Criminal Trial Courts Bench Book — Sexual assault trials — procedural matters

Pre-recorded evidence in child sexual offence proceedings

[5-400] Introduction

The Child Sexual Offence Evidence Pilot Scheme (the CSOEP) permits the pre-recording of the evidence of a witness who is a child complainant or child prosecution witness in a trial before the District Court for a prescribed sexual offence: Criminal Procedure Act 1986, Sch 2, Pt 29, cl 82. A prescribed sexual offence is defined in s 3(1) Criminal Procedure Act: cl 82. The operation of Pt 29, Div 2 was discussed in SC v R [2020] NSWCCA 314 at [16]–[38].

These provisions apply to proceedings for a prescribed sexual offence (regardless of when it was committed) that commenced on or after 5 November 2015: cl 83; Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Act 2015, s 2 (LW: 5.11.2015).

The CSOEP only operates at the Downing Centre and in Newcastle: cl 82. It extends until 30 June 2024: Criminal Procedure Regulation 2017, cl 108A.

[5-410] The requirements for, and conduct of, pre-recorded hearings

See also [10-525] Practice note: Child Sexual Offence Evidence pilot.

The Pilot is managed by the judges who preside over the Pilot in the District Court. Those judges usually conduct the pre-recorded evidence hearing, which is to be heard as soon as practicable after the accused’s first appearance in that court: cl 85(1). This hearing is held in the absence of the jury: cl 85(3). The Pilot is managed separately to the Child Sexual Assault List in that Court which is managed by another judge.

A child who is under 16 years old must give their evidence by way of a pre-recording: cl 84(1).

For witnesses who are 16 years or older, the court may, either on its own motion or upon application by a party to the proceedings, order that the witness give their evidence at a pre-recorded evidence hearing: cl 84(2). The witness is entitled to give their evidence in this way even if they become an adult: cl 84(7).

An order under either cll 84(1) or 84(2) may only be made if the court is satisfied it is in the interests of justice: cl 84(4).

When determining whether to make an order under cl 84(1):

  • the primary factors for consideration are the wishes and circumstances of the witness and the availability of court and other facilities necessary for a pre-recorded hearing to take place: cl 84(5)

  • other factors that may be considered include:

    (a) 

    sufficiency of preparation time for both parties, and

    (b) 

    continuity and availability of counsel at both the pre-recorded evidence hearing and the trial: cl 84(6).

The court will appoint a witness intermediary to assist with the giving of the child’s evidence: cl 89(3). Victim Services has established a panel of persons suitable for appointment: cl 89(1). In SC v R [2020] NSWCCA 314, the court observed that it was implicit from the terms of cl 89 that the intermediary would be on the panel: at [25].

A witness intermediary cannot be a relative, friend or acquaintance of the witness, or a person who has assisted the witness in a professional capacity or a party or potential witness in the proceedings: cl 89(5). In SC v R, a speech pathologist, who had conducted one session with the complainant but had subsequently supervised a student working with her, was disqualified from acting as a witness intermediary by cl 89(5)(b). The court concluded that, in those circumstances, the trial judge’s failure to revoke the intermediary’s appointment was erroneous: at [68]. The court held that the disqualifying conditions in cl 89(5) continued to operate after the witness intermediary had been appointed. The prohibition imposed by cl 89(5)(b) is on appointing an intermediary with a prior professional association with the witness; there is no requirement the assistance provided warrant a conclusion that the intermediary is no longer neutral or impartial; nor is it limited to direct assistance with a therapeutic component or function: SC v R at [65]–[66].

For the form of the oath or affirmation an intermediary must take before acting as an intermediary see Criminal Procedure Regulation 2017, cl 111.

The witness intermediary communicates with the witness — both in relation to the questions put and the answers given: cl 88(1). In MA v R [2022] NSWCCA 61 at [7], Macfarlan JA suggested the witness intermediary may also make recommendations concerning the way the complainant should be questioned: see also SC v R at [20].

Where evidence confirms that, by reason of events occurring before the intermediary’s appointment, they were disqualified under cll 89(5)(a), (b) or (c) when they were appointed, the court must revoke the appointment. Otherwise, the power is discretionary. The discretion to revoke an appointment is informed by the matters in cll 89(5)(a), (b) and (c), but only in the context of considering the intermediary’s capacity to perform their functions under cl 88(1) consistently with the duty imposed by cl 88(2) and the accused’s right to a fair trial. This requires an assessment of the likelihood they will be called as a witness, the nature and importance of the issue of fact their evidence is relevant to and the evidence it is said the intermediary can give: SC v R [2020] NSWCCA 314 at [33]–[34], [65].

