Evidence by domestic violence complainants

[8-000] Evidence by domestic violence complainants

The Criminal Procedure Act 1986 (the Act) makes provision for special procedures for domestic violence complainants to give evidence.

From 25 November 2020, following commencement of Ch 6, Pt 4B, Div 5 of the Act (Giving of evidence by domestic violence complainants – other provisions), the court should be closed when a domestic violence complainant in domestic violence offence proceedings gives evidence, including when a recording of their evidence is played in court. Division 5 extends the protections available for such witnesses permitting them to give evidence remotely.

Further, from 1 September 2021, in domestic violence offence proceedings where a defendant is self-represented, a complainant cannot be questioned directly in evidence by the defendant, but must be examined through a court appointed questioner, or through the use of court technology.

A recorded video or audio statement of a domestic violence complainant is admissible as evidence in chief in criminal proceedings for domestic violence offences and in concurrent or related proceedings for applications for apprehended domestic violence orders under the Crimes (Domestic and Personal Violence) Act 2007. The recorded video or audio statement may also be used in committal and summary proceedings instead of a written statement.

[8-020] Domestic violence complainant and proceedings

A domestic violence complainant is defined in s 3 of the Act as a person against whom the domestic violence offence is alleged to have been committed, but does not include a person who is a vulnerable person within the meaning of Pt 6 of the Act. A domestic violence offence is an offence within the meaning of the Crimes (Domestic and Personal Violence) Act.

Chapter 6, Pt 4B, Div 5 of the Act (ss 289T–289VA) applies to domestic violence offence proceedings, and also apprehended violence order proceedings involving a defendant charged with a domestic violence offence and a protected person who is the alleged victim of the offence: s 289T.

[8-030] Close court when domestic violence complainants give evidence

A domestic violence complainant’s evidence, including a recording, must be given in closed court: s 289U(1). However, if their evidence also relates to a prescribed sexual offence, the media may be permitted access to that part of the proceedings pursuant to s 291C.

Section 289U(4) makes clear that the obligation to close the court in domestic violence proceedings extends to:

  • a complainant who gives evidence in a way provided for by other provisions in Pt 4B or one who is a vulnerable person and entitled to give evidence in the way provided for by Ch 6, Pt 6 (s 289U(4)(a)); and

  • does not affect the complainant’s entitlement to:

    (i) 

    give evidence in a way permitted by other provisions in Pt 4B, or Pt 6 (if the complainant is a vulnerable person); or

    (ii) 

    have a support person present when giving evidence under s 306ZQ.

A complainant’s evidence may only be heard in open court if a party requests and the court is satisfied there are special reasons in the interests of justice, or the complainant consents: s 289U(2). The principle of open justice does not, of itself, constitute special reasons in the interests of justice: s 289U(3).

A court may direct that the court may be closed for other parts of the proceedings: s 289UA. A direction may be made on the court’s own motion or at the request of one of the parties. In making such a direction, s 289UA(3) requires the court to consider:

  • the complainant’s needs to have any person excluded from, or present in, the proceedings: ss 289UA(3)(a), (b)

  • the interests of justice: s 289UA(3)(c), and

  • any other matter the court considers relevant: s 289UA(3)(d).

Section 289UA operates in addition to s 289U: s 289UA(4).

A person may be exempted from a direction under s 289UA to allow them to be present to support a person giving evidence, or for any other purpose the court thinks fit: s 289UA(5).

[8-040] Ways in which evidence of a domestic violence complainant may be given

The Criminal Procedure Act provides that the evidence of a domestic violence complainant may be given:

(a) 

By “alternative means” — from a place other than the courtroom by audio visual link or two way communication technology, or using “alternative arrangements” to restrict visual and other contact with the defendant or other persons in the courtroom using screens or planned seating arrangements: s 289V(1). The complainant is entitled to give their evidence in this way but may choose not to. Part or all of the proceedings may be adjourned to another court or place to enable this, and the court may order a court officer be present at the place: ss 289V(2), 289V(7). A court may order that alternative means of giving evidence are not to be used if there are special reasons in the interests of justice: ss 289V(3), 289V(4). The prosecution must provide the court with a “Notice: Evidence of domestic violence complainant in criminal proceedings” at the first mention indicating whether the complainant wishes to give evidence by alternative means or using alternative arrangements (Attachment E of PN 1/2012).

