Evidence by domestic violence complainants

[80-500] Evidence by domestic violence complainants

The Criminal Procedure Amendment (Domestic Violence Complainants) Act 2014 (the DVC Act) commenced on 1 June 2015 (s 2 LW 29 May 2015). The amendments apply to proceedings commenced on or after that date. The Act inserts Ch 6 Pt 4B into the Criminal Procedure Act 1986 (the Act) to enable a recorded video or audio statement of a domestic violence complainant to be 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.

[80-520] Domestic violence complainant

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.

[80-540] Ways in which evidence of a domestic violence complainant may be given

The Criminal Procedure Act provides that, for proceedings commenced on or after 1 June 2015, the evidence of a domestic violence complainant may be given wholly or partly:

(a) 

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).

(b) 

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.

(c) 

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 [81-160]).

(d) 

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).

(e) 

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].

(f) 

In the form of a recorded statement instead of a written statement for the purposes of committal proceedings: s 76A(1) (rep) (for proceedings which commenced before 30 April 2018); s 283D(1) (for proceedings which commenced on or after 30 April 2018).

[80-560] Form and requirements for a recorded statement to be given as evidence

For proceedings for domestic violence offences commenced on or after 1 June 2015, 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 in the Local Court 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 accused 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).

Note:

For proceedings which commenced before 30 April 2018, s 283E does not apply. See s 79A as in operation immediately before 30 April 2018 applies to proceedings which commenced before that date.

[80-580] 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 new 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 accused person 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 accused person 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 76A(4) (rep) (for proceedings which commenced before 30 April 2018); s 283D(1) (for proceedings commencing on or after 30 April 2018) 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].

[80-600] Service of and access to recorded statement

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

If the accused is not represented, only an audio copy of the recorded statement must be served on the accused 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 accused person 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 accused person is being questioned in relation to the alleged domestic violence offence

(b) 

at the request of the accused person, on a day arranged with the accused person

(c) 

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

If the prosecutor cannot comply with these requirements, the prosecutor must provide the accused person 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 accused person 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 an accused person to view or listen to a recorded statement on the ground that the accused person has not had a reasonable opportunity to view or listen to the recording: s 289Q(3).

[80-620] Warning to jury and provisions of transcripts to jury

Sections 289J–289K 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 accused person or give the evidence any greater or lesser weight because of the evidence being given in that way: s 289J.

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.

[80-640] 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).