The witness may give evidence in chief (as provided by s 306U) and be cross-examined and re-examined during the pre-recorded evidence hearing: cll 85(2), 85(6). Section 306U entitles a vulnerable person, defined in s 306M to include a child, to give their evidence in chief in the form of a recording made by an investigating official. However, the Child’s Interview (commonly referred to as a JIRT) is not played during the pre-recorded evidence hearing. The practice is for the child to have had the opportunity to watch their interview (or interviews) about 3 or 4 days before the hearing so it is fresh in their memory. See also [1-372] Giving evidence of out-of-court representations.

[5-420] Suggested direction — pre-recorded evidence

You are about to see a recording of [the complainant’s/child witness’] evidence, which was recorded before another judge. [The following will require adaptation if the representatives have changed since the pre-recorded evidence hearing: The Crown Prosecutor, the accused’s counsel and their instructing solicitors and the accused were all present when [the complainant/child witness] gave [her/his] evidence.] You will also see there is another person with [the complainant/child witness] on the recording. This person is referred to as a witness intermediary and [she/he] is there to assist [the complainant/child witness] with communication if that is required. The fact this part of [the complainant’s/child witness’] evidence was recorded and is not being given live, and that you are seeing it on a screen does not mean you treat [her/his] evidence any differently to the evidence of any other witness you hear in the courtroom. You pay the same attention to [her/his] evidence as you do to those witnesses. This is all standard procedure. You should not draw any inference against the accused because the evidence is being given in this way, or give [the complainant’s/child witness’] evidence any greater or lesser weight. You assess [her/his] evidence in the same way as you assess the evidence of any of the other witnesses in the trial.

As with the evidence of any witness, it is important that you pay attention to the evidence and understand that all witnesses only give his/her evidence once. Witnesses do not return to court to repeat their evidence after it has been given and nor is the evidence contained in this recording played again. So, if while the recording is being played you find your attention is waning, put your hand up and we will take a short break.

[If a transcript of the recording is provided, and no other direction about transcripts is necessary, add: The transcript is being provided to you as an aid to your understanding of what you hear when the recording is being played. However, the recording is the primary evidence and if there is a discrepancy between what you hear on the recording and what appears in the transcript, you should act on what you hear. Transcripts are sometimes difficult to get completely accurate. Much depends on the quality of the recording. In reality, a transcript is simply someone’s opinion of what they thought they heard when they listened to the recording.]

Notes:

1. 

The suggested direction above is in the terms required by cl 91.

2. 

It is desirable that there be prior discussion with the parties about whether, in the circumstances of the individual case, a transcript of the recording should be provided to the jury to assist with comprehension: cl 86(5). If the transcript is to be provided, it is desirable that the discussion also address whether the transcripts provided to the jurors should be retrieved at the end of the playing of the recording. If there is a possibility of this occurring, jurors should be told so that any notes they may wish to make are not made on the transcript. If transcripts are provided but then retrieved, it is suggested they be placed in individual envelopes with juror identification on the outside so they may be returned to the correct juror if that should later occur.

3. 

Unless the witness otherwise chooses, they must not be present in the court, or be visible or audible to the court by CCTV or other technology, while a recording made pursuant to s 306U or made at the hearing is being viewed or heard: cl 85(5).

4. 

Further evidence can only be given by a witness with the leave of the court: cl 87(1). This subclause applies despite anything to the contrary in the Criminal Procedure Act or the Evidence Act 1995: cl 87(5). Either party may apply for leave: cl 87(2). Leave must not be given unless the court is satisfied:

(a) 

the witness or party is seeking leave because of becoming aware of a matter of which the party could not reasonably have been aware at the time of the recording, or

(b) 

it is otherwise in the interests of justice to give leave.

5. 

The recording of the evidence should not be marked as an exhibit and should not be sent with the exhibits to the jury when they retire to consider their verdict: CF v R [2017] NSWCCA 318 at [63]–[65]; R v NZ (2005) 63 NSWLR 628 at [192]–[192], [210](a); Gately v The Queen (2007) 232 CLR 208 at [93]. See also AB (a pseudonym) v R [2019] NSWCCA 82 at [40]–[42].

6. 

If, during deliberations, the jury ask to view the pre-recorded evidence of the witness this should ordinarily be done by replaying the evidence in court in the presence of the trial judge, counsel and the accused: Gately v The Queen at [96]. It is generally undesirable to allow the jury unsupervised access to the complainant’s recorded evidence, although a trial judge has a discretion to do so: CF v R [2017] NSWCCA 318 at [82]–[83]; see also R v NZ at [196], [210](a). However, in determining the procedure to adopt, consideration should be given to the significance of the evidence in the trial as a whole: R v NZ at [212]. A relevant consideration is to maintain the balance of fairness in the trial: Gately v The Queen at [80]; R v NZ at [169]–[176], [212]; see also CF v R at [92].

7. 

Where the evidence is played to the jury again, consideration should be given to repeating the direction that the evidence is not to be afforded any greater weight than other evidence given in the trial: R v NZ at [210](e); see also JT v R [2021] NSWCCA 223 at [82]–[89] and also Stevenson v R [2022] NSWCCA 133 at [62]–[67].