(b) 

In the form of a recorded statement. This is an audio recording or a video and audio recording of a representation made by a complainant when the complainant is questioned by a police officer in connection with a domestic violence offence. The recording must be made by a police officer with the complainant’s informed consent as soon as practicable after the commission of the offence: ss 289C(1), 289D, 289F(1).

(c) 

In the form of a recorded statement if the evidence is given in any concurrent or related proceedings for an order under the Crimes (Domestic and Personal Violence) Act: s 289H.

(d) 

If the evidence is given in prescribed sexual assault proceedings, then the evidence may be given in accordance with alternative arrangements made under s 294B: s 294B(2A). (See [10-140]).

(e) 

The evidence may be given in accordance with existing alternative arrangements provided for such as by audio visual link (AVL) under the Evidence (Audio and Audio Visual Links) Act 1998: s 289F(6).

(f) 

In the form of a recorded statement instead of a written statement for the purposes of summary proceedings: s 185A(1). When a recorded statement has been served, the brief of evidence is not required to also include a written statement from the complainant: s 185A(4); DPP v Nagler [2018] NSWSC 416 at [28].

(g) 

In the form of a recorded statement instead of a written statement for the purposes of committal proceedings: s 283D(1).

[8-060] Form and requirements for a recorded statement to be given as evidence

For proceedings for domestic violence offences the main provisions in the Criminal Procedure Act are as follows:

(a) 

A domestic violence complainant (who is not a vulnerable person) is entitled to give evidence in chief by a recorded statement. The recorded statement is viewed or heard by the court: 289F(1). Once the recording is “viewed” or heard it becomes evidence in the proceedings, regardless of whether it forms part of the transcript: DPP v Al-Zuhairi [2018] NSWCCA 151 at [40]. There is no requirement to formally tender the recording. It is sufficient that it be marked for identification: DPP v Al-Zuhairi at [53].

(b) 

A recorded statement may be in the form of questions and answers, that is, an interview conducted by a police officer: ss 283E(1); 289F(2); 289D.

(c) 

The complainant must state in the recorded statement his or her age, a statement as to the truth of the representation, and any other matter prescribed by the regulations: ss 283E(2); 289(3).

(d) 

If the representation in the recorded statement is wholly or partly in a language other than English, the recorded statement, or part thereof, must contain an English translation or be accompanied by a separate written English translation: ss 283E(3); 289F(4).

(e) 

Except for committal proceedings, the domestic violence complainant must be available for cross-examination and re-examination, either orally in the courtroom, or by way of alternative arrangements such as closed circuit television if applicable: s 289F(5).

(f) 

In determining whether the complainant gives evidence orally or in the form of a recording, the prosecutor must take into account the complainant’s wishes, any evidence of the defendant intimidating the complainant, and the objects of the Crimes (Domestic and Personal Violence) Act: s 289G.

(g) 

The recorded statement may be given wholly or partly in concurrent or related proceedings for applications for apprehended domestic violence orders under the Crimes (Domestic and Personal Violence) Act: s 289H.

(h) 

A complainant’s failure to give evidence by way of a recorded statement or a police officer’s failure to record a representation in accordance with Pt 4B do not affect the validity of any criminal proceeding: s 289N.

(i) 

On application, the court must order the return of the recorded statement to the prosecutor: s 289O(1).

[8-080] Admissibility of a recorded statement and relationship with Evidence Act 1995

Section 289I(1) of Pt 4B provides that 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. The operation of the Evidence Act is not affected by the operation of Pt 4B unless a contrary intention is shown: s 289E. Section 289F does not displace the operation of the Evidence Act: s 289F(6). Therefore, where the maker of the recording is not available, s 65 (exception to hearsay rule) Evidence Act is not affected by s 289F(5).

