding mentioned in paragraph (a) or (b); or (d) an interlocutory proceeding in, or a proceeding ancillary to, a proceeding mentioned in paragraphs (a) to (c). proceeding means a civil or criminal proceeding. protected confidence––see section 79A (1).

protected confidence evidence means–– (a) oral or written evidence that would disclose a protected confidence; or (b) a document recording a protected confidence; or (c) oral or written evidence that would disclose the contents of a document recording a protected confidence.

79A Meaning of protected confidence—div 4.4.3 (1) For this division, a protected confidence is a counselling communication made by, to or about a person against whom a sexual offence or family violence offence was, or is alleged to have been, committed (the counselled person). (2) A counselling communication is a protected confidence even if–– (a) it is made before the happening, or alleged happening, of the acts constituting the sexual offence or family violence offence; or (b) it is not made in relation to–– (i) the sexual offence or any sexual offence; or (ii) a condition arising from the sexual offence or any sexual (iii) the family violence offence or any family violence offence; or (iv) a condition arising from the family violence offence or any family violence offence. (3) For this section, a counselling communication is a communication made in circumstances that give rise to a reasonable expectation of confidentiality or a duty of confidentiality— (a) by the counselled person to a counsellor for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or

(b) to or about the counselled person by the counsellor for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or (c) by the counselled person to a third party mentioned in counsellor; or (d) to the counselled person by a third party mentioned in counsellor; or (e) about the counselled person by a third party mentioned in counsellor to— (i) the counselled person; or (ii) the counsellor; or (iii) another third party to whom subsection (4) applies; or (f) about the counselled person by a counsellor to someone else who has also been a counsellor for the counselled person; or (g) about the counselled person to a counsellor by someone else who has also been a counsellor for the counselled person.

(4) For this section, in deciding whether a communication was made in circumstances that gave rise to a reasonable expectation of confidentiality, it does not matter that the communication was made in the presence of a third party, if the third party was present to assist or encourage communication between the counselled person and counsellor or otherwise assist the counselling process. Examples—third parties 1 a parent, partner, carer, spiritual adviser or other supportive person 2 a person present at the request of the counsellor to take notes of the counselling session family violence offence includes alleged family violence offence. sexual offence includes alleged sexual offence.

79B When does div 4.4.3 apply? This division applies to a protected confidence made before or after the commencement of this division.

79C Immunity for protected confidences in preliminary (1) A protected confidence must not be disclosed in, or for the purposes of, a preliminary criminal proceeding. (2) Without limiting subsection (1)–– (a) a person cannot be required (whether by subpoena, application, notice or any other procedure), in or in relation to a preliminary criminal proceeding, to produce a document recording a protected confidence; and

(b) protected confidence evidence is not admissible in the preliminary criminal proceeding. Example––par (a) A person could not be required to disclose a protected confidence in response to a request for production of documents in a preliminary criminal proceeding.

79D General immunity for protected confidences (1) This section applies in relation to a proceeding. (2) A protected confidence must not be disclosed in, or for the purposes of, the proceeding unless the court dealing with the proceeding gives leave for the disclosure. (3) Without limiting subsection (2)–– (a) a person cannot be required (whether by subpoena, application, notice or any other procedure), in or in relation to the proceeding, to produce a document recording a protected confidence, unless the court gives leave; and (b) protected confidence evidence is not admissible in the proceeding, unless the court gives leave. Example––par (a) A person could not be required to disclose a protected confidence in response to a request for production of documents in a proceeding unless the court gives leave.

79E Application for leave to disclose protected confidence (1) An application for leave must— (a) be in writing; and (b) set out the leave sought; and (c) set out the applicant’s arguments in support of the application (including the matters mentioned in section 79F (2)).

(2) The application must also–– (a) set out briefly the nature of the protected confidence evidence (if known); and (b) set out, or be accompanied by a copy of, any relevant documents. (3) The applicant must give written notice of the application to— (a) for a civil proceeding—the counselled person who is the subject of the protected confidence; or (b) for a criminal proceeding—the prosecutor. (4) The notice must— (a) state the known protected confidence evidence that is the subject of the application; and (b) state that the counselled person may, under section 79IA, appear in the proceeding; and (c) state the day when the application is to be heard. (5) If the prosecutor in a criminal proceeding is given a notice under subsection (3) (b), the prosecutor must give it to the counselled person who is the subject of the protected confidence. (6) However, a requirement under this section to give notice to a counselled person does not apply if the court is satisfied that— (a) the applicant in a civil proceeding, or the prosecutor in a criminal proceeding, has taken all reasonable steps to find the counselled person, but has not found the counselled person; or (b) the counselled person has consented in writing to not be notified about the application; or (c) the counselled person has already been given a notice under this section about another application for leave in the same proceeding about the same protected confidence.

