Criminal Trial Courts Bench Book — Trial procedure

Where proceedings are in respect of a “prescribed sexual offence” (as defined in s 3), alternative arrangements may be made for a complainant giving evidence: s 294B(1).

The complainant is entitled to, but may choose not to, give evidence from a place other than the courtroom by means of CCTV or other technology that enables communication between that place and the courtroom: s 294B(3)(a). The complainant may instead choose to give evidence by making use of alternative arrangements, such as planned seating arrangements or the use of screens, to restrict contact (including visual contact) between the complainant and the accused person or any other persons in the courtroom: s 294B(3)(b).

Despite the entitlement of a complainant to give evidence by way of CCTV or other technology (s 294B(3)), the court may order that such methods are not to be used: s 294B(5). However, such an order can only be made where the court is satisfied that there are special reasons, in the interests of justice, for the complainant’s evidence not to be given in such a manner: s 294B(6). It is generally not a sufficient reason to deny the use of CCTV or other technology merely because the jury might form the impression that the accused is/was violent: Sudath v R (2008) 187 A Crim R 550 at [28]–[29]. Section 294B(2) provides that s 294B does not apply to the giving of evidence by a vulnerable person (within the meaning of Pt 6) if Div 4 of that Part applies to the giving of that evidence.

The protections afforded to complainants extend to witnesses against whom an accused person is alleged to have committed a sexual offence: s 294D. A “sexual offence witness” is defined in s 294D.

Similar provisions apply in proceedings relating to the commission of a personal assault offence (as defined in s 306M(1)), for witnesses who fall within the definition of a “vulnerable person” following the passing of the Criminal Procedure Amendment (Vulnerable Persons) Act 2007. The transitional provision provided that amendments made to the Criminal Procedure Act by that Act do not extend to any proceedings commenced before the commencement of the amendments (12 October 2007) and any such proceedings are to be dealt with as if the amending Act had not been enacted: Sch 2, Pt 14, cl 55 Criminal Procedure Act.

A vulnerable person is defined to include a child: s 306M(1). The provisions apply to children under the age of 16 years at the time the evidence is given (s 306P(1)), or children under the age of 18 years at the time the evidence is given but who were under the age of 16 years at the time the charge was laid: s 306ZB(2).

The Criminal Procedure Amendment (Vulnerable Persons) Act 2007 initially defined a vulnerable person to be “an intellectually impaired person” in s 306M(1). However the Crimes Amendment (Cognitive Impairment — Sexual Offences) Act 2008, which commenced on 1 December 2008, omitted “an intellectually impaired person” and inserted instead “a cognitively impaired person”. The provisions that previously applied to the evidence of “intellectually impaired persons” (including the various means by which “vulnerable persons” may give evidence) now apply to the evidence of “cognitively impaired persons” (ss 76, 91, 185, 306M, 306P, 306R, 306T and 306ZK): Sch 2.

A cognitively impaired person is defined in s 306M(2) to include any of the following:

The 2008 Act did not have transitional provisions addressing whether the new cognitively impaired person definition extends to any proceedings commenced before the commencement of the amendments. This is apparently because the amendments in the 2008 Act merely involved a change in the terminology used for this class of vulnerable persons. For this reason the transitional provision for the 2007 Act (referred to above) continues to have application.

The provisions apply to cognitively impaired persons “only if the court is satisfied that the facts of the case may be better ascertained if the person’s evidence is given in such a manner”: s 306P(2).

The key provisions corresponding to those for sexual offence complainants are:

The court may make an order for an accused who is a vulnerable person to give evidence by alternative means: s 306ZC(2). With respect to a child, such an order may only be made if the court is satisfied that the child may otherwise suffer mental or emotional harm or that the facts may be better ascertained if an order is made: s 306ZC(3).

Part I AD Crimes Act 1914 (Cth) provides for evidence to be given by way of CCTV and the use of alternative arrangements with respect to vulnerable persons. The Table at [1-360] summarises the provisions. Assuming the facilities are available, a vulnerable person must give evidence by way of CCTV unless the court orders otherwise on the basis that it is not in the interests of justice: s 15YI(1)–(2). A vulnerable person (as defined in s 15YI(1A)) aged 16 years or over may choose not to give evidence by way of CCTV: s 15YI(1)(a). Other arrangements, such as the use of screens or planned seating, may be used as an alternative to CCTV: s 15YL.

A “government agency witness”, defined in s 5BAA(5) Evidence (Audio and Audio Visual Links) Act 1998 as including police witnesses who give corroborative evidence and staff of the NSW Health Service, must give evidence by audio link unless the court otherwise directs and subject to any relevant rules of the court: s 5BAA(1). The section does not apply unless the necessary links are available or can reasonably be made available: s 5BAA(2).

The DPP (NSW) Prosecution Guidelines remind prosecutors proposing to call government agency witnesses that the convenience of those witnesses must always be the paramount consideration, regardless of any perceptions that the evidence might be diminished because it is being given remotely: see Guideline 14.5 “Calling of expert evidence and the use of audio visual links (AVL)”. It also states that the best practice to be adopted is that the court be advised of the need for AVL when the trial is fixed for hearing.

