Procedure in prescribed sexual offence cases
R Tupman, “Procedure in prescribed sexual offence cases”, paper presented at the District Court of New South Wales Annual Conference, 10–12 April 2007, Leura (revised February 2009).
This paper addresses specific procedures which must be considered in cases involving prescribed sexual offences, largely as a result of specific legislation. Sections 290–294C of the Criminal Procedure Act 1986 must be adopted during the evidence of the complainant in all proceedings for prescribed sexual offences, whether adult or child complainant. For instance, evidence of the complainant must be held in camera: s 291. All complainants are entitled to give evidence from outside the courtroom by CCTV or give evidence in court behind a screen: s 294B(3). A complainant is entitled to have a support person: s 294C. An unrepresented accused may not examine a complainant: s 294A.
There are special procedures applying to retrials under ss 306A–306G. For instance, the prosecutor may tender a record of the evidence given by the complainant in the first trial as the evidence in the retrial under s 306B. Sections 306H–306L relate to retrials where a previous trial has been discontinued for any reason including a hung jury, a discharged jury otherwise or if discontinued for any other reason. In such a case the prosecutor may tender as the evidence of the complainant, the original evidence which is defined in the same way as for retrials after appeal.
All vulnerable persons (a child or a cognitively impaired person) are entitled to give evidence-in-chief by way of a recording of their evidence made previously by an investigating official under s 306U of the Criminal Procedure Act 1986. Where evidence-in-chief is given via a recording pursuant to these provisions, the judge must warn the jury not to draw any inference adverse to the accused or give the evidence any greater or lesser weight because of the evidence being given in this way: s 306X.
The Evidence (Children) Act 1997 was repealed by s 5 of the Criminal Procedure Amendment (Vulnerable Persons) Act 2007 (commenced 12 October 2007). The Evidence (Children) Act continues to apply to proceedings that were pending immediately before the repeal of that Act and those proceedings are to continue to be dealt with as if the Evidence (Children) Act had not been repealed: Criminal Procedure Act, Sch 2, Pt 14, cl 56.
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 (commenced on 1 December 2008) omitted “an intellectually impaired person” and inserted “a cognitively impaired person”.
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).
Acknowledgment: this article was prepared by her Honour Judge Tupman and presented at the District Court of New South Wales Annual Conference, April 2007. Reproduced with permission. Updated February 2009.