79F Threshold test––legitimate forensic purpose (1) The court must refuse the leave sought under section 79E if not satisfied that the applicant has established a legitimate forensic purpose for seeking the leave. (2) To establish a legitimate forensic purpose, the applicant must— (a) identify a legitimate forensic purpose for seeking the leave; and (b) satisfy the court that there is an arguable case that the evidence in relation to which the leave is sought would materially assist the applicant’s case in the proceeding. (3) If the applicant is required to give notice of the application under section 79E, the court must not decide whether or not to refuse the application under this section until at least 14 days after the applicant has given the notice. (4) However, the court may make a decision in a shorter period after the notice has been given if satisfied it is in the interests of justice. (5) The court must decide whether or not to refuse the application under this section before it conducts a preliminary examination of the protected confidence evidence under section 79G.

79G Preliminary examination of protected confidence evidence (1) If the court is satisfied that the applicant has established a legitimate forensic purpose for seeking the leave, the court must then conduct a preliminary examination of the protected confidence evidence to decide whether leave should be given. (2) For the preliminary examination, the court may–– (a) require anyone who has custody or control of a document recording a protected confidence to produce the document to the court for inspection; or

(b) require the counsellor or, if the counsellor provides counselling on behalf of an entity, the principal or another representative of the entity–– (i) to give the court written answers to any questions; or (ii) to attend the court for oral examination. (3) The court may also permit a written statement be made by the counselled person about the harm the counselled person is likely to suffer if leave is given. (4) The court must not order a person to attend for oral examination under subsection (2) (b) (ii) unless the oral examination of the person is necessary for the effective conduct of the preliminary examination. (5) Only a person mentioned in subsection (2) may be ordered to answer questions or be examined under this section. (6) The preliminary examination must be conducted–– (a) in the absence of the public and the jury (if any); and (b) in the absence of the parties to the proceeding and their lawyers, except to the extent otherwise decided by the court. (7) Evidence taken at the preliminary examination— (a) if the evidence is a statement taken under subsection (3)—must not be disclosed to the parties or their lawyers (other than the counselled person or their lawyer); or (b) in any other case—must not be disclosed to the parties or their lawyers, except to the extent otherwise decided by the court. (8) A record of the preliminary examination must be made, but must not be made available for public access.

79H Giving of leave to disclose protected confidence (1) After conducting the preliminary examination of the protected confidence evidence, the court may give leave for the disclosure of the protected confidence only if satisfied that— (a) for a civil proceeding—the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence; or (b) for a criminal proceeding—the public interest in ensuring an accused person in the proceeding is given a fair trial outweighs the public interest in preserving the confidentiality of the protected confidence. (2) To remove any doubt, if the court is satisfied under subsection (1) about part of a document only, it may give leave in relation to that part and refuse leave for the rest of the document. (3) In making a decision under subsection (1), the court must have regard to— (a) for a criminal proceeding—the extent to which disclosure of the protected confidence is necessary for an accused person to make a full defence; and (b) the public interest in ensuring that victims of sexual offences receive effective counselling or other treatment; and (c) the extent to which disclosure of protected confidences may dissuade victims of sexual offences from seeking counselling or other treatment or diminish the value of counselling or other treatment; and (d) whether the evidence will have a substantial probative value to a fact in issue and whether other evidence of similar or greater probative value is available about the matters to which the evidence relates; and

(e) the likelihood that disclosure of the protected confidence will affect the outcome of the case; and (f) whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias; and (g) whether the person to or by whom the protected confidence was made objects to the disclosure of the protected confidence; and (h) the nature and extent of the reasonable expectation of confidentiality for the protected confidence and the potential prejudice to the privacy of anyone, including to the extent to which any interest in confidentiality or privacy has been lessened by the passage of time or the happening of any event since the protected confidence was made. (4) Subsection (3) does not limit the matters to which the court may have regard. (5) Leave under this section may be given subject to conditions. (6) If the court refuses to give leave, and an appeal is made against the refusal, or a ground of an appeal is the refusal, the appellate court may examine the evidence taken at the preliminary examination under section 79G, and may make the orders about the disclosure of the evidence (other than a statement taken under section 79G (3)) it considers appropriate.