Practice Note No SC Gen 15 “Use of audio-visual links in criminal and certain civil proceedings”, which commenced on 1 January 2009, establishes arrangements for the use of AVL in criminal proceedings in NSW courts. Clause 5 provides that in the case of appearances by government agency witnesses, if they have not already done so, no less than 10 working days prior to a hearing, parties to the proceedings are to advise the court and each other if government witnesses are to give evidence by AVL. There is no equivalent practice note in the District Court.

The requirement to give the jury a warning where evidence is given via CCTV or other technology applies to complainants in prescribed sexual offence proceedings (s 294B(7)) and to vulnerable persons in personal assault offence proceedings: s 306ZI(1). In either case, the judge must:

A warning in similar terms is required where alternative arrangements (eg screens and seating) are employed: ss 294B(7), 306ZI(4).

In R v DBG (2002) 133 A Crim R 227, it was held at [23]:

This passage in R v DGB was approved in RELC v R (2006) 167 A Crim R 484 at [43]–[44].

Section 15YQ(1)(b) Crimes Act 1914 (Cth) provides that the judge is not to warn the jury or suggest to the jury in any way that the law requires greater or lesser weight to be given to evidence that is given by way of CCTV or alternative arrangements. This does not appear to preclude a direction in the terms suggested above. If the full direction is not given, it may be considered appropriate to at least inform the jury that the giving of evidence in this fashion is standard procedure in cases of the type.

Complainants in sexual offence proceedings and vulnerable persons in criminal proceedings in any court are entitled to have a support person present when they give evidence: ss 294C(1), 306ZK(2). This applies even where the witness gives evidence by way of alternative means or arrangements: ss 294C(2)(a), 306ZD(3).

In the case of a vulnerable person, the judge must under s 306ZI(3):

There is no corresponding requirement in relation to complainants in sexual offence proceedings. Nevertheless, it may be considered appropriate to say something along the lines of what is said in the case of vulnerable persons.

A vulnerable person may be accompanied by a support person when giving evidence in Commonwealth sexual offence proceedings, even if evidence is given by alternative means: ss 15YJ(1)(c), 15YO Crimes Act 1914 (Cth). The judge is not to warn the jury or suggest to the jury in any way that the law requires greater or lesser weight to be given to evidence because the child giving evidence is accompanied by an adult: s 15YQ(1)(d). This does not appear to preclude a direction in the terms suggested above.

If a statement made by a vulnerable person to an investigating official regarding a criminal offence is recorded, the vulnerable person is entitled to give evidence in chief in the form of the recording: s 306U(1) Criminal Procedure Act 1986. In R v NZ (2005) 63 NSWLR 628 it was observed at [170]:

With respect to children, the right applies to a child who was under the age of 16 years at the time the recording was made, regardless of his or her age at the time of giving evidence: s 306U(2). Unless the witness giving evidence is the accused, he or she, must be available for cross-examination and re-examination: s 306U(3). The cross-examination and re-examination may be conducted either orally in the courtroom or by means of alternative arrangements: ss 306U(3), 306W.

The hearsay and opinion rules under the Evidence Act 1995 do not prevent the admission or use of recorded evidence: s 306V: Tikomaimaleya v R (2017) 95 NSWLR 315 at [54]. The recording is not to be admitted unless it is proved that the accused person and his or her lawyer were given a reasonable opportunity to listen to, or view the recording, in accordance with the regulations: s 306V(2); Pt 5 Criminal Procedure Regulation 2017. However, s 306V(3) provides that a recorded statement may be admitted into evidence, despite a failure to comply with notice requirements in the regulations, where the parties consent or if the accused has been given a reasonable opportunity to access the recording and it would be in the interests of justice for it to be admitted. The trial judge retains a discretion to rule that the whole or any part of the contents of a recording is inadmissible: s 306V(4).

If it is submitted at trial that at the time of the recorded interview the vulnerable person (in accordance with s 13(1) Evidence Act 1995) either lacked a capacity to understand a question about the fact, or had an incapacity to give an intelligible answer to a question about the fact, the trial judge is “obliged to make a finding” about the vulnerable person’s capacity at the time of the interview: Tikomaimaleya v R (2017) 95 NSWLR 315 at [54], [56]. For that purpose the judge can observe the recording of the interview itself and also obtain information from other sources in accordance with s 13(8): Tikomaimaleya v R at [56].

See below at [1-378] for the preferred procedure for pre-recorded interviews.

A judge may order that a vulnerable person must not give evidence by means of a recording, but only if satisfied that it is not in the interests of justice for the vulnerable person’s evidence to be given in that way: s 306Y.

Note that these provisions do not apply to complainants in sexual offence proceedings under NSW legislation per se, unless they fall within the definition of a vulnerable person.

Chapter 6, Pt 4B Criminal Procedure Act 1986 contains specific provisions governing the giving of evidence by domestic violence complainants. These are contained in summary form in the Table at [1-360]. Section 289F enables complainants in domestic violence proceedings to give evidence in chief wholly, or partly, in the form of a recorded statement. A complainant whose evidence in chief is wholly or partly in the form of a recorded statement must be available for cross-examination and re-examination: s 289F(5).