A recorded statement is not admissible unless the defendant was given, in accordance with the service and access requirements of Ch 6 Pt 5 Div 3, a reasonable opportunity to listen to, and, in the case of a video recording, view the recorded statement: s 289I(2).

The court may admit the recorded statement if the Div 3 requirements have not been complied with if:

(a) 

the court is satisfied that the parties consent to the recorded statement being admitted, or

(b) 

the defendant or his or her Australian legal practitioner (if any) have been given a reasonable opportunity otherwise than in accordance with Div 3 to listen to or view the recorded statement and it would be in the interests of justice to admit the recorded statement: s 283D(1), s 283D(3); s 289I(3).

If a magistrate is asked to determine the admissibility of a recorded statement by a domestic violence complainant, given the time pressures in the Local Court, a degree of flexibility and informality in terms of conducting a voir dire may be appropriate. However, the minimum requirement is that the magistrate be aware of the content of the evidence he or she is being asked to exclude, otherwise the magistrate is not in a position to assess the probative value of the evidence or the extent to which it might create unfair prejudice: DPP v Nagler [2018] NSWSC 416 at [20]–[22].

[8-100] Service of and access to recorded statement

If the defendant is represented, a copy of the recorded statement must be served on the defendant as soon as practicable after the proceedings commenced or the prosecutor determines that evidence will be given in that form, whichever is later: s 289L(2).

If the defendant is not represented, only an audio copy of the recorded statement must be served on the defendant soon as practicable after the proceedings are commenced or the prosecutor determines that evidence is to be given in the form of the recorded statement, whichever occurs later: s 289M(2). However, s 289M(2) requires the prosecutor to provide the defendant with an opportunity to view a recorded statement in the form of a video recording at a police station on one or more of the following occasions:

(a) 

when the defendant is being questioned in relation to the alleged domestic violence offence

(b) 

at the request of the defendant, on a day arranged with the defendant

(c) 

on another day specified by notice in writing given to the defendant by the prosecutor before committal proceedings or the trial commences.

If the prosecutor cannot comply with these requirements, the prosecutor must provide the defendant with an opportunity to view the video recorded statement on a day when proceedings relating to the offence are held.

Evidence may not be adduced in any proceedings of the behaviour or response of an defendant when viewing a recorded statement at a place specified for that purpose under this section, unless:

(a) 

the viewing took place while the person was being questioned in relation to an alleged domestic violence offence, or

(b) 

the proceedings relate to the behaviour.

Court may adjourn proceedings

A court may adjourn proceedings relating to a domestic violence offence for not more than 14 days to enable a defendant to view or listen to a recorded statement on the ground that the defendant has not had a reasonable opportunity to view or listen to the recording: s 289Q(3).

[8-110] Court appointed questioners for self-represented defendant

Where a defendant is not represented by an Australian legal practitioner, a complainant in domestic violence offence proceedings cannot be directly examined by the defendant, but must instead be examined by a court appointed questioner (CAQ), or through the use of court technology: ss 289VA(1), 289VA(2).

A CAQ is to ask the complainant only the questions that the defendant requests be put to the complainant, and must not independently give the defendant legal or other advice: ss 289VA(4), 289VA(5).

The court does not have a discretion to decline to appoint a CAQ or use court technology under s 289VA(2), despite anything to the contrary in s 306ZL (see [8-140] Giving evidence by a domestic violence complainant who is also a vulnerable person) or another Act or law: s 289VA(6).

The requirement in s 289VA(2) applies whether or not the complainant gives evidence via AVL or other similar technology, or other alternative arrangements: s 289VA(7).

Suggested procedure

The following procedure is suggested:

(a) 

At the earliest possible opportunity in domestic violence offence proceedings (ideally at first mention), the court should inform a self-represented defendant that they are prevented by law from personally questioning the complainant, and that the court must appoint a person to ask questions on their behalf. The court should advise the defendant they will need to prepare a list of questions they wish for the complainant to be asked in cross-examination (for the suggested form of words, see Suggested information and advice, below).