79I Ancillary orders for protection of person who made protected confidence (1) The court may make any order it considers appropriate to limit possible harm, or the extent of possible harm, to a person who made a protected confidence by the disclosure of protected confidence (2) Without limiting subsection (1), the court may–– (a) order that the court be closed to the public while all or part of the protected confidence evidence is presented; or

(b) for a document recording a protected confidence––order that a document be edited as directed by the court or that a copy of a document (or part of a document) be disclosed instead of the original; or (c) make orders in relation to the suppression or publication of all or any part of the protected confidence evidence; or (d) for a document recording a protected confidence––make orders about the production or inspection of the document; or (e) make orders in relation to the disclosure of— (i) protected identity information about the person who made the protected confidence; or (ii) information that discloses the identity of the person who made the protected confidence; or (iii) information from which the identity of the person who made the protected confidence might reasonably be inferred. (3) This section is in addition to section 74 (Prohibition of publication of complainant’s identity). protected identity information means information about, or allowing someone to find out, the private, business or official address, email address or telephone number of a person. 79IA Counselled person may appear in proceeding if protected confidence sought to be disclosed A counselled person may appear in any proceeding in relation to— (a) the disclosure of a protected confidence made by, to or about the counselled person; or

(b) the production of a document recording a protected confidence made by, to or about the counselled person; or (c) the admission of protected confidence evidence for a protected confidence made by, to or about the counselled person. 79IB Court must be satisfied counselled person is informed of rights under div 4.4.3 If it appears to the court that a counselled person may have grounds to make an objection or seek an order in relation to something mentioned in section 79IA (a) to (c), the court must satisfy itself that the counselled person— (a) is aware of the effect of this division; and (b) has been given a reasonable opportunity to seek legal advice about whether to make an objection or seek an order.

79J No waiver of protected confidence immunity This division applies whether or not a person who has made a protected confidence consents or does not object to the disclosure of the protected confidence.

79K No protected confidence immunity for medical information This division does not apply in relation to–– (a) information obtained by a doctor because of a physical examination of a person against whom a sexual offence or family violence offence was, or is alleged to have been, committed; or (b) any communication made in the course, or because, of the examination.

79L No protected confidence immunity for communications for criminal investigations and proceedings This division does not apply to a communication made for the purpose of— (a) an investigation by a law enforcement entity into the commission or alleged commission of a sexual offence or family violence offence; or (b) a preliminary criminal proceeding or criminal proceeding arising from the commission or alleged commission of a sexual offence or family violence offence.

79M No protected confidence immunity in case of misconduct (1) This division does not apply in relation to a communication made, or a document prepared, in the furtherance of the commission of an offence, a fraud or an act that makes a person liable to a civil penalty. (2) A court may find that a communication was made, or a document was prepared, in the furtherance of the commission of an offence, a fraud or an act if there are reasonable grounds for finding that–– (a) the offence, fraud or act was committed; and (b) the communication was made, or document prepared, in the furtherance of the offence, fraud or act.

Division 4.4.4 Sexual offence proceedings—directions and warnings to juries Division 4.4.4 Sexual offence proceedings— directions and warnings to juries Note The Supreme Court Act 1933, s 68C (3) provides that in a criminal proceeding tried by a judge alone, if a territory law requires a warning or direction to be given, or a comment to be made, to a jury in the proceeding, the judge must take the warning, direction or comment into account in considering his or her verdict.

80 Comments on complainants’ evidence If evidence is given by a complainant in a sexual offence proceeding, the judge must not give the jury any warning or suggestion to the effect that the law regards complainants to be an unreliable class of witnesses.

80A Comments on children’s evidence If evidence is given by a child in a sexual offence proceeding, the judge must not give the jury any warning or suggestion to the effect that the law regards children to be an unreliable class of witnesses.

80B Comments about lack of, or delays in making, complaint (1) This section applies if, in a sexual offence proceeding, evidence is given, or a question is asked of a witness, that tends to suggest that— (a) the complainant made no complaint about the alleged offence; or (b) there was a delay in making a complaint. (2) The judge must–– (a) give the jury a warning to the effect that the absence of, or the delay in making, the complaint does not necessarily indicate that the allegation that the offence was committed is false; and (b) tell the jury that there may be good reasons why a victim of a sexual offence may not make, or may hesitate in making, a complaint about the offence.

Sexual offence proceedings—directions and warnings to juries Division 4.4.4

80C Directions about implied consent In a sexual offence proceeding, the judge must, in a relevant case, direct the jury that a person is not to be regarded as having consented to a sexual act just because–– (a) the person did not say or do anything to indicate that the person did not consent; or (b) the person did not protest or physically resist; or (c) the person did not sustain a physical injury; or (d) on that or an earlier occasion, the person had consented to engage in a sexual act (whether or not of the same kind) with the accused person or someone else.