Part 4B operates in addition to the Evidence Act 1995, except where specific exception is made: s 289E. The key exception is the removal of the hearsay and opinion rules insofar as they apply to recorded statements of domestic violence complainants in criminal proceedings: s 289I.

A “recorded statement” is defined as “a recording made by a police officer of a representation made by a complainant when the complainant is questioned by a police officer in connection with the investigation of the commission of a domestic violence offence”: s 289D. Section 3(1) defines a “domestic violence offence” as “a domestic violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007”. A “domestic violence complainant” is defined as the person against whom the domestic violence offence is alleged to have been committed, but does not include a vulnerable person: s 3(1). A transcript of the recorded statement may be given to the jury: s 289K.

The preferred procedure for a pre-recorded interview of a witness is set out below at [1-378].

The judge must warn the jury not to draw any inference adverse to the accused or give the complainant’s statement any greater or lesser weight because it is recorded rather than oral: s 289J. See Suggested direction — evidence in the form of a recording at [1-376], which includes a form of words for the warning and where the transcript of the recorded statement is provided to the jury.

Under s 15YM(1) Crimes Act 1914 (Cth), the court may grant leave for a vulnerable person (including a child witness for a child proceeding: s 15YM(1A)) to give evidence by way of a pre-recorded video in proceedings for Commonwealth sexual offences, as defined in s 15Y. The court must not grant leave if satisfied that it is not in the interests of justice for evidence to be received in this way: s 15YM(2). The person must be available for cross-examination and re-examination if he or she gives evidence in chief by way of video recording: s 15YM(4).

Section 306X Criminal Procedure Act 1986 provides:

The giving of this warning is mandatory: Galvin v R (2006) 161 A Crim R 449 at [56]. In R v NZ at [208], the court expressed the view that the trial judge should also give a warning to the jury as to the caution with which they are to approach the re-playing of the videotape of the evidence in chief of a witness, in the manner suggested by McMurdo P in R v H (1999) 2 Qd R 283:

If the jury is given a transcript of the recording (expressly permitted under s 306Z), the judge should also warn the jury that the transcript is not evidence and is provided only as an aide-memoir: RELC v R (2006) 167 A Crim R 484 at [32]–[33].

See [1-368] for the preferred procedure where the evidence in chief of a witness has been given by way of pre-recorded interview.

See the suggested direction at [4-377] where the complainant’s evidence in an earlier trial is played in a retrial.

Section 15YQ(1)(c) Crimes Act 1914 (Cth) provides that the judge is not to warn the jury or suggest to the jury in any way that the law requires greater or lesser weight to be given to evidence that is given by way of a video recording. This does not appear to preclude a direction in the terms suggested above.

Part I AE Crimes Act 1914 (Cth) governs the taking of evidence by audio visual links in proceedings for Commonwealth terrorism and related offences (as defined in s 15YU). On application by the prosecutor, the court must permit evidence to be given by way of video link unless it would have a “substantial adverse effect on the right of a defendant in the proceedings to receive a fair hearing”: s 15YV(1); R v Lodhi at [48]. The onus is on the defendant to establish that the prosecutor’s application should be refused and there is no obligation on the prosecution to establish a good reason for evidence being taken by video link: R v Lodhi at [51], [61]. On application by the defendant, the court must permit evidence to be given by way of video link unless it would be “inconsistent with the interests of justice”: s 15YV(2). In either case, reasonable notice of the application must be given and video-link facilities must be available. These provisions do not apply to the defendant: s 15YV(1)(d) and (2)(d). A direction or order for the receipt of evidence by audio visual link is subject to appellate review: s 15YZD.

There are also specific provisions in Div 279 Criminal Code Act 1995 (Cth) regarding proceedings for child sex tourism offences. The court may, on application by a party to the proceeding, direct that evidence from a witness (other than the defendant) be taken by video link from outside Australia if satisfied that facilities are available and it is in the interests of justice that evidence be taken in this way. The court must also be satisfied that attendance of the witness at court would cause unreasonable expense or inconvenience, cause the witness psychological harm or unreasonable distress, or cause the witness to become so intimidated or distressed that the witness’s reliability would be significantly reduced: s 279.2. Sections 279.1–279.7 provide for the technical requirements for video link, the application of laws about witnesses, and the administration of oaths and affirmations.

There is no NSW legislative requirement for any direction or warning to be given when evidence is received by way of audio or audio visual link. However, in R v Wilkie [2005] NSWSC 794, a case in which the accused opposed the use of the audio visual links for two crucial Crown witnesses whose credit was in issue, Howie J said at [72]–[73]:

If evidence is given by way of video link under s 15YV Crimes Act 1914 (Cth) for Commonwealth terrorism and related offences, the judge “must give the jury such direction as the judge thinks necessary to ensure that the jury gives the same weight to the evidence as if it had been given by the witness in the courtroom or other place where the court is sitting”: s 15YZ(1). In R v Lodhi, Whealy J said at [67]:

There is no corresponding provision with respect to proceedings for child sex tourism offences.