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  • Writer's pictureGeoff Harrison

Children's Evidence

Updated: Nov 3, 2023


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Published by Geoff Harrison | 28 September 2023


The provisions relating to vulnerable persons or children giving evidence are set out in Part 6 of the Criminal Procedure Act 1986 ('the Act'). These provisions allow for a child's evidence in chief to be given by way of the playing of a recorded interview of a child who was under 16 years of age at the time of the making of the recorded interview: 306U(2) of the Act. This provision is subject to s306Y(2) in that a vulnerable person is not to give evidence by way of a recorded interview, if the court determines that it is not in the interest of justice for the vulnerable person to give the evidence in such a way.


The decision of LF v R [2023] NSWCCA 232 considered this aspect as to what constitutes, "not in the interest of justice".


Other sources:

Cases:

_______________________________________________________________________________


Extracted Legislation:


306M Crimninal Procedure Act 1986

Definitions:

....

"vulnerable person" means a child or a cognitively impaired person.


CRIMINAL PROCEDURE ACT 1986 - SECT 306R

Evidence to which this Division applies


(1) This Division applies to evidence of a previous representation of a vulnerable person made in the course of an interview during which the person is questioned by an investigating official in connection with the investigation of the commission or possible commission of an offence.


(2) To the extent that this Division applies to cognitively impaired persons, this Division does not apply to evidence of a previous representation made before the commencement of this Division.


CRIMINAL PROCEDURE ACT 1986 - SECT 306S

Ways in which evidence of vulnerable person may be given



(1) Subject to this Part, a vulnerable person may give evidence of a previous representation to which this Division applies made by the person in any criminal proceeding wholly or partly--

(a) in the form of a recording of the previous representation made by an investigating official of the interview in the course of which the previous representation was made and that is viewed or heard, or both, by the court, or

(b) orally in the courtroom, or

(c) if the evidence is given in any proceeding to which Division 4 applies--in accordance with alternative arrangements made under section 306W.

Note : See section 306ZA.


(2) Evidence in the form of a recording given by a vulnerable person under subsection (1) (a) is not required to be served on a party to any proceeding (including proceedings in relation to apprehended violence commenced under the Crimes (Domestic and Personal Violence) Act 2007 ).


(3) Nothing in this section affects the giving of evidence by means of a written statement for the purposes of Division 3 of Part 2 of Chapter 3.

Note : See also section 306ZN.


CRIMINAL PROCEDURE ACT 1986 - SECT 306T

Wishes of vulnerable person to be taken into account


(1) A person must not call a vulnerable person to give evidence of a previous representation to which this Division applies made by the vulnerable person by means other than a recording made by an investigating official of the interview in the course of which the previous representation was made unless the person has taken into account any wishes of the vulnerable person, considered in the light of--

(a) in the case of a child--the child's age and understanding, or

(b) in the case of a cognitively impaired person--the person's cognitive impairment.


(2) However, subsection (1) does not permit a person to require a vulnerable person to express the vulnerable person's wishes in relation to the matter.


CRIMINAL PROCEDURE ACT 1986 - SECT 306U

Vulnerable person entitled to give evidence in chief in form of recording


(1) A vulnerable person is entitled to give, and may give, evidence in chief of a previous representation to which this Division applies made by the person wholly or partly in the form of a recording made by an investigating official of the interview in the course of which the previous representation was made and that is viewed or heard, or both, by the court. The vulnerable person must not, unless the person otherwise chooses, be present in the court, or be visible or audible to the court by closed-circuit television or by means of any similar technology, while it is viewing or hearing the recording.


(2) Subject to section 306Y, a person is entitled to give, and may give (no matter what age the person is when the evidence is given), evidence as referred to in subsection (1) in the form of a recording of a previous representation to which this Division applies made by the person when the person was less than 16 years of age.

Note : Under section 306Y, a court may order that a vulnerable person not give evidence in the form of a recording if it is satisfied that it is not in the interests of justice for the evidence to be given by a recording.


(3) If a vulnerable person who gives evidence as referred to in subsection (1) is not the accused person in the proceeding, the vulnerable person must subsequently be available for cross-examination and re-examination--

(a) orally in the courtroom, or

(b) if the evidence is given in any proceeding to which Division 4 applies--in accordance with alternative arrangements made under section 306W.


(4) Subsection (3) does not apply in relation to committal proceedings.


(5) Section 5BA of the Evidence (Audio and Audio Visual Links) Act 1998 does not apply to evidence given as referred to in subsection (1).


CRIMINAL PROCEDURE ACT 1986 - SECT 306V

Admissibility of recorded evidence


(1) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995 ) do not prevent the admission or use of evidence of a previous representation to which this Division applies given by a vulnerable person under this Division in the form of a recording made by an investigating official.


(2) Evidence of a previous representation to which this Division applies of a vulnerable person who is not the accused person in a proceeding that is given by the vulnerable person in the form of a recording made by an investigating official is not to be admitted unless it is proved that the accused person and his or her Australian legal practitioner (if any) were given, in accordance with the regulations, a reasonable opportunity to listen to and, in the case of a video recording, view the recording.


(3) However, if the requirements of any regulations made under subsection (2) have not been complied with, the recording may be admitted if the court is satisfied that--

(a) the parties consent to the recording being admitted, or

(b) the accused person and his or her Australian legal practitioner (if any) have been given a reasonable opportunity otherwise than in accordance with such regulations to listen to or view the recording and it would be in the interests of justice to admit the recording.


(4) The court may rule as inadmissible the whole or any part of the contents of a recording adduced as evidence under this Division.


CRIMINAL PROCEDURE ACT 1986 - SECT 306W

Alternative arrangements for giving evidence


The court may order that alternative arrangements be made in accordance with Division 4 for the giving of evidence by the vulnerable person in any proceeding to which that Division applies.


CRIMINAL PROCEDURE ACT 1986 - SECT 306X

Warning to jury


If a vulnerable person gives evidence of a previous representation wholly or partly in the form of a recording made by an investigating official in accordance with this Division in any 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.


CRIMINAL PROCEDURE ACT 1986 - SECT 306Y

Evidence not to be given in form of recording if contrary to interests of justice


(1) A vulnerable person must not give evidence by means of a recording made by an investigating official in accordance with this Division if the court orders that such means not be used.


(2) The court may only make such an order if it is satisfied that it is not in the interests of justice for the vulnerable person's evidence to be given by a recording.


CRIMINAL PROCEDURE ACT 1986 - SECT 306Z

Transcripts of recordings


The court may order that a transcript be supplied to the court or, if there is a jury, to the jury, or both, of all or part of evidence of a previous representation to which this Division applies made by a vulnerable person that is given in the form of a recording if it appears to the court that a transcript would be likely to aid its or the jury's comprehension of the evidence.








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