Part 4.5 Special requirements—family violence offence proceedings

81 Meaning of recorded statement—pt 4.5 recorded statement means— (a) an audiovisual recording— (i) of a complainant answering questions from a police officer in relation to the investigation of a family violence offence; and (ii) made by a police officer; or (b) an audio recording that complies with paragraph (a)— (i) if the complainant does not consent to an audiovisual recording; or (ii) in exceptional circumstances. Example—exceptional circumstances technical difficulties with the visual aspect of the recording identified following the making of the recording

Division 4.5.2 Family violence offence proceedings—recorded statement of police interview

81A Recorded statement—requirements (1) A police officer must, before making a recorded statement, tell the complainant that— (a) the recorded statement may be used in evidence at a hearing; and (b) if the recorded statement is used in evidence at a hearing, the complainant may be called to give evidence under cross-examination in person at the hearing; and (c) the complainant does not have to consent to the recording. (2) A recorded statement must be made— (a) as soon as practicable after the events mentioned in the statement happened; and (b) in the form of questions and answers. Note If the recorded statement is to be admitted as evidence in a proceeding, the rules of evidence apply to the content of the statement. (3) A recorded statement of a complainant must include the following: (a) the name of each person present during any part of the recording; (b) a statement by the complainant— (i) of the complainant’s name, age and whether the complainant lives in the ACT; and (ii) about the truth of the representations made by the complainant in the recorded statement; (c) any other matter prescribed by regulation.

(4) As far as is practicable, a recorded statement must not contain an image of— (a) a child; or (b) a person who is intellectually impaired. (5) If any part of a recorded statement is in a language other than English— (a) the recorded statement must contain an English translation of the part; or (b) a separate written English translation of the part must accompany the recorded statement. (6) A recorded statement must not be edited or changed unless— (a) both parties consent to the edits or changes; or (b) the court hearing the proceeding in which the recorded statement is tendered otherwise orders. Example—court ordering change editing the recorded statement to omit inadmissible material (7) In this section: intellectually impaired—see section 42. police officer includes a person who is a member of the police force of a State or another Territory if— (a) provisions of the law of that State or Territory correspond (or substantially correspond) to this part; and (b) the person is trained in the taking of evidence under those provisions.

81B Recorded statement—may be admitted as evidence (1) A recorded statement may— (a) be played at the hearing of a family violence offence proceeding for the offence to which it relates; and (b) if the recorded statement is played at the hearing—be admitted as all or part of the complainant’s evidence in chief in the proceeding as if the complainant gave the evidence at the hearing in person. (2) However, the court may refuse to admit all or any part of the recorded statement if the court considers it is in the interests of justice to do so. (3) The complainant may choose not to be present in the courtroom while the court is viewing or listening to the recorded statement. (4) If the complainant is giving evidence by audiovisual link from an external place under division 4.3.5, the complainant must not be visible or audible to anyone in the courtroom by closed-circuit television or by means of similar technology while the court is viewing or listening to the recorded statement. (5) To remove any doubt, if a recorded statement is admitted as part of a complainant’s evidence in chief in a proceeding, the complainant may give further evidence in chief. (6) This section is subject to section 81G (Recorded statement— admissibility). (7) In this section:

81C Recorded statement—hearsay rule and opinion rule (1) The hearsay rule and the opinion rule do not prevent the admission or use of evidence of a representation in the form of a recorded statement only because it is in that form. Note The hearsay rule and opinion rule will apply to the content of the recorded statement to be admitted as evidence. hearsay rule—see the Evidence Act 2011, section 59 (1). opinion rule—see the Evidence Act 2011, section 76.

81D Validity of proceeding not affected (1) The failure of a police officer to record a representation in the form of a recorded statement in accordance with the requirements of this division or any regulation does not affect the validity of a proceeding in which evidence of the representation is given. (2) The failure of a complainant to give evidence in accordance with this part does not affect the validity of a proceeding or any decision made in connection with the proceeding.

81E Recorded statement—represented accused person to be given copy (a) a recorded statement has been made in relation to a family violence offence proceeding; and (b) the accused person is represented by a lawyer in the proceeding. (2) The lawyer representing the accused person must be given a copy of the recorded statement as soon as practicable after the proceeding is commenced.

(3) The lawyer representing the accused person must return the copy of the recorded statement by giving it to the prosecutor not later than 16 weeks after the proceeding is finalised. (4) The accused person must not be given, or take a copy of, the recorded statement.