(b) 

Once it is known a hearing is proceeding with a self-represented defendant, the court should appoint the CAQ as soon as possible, and in sufficient time for them to be present in court/by AVL to hear the complainant’s evidence in chief: Clark v R (2008) 185 A Crim R 1 at [45], [55]. If it not known until the hearing that a defendant is self-represented, the matter may need to be stood down to allow time for the court to make the necessary arrangements.

(c) 

At the commencement of the hearing, the court should confirm whether the defendant has prepared a list of questions sought to be asked of the complainant in cross-examination. Consistent with a magistrate’s obligations with respect to a self-represented defendant, the magistrate should explain the proposed procedure for cross-examination of the complainant to the defendant and advise of the nature and form of questions that are not permissible.

There is no requirement that the draft questions be made available to the prosecution, or the court for its approval as: “any question to be asked of a witness in cross-examination may ride upon the answer just given. The requirement to frame all questions in advance may impart a rigidity which robs a cross-examination of its effectiveness”: Clark v R, above, at [48].

(d) 

The magistrate will explain to the CAQ their role, that is, that they are only to ask, verbatim, the questions sought to be put by the defendant (for suggested form of words, see Suggested information and advice, below).

(e) 

If the defendant is not literate, the CAQ or, if necessary, an interpreter, may write out the questions sought to be put by the defendant.

(f) 

Once the complainant has given evidence in chief, the defendant should be given the opportunity to add to and/or re-formulate the list of questions they’ve prepared.

(g) 

The CAQ will then ask the complainant only the questions that the defendant has requested be asked.

(h) 

If necessary, during cross-examination, the defendant will be given an opportunity to reformulate the questions in accordance with the court’s rulings on objections and admissibility.

(i) 

After the complainant has answered the questions, the magistrate will ask the defendant if they have any further questions arising from the complainant’s answers, or any questions previously overlooked.

(j) 

If the defendant has further questions, the procedures set out in paras (d)–(e) and (g)–(i) should be repeated.

Suggested information and advice

[8-120] Warning to jury and provisions of transcripts to jury

Sections 289J–289K, 289VA(8) and 306ZR are concerned with jury trials but may be instructive to magistrates in evaluating evidence. If a complainant gives evidence wholly or partly in the form of a recorded statement in proceedings in which there is a jury, the judge must warn the jury not to draw any inference adverse to the defendant or give the evidence any greater or lesser weight because of the evidence being given in that way: s 289J. This warning also applies when a complainant gives evidence by alternative means or using alternative arrangements, or is examined by a CAQ: ss 289V(5), 289VA(8).

Further, in a trial for a domestic violence offence if it is suggested there was an absence of, or a delay in, complaint of the offence, the judge must warn the jury that there may be good reasons for the delay and it does not necessarily mean the allegation is false, but must not warn them that the delay is relevant to the complainant’s credibility unless there is evidence sufficient to justify such a warning: s 306ZR.

The warnings pursuant to ss 289V(5) and 306ZR do not apply to hearings which commenced before 25 November 2020.

In a jury trial, the court may order that a transcript of all or part of the evidence given in the form of a recorded statement be supplied to the jury if it appears to the court that a transcript would be likely to aid the jury’s comprehension of the evidence: s 289K.

[8-140] Giving of evidence by a domestic violence complainant who is also a vulnerable person

Where a domestic violence complainant is a child or cognitively impaired person (that is, a vulnerable person within the meaning of Pt 6 of the Act), the provisions of Pt 6, Div 4 continue to apply as the definition of a domestic violence complainant specifically excludes a vulnerable person: s 3.

Support persons

If the domestic violence complainant is a child or cognitively impaired person (that is a vulnerable person), s 294C applies rather than s 306ZK regarding entitlements to one or more support persons: s 294C(7).