81F Recorded statement—unrepresented accused person to be given access (a) a recorded statement has been made in relation to a family violence offence that is the subject of a proceeding; and (b) the accused person is not represented by a lawyer in the (2) The accused person must be given an audio copy of the recorded statement as soon as practicable after the proceeding is commenced. (3) Also, if it is reasonably practicable, the accused person must be given an opportunity to view a recorded statement that is in the form of a video recording at a police station on at least 1 of the following occasions: (a) when the accused person is being questioned in relation to the alleged family violence offence; (b) at the request of the accused person, on a day arranged with the accused person; (c) on another day stated in a written notice given to the accused person before committal proceedings or the trial commences. (4) If compliance with subsection (3) is not reasonably practicable, the accused person must be given the opportunity to view the recorded statement on a day on which proceedings relating to the offence are being held.

81G Recorded statement—admissibility Evidence of a representation of a complainant given in the form of a recorded statement is not to be admitted if section 81E or section 81F have not been complied with, unless the court is satisfied that— (a) the parties consent to the recorded statement being admitted; or (b) the accused person or the accused person’s lawyer (if any) have been given a reasonable opportunity to listen to or view the recorded statement and it would be in the interests of justice to admit the recorded statement.

81H Recorded statement—accused person to be given audio copy (a) the prosecutor in a family violence offence proceeding intends to tender a recorded statement as evidence; and (b) the court accepts a plea of not guilty from the accused person; and (c) the accused person has not already been given an audio copy of the recorded statement under section 81F. (2) The accused person must be given an audio copy of the recorded statement.

81I Recorded statement—jury trial (a) a family violence offence proceeding is a trial by jury; and (b) a recorded statement is admitted in evidence in the proceeding. (a) admission of a recorded statement is a usual practice; and

is given in that way. (3) If the court considers that a transcript of the recorded statement would be likely to help the jury’s understanding of the evidence, the court may order that the transcript be made available to the jury.

81J Recorded statement—offence to publish (1) A person commits an offence if the person— (a) publishes a recorded statement; and (b) does not have authority to publish the recorded statement. (2) For this section, a person has authority to publish a recorded statement only if the person publishes the recorded statement in connection with— (a) the investigation of, or a proceeding for, an offence in relation to which the recorded statement is prepared; or (b) a re-hearing, re-trial or appeal in relation to the proceeding; or (c) a proceeding for an application for a protection order under the Family Violence Act 2016 if— (i) the affected person in relation to the application for the protection order is the complainant in relation to the recorded statement; and (ii) the respondent to the application for the protection order is the person against whom the family violence offence, the subject of the recorded statement, is alleged.

Division 4.5.3 Recorded statement of police interview admissible as evidence— application for protection order person includes the complainant in relation to the recorded statement. publish means communicate or disseminate information in a way or to an extent that makes it available to, or likely to come to the notice of, the public or a section of the public or anyone else not lawfully entitled to the information. Division 4.5.3 Recorded statement of police interview admissible as evidence— application for protection order

81K Recorded statement—may be admitted as evidence in application for family violence protection order (1) This section applies if a recorded statement is made in relation to an alleged family violence offence. (2) The recorded statement may be admitted by the Magistrates Court in a proceeding for an application for a protection order under the Family Violence Act 2016 if— (a) the affected person in relation to the application for the protection order is the complainant in relation to the recorded statement; and (b) the respondent to the application for the protection order is the person against whom the family violence offence is alleged.

Certain evidence under court rules not admissible Chapter 5

Chapter 5 Certain evidence under court rules not admissible

82 Evidence not admissible in court—neutral evaluation (1) This section applies if, under rules under the Court Procedures Act 2004 (the rules), the Supreme Court or Magistrates Court has referred a civil proceeding, or part of a civil proceeding, for neutral evaluation. (2) Evidence of anything said, or of any admission made, in a neutral evaluation session under the rules is not admissible in any proceeding before a court or tribunal. (3) A document prepared for, in the course of, or because of, a neutral evaluation session under the rules is not admissible in any proceeding before a court or tribunal. (4) Subsections (2) and (3) do not apply to any evidence or document— (a) for evidence—if the people attending, or identified during, the neutral evaluation session consent to the admission of the evidence; or (b) for a document—if the people attending, or identified during, the neutral evaluation session and all the people identified in the document, consent to the admission of the document; or (c) in a proceeding (including a criminal proceeding) brought in relation to an act or omission in relation to which a disclosure has been made under the rules because an evaluator has reasonable grounds to believe the disclosure is necessary or desirable to prevent or reduce the danger of death or injury to anyone or damage to any property.

Chapter 5 Certain evidence under court rules not admissible neutral evaluation session includes any steps taken in the course of making arrangements for the session or in the course of the follow-up of the session.

83 Evidence not admissible in court—expert report (a) a party to a civil proceeding in the Supreme Court or Magistrates Court (the court) engages an expert witness; and (b) the expert witness prepares a report (an expert report); and (c) the expert report does not contain an acknowledgment by the expert witness who prepared the report that the expert witness has read the code of conduct for expert witnesses prescribed by the rules under the Court Procedures Act 2004 applying to the expert witness and agrees to be bound by it. (2) The expert report is not admissible in evidence in the proceeding, unless the court otherwise orders.

84 Evidence not admissible in court—meeting of experts (1) This section applies if, in a civil proceeding in the Supreme Court or Magistrates Court (the court), the court directs the expert witnesses in the proceeding to meet— (a) to identify the matters on which they agree; and (b) to identify the matters on which they disagree and the reasons why; and (c) to try to resolve any disagreement.

Certain evidence under court rules not admissible Chapter 5 (2) Unless the court otherwise orders, evidence of anything done or said, or an admission made, at the meeting is admissible at a trial of the proceeding only if all the parties to the proceeding that are active parties under the rules under the Court Procedures Act 2004 applying to the proceeding (the rules) agree. (3) However, subsection (2) does not apply to a document produced in accordance with a direction made by the court under the rules that the expert witnesses produce a document for the court’s use, identifying— (a) the matters on which they agree; and (b) the matters on which they disagree; and (c) the reasons for any failure to reach agreement on any matter.

85 Evidence not admissible in court—evidence taken in examination (a) in a civil or criminal proceeding, the Supreme Court or the Magistrates Court (the court) makes an order under the rules under the Court Procedures Act 2004— (i) for the examination of a person on oath at a place in or outside the ACT (including outside Australia) before a person appointed by the court; or (ii) for the issue of a commission for the examination of a person on oath at a place in or outside the ACT (including outside Australia); or (iii) for the issue of a letter of request to a judicial authority of a place outside the ACT (including outside Australia) to take the evidence of a person (or cause it to be taken); and (b) the person’s evidence is taken in an examination held in accordance with the order; and

Chapter 5 Certain evidence under court rules not admissible (c) a party to the proceeding tenders the person’s evidence as evidence in the proceeding. (2) Unless the court otherwise orders, the person’s evidence is not admissible if, at the hearing of the proceeding, the court is satisfied that the person is in the ACT and is able to attend the hearing.

Evidence in criminal proceedings—dangerously ill people Chapter 6

Chapter 6 Evidence in criminal proceedings—dangerously ill people

90 Meaning of dangerously ill person—ch 6 dangerously ill person means a person who is dangerously ill and is not likely to recover from the illness.

91 Application—ch 6 This chapter applies if a court is satisfied that— (a) a dangerously ill person is or may be able to give evidence in a proceeding for an indictable offence or on behalf of a person who has been, or may be, charged with an indictable offence; and (b) because of the illness, the dangerously ill person is or may be unable to give evidence in the proceeding.

92 Recording of evidence of dangerously ill person (1) The court may take the evidence of the dangerously ill person (including cross-examination and re-examination) by audio or audiovisual recording. (2) The recording must include the following: (a) the date when, and the place where, the recording was made; (b) the times when the recording started and ended; (c) the times when any break in recording started and ended, and the reason for the break; (d) the name of each person present during any part of the recording;

Chapter 6 Evidence in criminal proceedings—dangerously ill people (e) for each person present during any part of the recording—the part when the person was present.

93 Notice of evidence of dangerously ill person (1) Before taking the evidence of the dangerously ill person, the court must give a notice that the court proposes to take the evidence and of the time and place where it will be taken— (a) to the person charged or who may be charged; and (b) if the evidence is evidence on behalf of the person charged and it is practicable to do so—to the DPP or a person authorised by the DPP. (2) A person given a notice under subsection (1) (the notified person) may— (a) be present while the evidence is being taken; and (b) cross-examine the person giving the evidence. (3) However, subsection (2) does not apply if this Act or another territory law prohibits the notified person from doing a thing mentioned in the subsection.

94 Admissibility of recording of evidence of dangerously ill person (a) an audio or audiovisual recording of evidence by a dangerously ill person is made; and (b) in the proceeding for the offence to which the evidence in the recording relates, the court is satisfied that— (i) the dangerously ill person is dead, or is, because of illness, unable to attend the proceeding; and

Evidence in criminal proceedings—dangerously ill people Chapter 6 (ii) reasonable notice of the time and place fixed for the taking of the evidence was given in accordance with section 93 (1). (2) The audio or audiovisual recording of the evidence is admissible to the extent that the evidence would have been admissible at the proceeding if given orally.

95 Definitions—ch 6 In this chapter— principal proceeding, for a victim impact statement, means the proceeding for which the statement was made. victim impact statement—see the Crimes (Sentencing) Act 2005, section 47.

96 Victim impact statements—cross-examination in principal proceeding (1) The court must not allow the defence to cross-examine the maker of a victim impact statement about the contents of the statement before a finding of guilt has been made in the principal proceeding, unless the court is satisfied that the statement has substantial probative value to justify allowing the cross-examination. (2) The court must not allow the defence to cross-examine the maker about the contents of the statement after a finding of guilt has been made in the principal proceeding unless— (a) a lawyer representing the offender applies for leave to conduct the cross-examination, or if the offender is not legally represented the offender indicates to the court the nature of the proposed cross-examination; and (b) the court is satisfied that the cross-examination would materially affect the likely sentence to be imposed on an offender; and (c) the court gives the defence leave to cross-examine the maker.

Victim impact statements Chapter 6A defence means— (a) any lawyer representing a defendant or offender; or (b) if the defendant or offender is not legally represented—the defendant or offender.

97 Victim impact statements—use in other proceeding (1) A victim impact statement must not be used in a proceeding other than the principal proceeding unless— (a) a finding of guilt has been made in the principal proceeding; or (b) the court hearing the principal proceeding— (i) is satisfied, on application by a party seeking to use the statement in another proceeding, that the statement has substantial probative value to justify the party’s use of the statement; and (ii) makes an order allowing the statement to be used. (2) An order under subsection (1) (b) (ii) may include any conditions the court considers appropriate having regard to the nature of the alleged offence and the circumstances of the maker of the statement.

Part 7.1 Evidence of witnesses with disabilities or vulnerabilities Chapter 7 Evidence in any proceedings— other matters Part 7.1 Evidence of witnesses with disabilities or vulnerabilities 100 Meaning of witness with a disability—pt 7.1 For this part, a witness with a disability is a person who gives evidence in a proceeding and has a mental or physical disability that affects the person’s ability to give evidence.

101 Child or witness with disability may have support person in court (1) This section applies to any of the following people (a witness) giving evidence in a proceeding: (a) a child; (b) a witness with a disability. (2) The court must, on application by a party that intends to call a witness, order that, while the witness gives evidence, the witness have a person (a support person) in the court who is— (a) for a witness with a vision impairment—close enough to the witness for the court to be satisfied that the witness is aware of the person’s presence; or (b) for any other witness—close to the witness and within the witness’s sight. (3) The court may order that a witness have more than 1 support person if it considers it is in the interests of justice.

Evidence of witnesses with disabilities or vulnerabilities Part 7.1 (4) The support person must not— (a) speak for the witness during the proceeding; or (b) otherwise interfere in the proceeding. (5) Unless the court otherwise orders, the support person must not be, or be likely to be, a witness or party in the proceeding. (6) If the proceeding is a trial by jury, the court must tell the jury that— (a) a witness having a support person in the court while giving evidence is a usual practice; and or give the evidence more or less weight, because the support person is present.

102 Witness with vulnerability may give evidence in closed court (1) This section applies to a person (the witness) giving evidence in a proceeding if the court considers that the person has a vulnerability that affects the person’s ability to give evidence because of— (a) the circumstances of the proceeding; or (b) the person’s circumstances. 1 the person is likely to suffer severe emotional trauma because of the nature of the alleged offence 2 the person is intimidated or distressed because of the person’s relationship to the accused person (2) The court may order that the court be closed to the public while all or part of the witness’s evidence (including evidence under cross-examination) is given. Note The accused is entitled to a fair and public hearing, but the court may

Part 7.1 Evidence of witnesses with disabilities or vulnerabilities (3) In deciding whether to order that the court be closed to the public, the court must consider whether— (a) the witness wants to give evidence in open court; and (b) it is in the interests of justice that the witness give evidence in open court. (4) However, an order under this section does not stop the following people from being in court when the witness gives evidence: (a) a person nominated by the witness; (b) a person who attends the proceeding to prepare a news report of the proceeding and is authorised to attend for that purpose by the person’s employer. Note Publishing certain information in relation to sexual offence proceedings is an offence (see s 74). (5) In this section, a reference to a person giving evidence includes the person giving evidence by the playing of an audiovisual recording of the evidence at a hearing under division 4.3.3 (Special requirements—audiovisual recording of police interview) or division 4.3.4 (Giving evidence at pre-trial hearing).

103 Making of s 101 and s 102 orders—court not bound by rules of evidence For the purpose of making an order under section 101 or section 102, the court is not bound by the rules of evidence and may inform itself as it considers appropriate.

Evidence in any proceedings—miscellaneous Part 7.2 Part 7.2 Evidence in any proceedings— miscellaneous

104 Proof of document under law of Commonwealth country (1) This section applies if it is proved in a proceeding that a document is, under the law of a Commonwealth country, admissible in evidence in the courts in that country by the production of a copy of the document. Note 1 Proceeding—see the Legislation Act, dictionary, pt 1. Note 2 The Evidence Act 2011, s 48 and s 49 deal with other documents in foreign countries in proceedings in an ACT court. (2) Evidence of the document, or of an extract from the document, may be given in the proceeding by producing— (a) a copy of the document or an extract from the document that is proved to be an examined copy of the document or extract; or (b) a document (the copy document) that is or purports to be a copy of the document or extract if there is endorsed on or annexed to the copy document a certificate by the person having custody of the original document that the document is a true copy of the document or extract of which it is or purports to be a copy. (3) The production of a document that is or purports to be a certificate mentioned in subsection (2) (b) is evidence in a proceeding that the person by whom the certificate purports to be signed is the person who has custody of the original document or extract mentioned in the certificate without further proof of that fact.

Part 7.2 Evidence in any proceedings—miscellaneous (4) This section does not apply to a document mentioned in subsection (1) unless— (a) the party who presents evidence of the contents of the document has, not less than 28 days (or any other period prescribed by regulation or by rules of court) before the day on which the evidence is presented, served on each other party a copy of the document proposed to be tendered; or (b) the court directs that it must apply. court means an ACT court or evidence receiving entity.

Evidence in any proceedings—extended application of Evidence Act Part 7.3 Part 7.3 Evidence in any proceedings— extended application of Evidence Act

105 Extended application of Evidence Act—interpreters The Evidence Act 2011, section 30 applies to a proceeding in an evidence receiving entity. Note 1 Proceeding—see the Legislation Act, dictionary, pt 1. Note 2 The Evidence Act 2011, s 30 provides that a witness in a proceeding in an ACT court may give evidence through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, a question put to the witness.

110 Application—ch 8 This chapter applies to— (a) a proceeding in the Supreme Court; or (b) a proceeding in the Magistrates Court; or (c) an inquest or inquiry under the Coroners Act 1997.

111 Prohibition of publication of evidence etc (1) This section applies if a court considers that— (a) the publication of evidence given, or intended to be given, in a proceeding is likely to prejudice the administration of justice; or (b) in the interests of the administration of justice the names of any of the following people should not be published: (i) a party to the proceeding; (ii) a witness, or intended witness, in the proceeding. (2) The court may, at any time during or after the hearing of the proceeding, make an order forbidding the publication of— (a) the evidence or a stated part of the evidence; or (b) a report of the evidence; or (c) the name of the party or witness. (3) The court may make an order under subsection (2) (a) or (b) subject to any stated condition or for any period the court considers (4) If a court makes an order under subsection (2), the court may, if it considers it appropriate, direct that stated people, or everyone except stated people, remain outside the courtroom for a stated period.

Publication of evidence Chapter 8 (5) For this section, the publication of a reference or allusion to a person is taken to be a publication of the person’s name if— (a) the reference or allusion discloses the person’s identity; or (b) the person’s identity might reasonably be worked out from the reference or allusion.

112 Noncompliance with s 111 order A person commits an offence if the person does not comply with an order or direction under section 111.

120 Approved forms (1) The Minister may approve forms for this Act. (2) If the Minister approves a form for a particular purpose, the approved form must be used for the purpose. (3) An approved form is a notifiable instrument.

121 Regulation-making power (1) The Executive may make regulations for this Act. (2) A regulation may prescribe the amounts, or the way of working out amounts, payable to a territory court in relation to the cost of, or incidental to, the provision of an audiovisual link or audio link and ancillary equipment for chapter 3 (Use of audiovisual links and audio links). audio link—see section 16 (Definitions—ch 3). territory court—see section 16 (Definitions—ch 3).

Transitional—Crimes (Disclosure) Legislation Amendment Act 2024 Chapter 13

Chapter 13 Transitional—Crimes (Disclosure) Legislation Amendment Act 2024

165 Meaning of commencement day—ch 13 commencement day means the day the Crimes (Disclosure) Legislation Amendment Act 2024, section 12 commences.

166 Amendments do not apply to proceedings begun before commencement day The amendments to this Act made by the Crimes (Disclosure) Legislation Amendment Act 2024 do not apply to a proceeding that was begun before the commencement day.

167 Amendments apply to protected confidences made before, on or after commencement day (1) The amendments to this Act made by the Crimes (Disclosure) Legislation Amendment Act 2024 apply to a protected confidence made before, on or after the commencement day. (2) This section is subject to section 166.