Evidence (Audio Visual and Audio Linking) Act 1997 (Vic)

Evidence (Audio Visual and Audio Linking) Act

1997

Act No. 4/1997

TABLE OF PROVISIONS

Section Page

1.	Purpose	1
2.	Commencement	1
3.	New Part 2A inserted in Evidence Act 1958	2
PART IIA—USE OF AUDIO VISUAL AND AUDIO LINKS	2
Division 1—Definitions	2

42C. Definitions 2

Division 2—Persons other than Accused 4

42D.	Application of Division	4
42E.	Appearance, etc. by audio visual link or audio link	4
42F.	Special provisions applicable to certain proceedings
involving children	5
42G.	Technical requirements	7
42H.	Costs	9
42I.	Certain other laws not affected	9

Division 3—Appearance by Accused Persons 9

42J.	Application of Division	9
42K.	Appearance of adult accused person before court	10
42L.	Making of direction for physical appearance in section
42K(1) proceedings	11
42M.	Making of direction for audio visual appearance in
section 42K(2) proceedings	13
42N.	Application for making of direction under section
42K(4)	15
42O.	Appearance before court of an accused person who is a
child	16

42P.	Making of direction for audio visual appearance by child 16
42Q.	Practice directions 18
42R.	Requirements for audio visual appearance by accused 19
42S.	Protection of communication between accused and legal
representative 20
42T.	Application of Listening Devices Act 1969 20

i

Section Page

Division 4—General 21

42U.	Putting documents to a remote person	21
42V.	Direction to jury in criminal trial	22
42W.	Application of laws about witnesses, etc.	22
42X.	Arraignment	22
42Y.	Administration of oaths and affirmations	23

4.	Evidence Act 1958—other amendments	23
5.	Amendment of Supreme Court Act 1986	23
6.	Amendment of County Court Act 1958	24
7.	New section 141 inserted in Magistrates' Court Act 1989	24

141. Rules of court 25

8.	Consequential amendments to Magistrates' Court Act 1989	25
9.	New sections 280B and 280C inserted in Children and Young
Persons Act 1989	26

280B. Rules of court 26

280C. Disallowance 27

10.	Children and Young Persons Act 1989—other amendments	27
11.	Construction of references to bringing person before court	28
12.	Transitional provisions	28

═══════════════

NOTES 29

ii

Victoria

No. 4 of 1997

Evidence (Audio Visual and Audio

Linking) Act 1997†

[Assented to 22 April 1997]

The Parliament of Victoria enacts as follows:

1. Purpose

The purpose of this Act is to facilitate appearance before, or the giving of evidence or making of submissions to, courts by audio visual or audio links.

2. Commencement

(1) Section 1 and this section come into operation on

the day on which this Act receives the Royal
Assent.

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Act No. 4/1997 s. 3

(2) Subject to sub-section (3), the remaining

provisions of this Act come into operation on a

day or days to be proclaimed.

(3) If a provision referred to in sub-section (2) does

not come into operation before 1 July 1998, it

comes into operation on that day.

3. New Part 2A inserted in Evidence Act 1958

No. 6246.

After Part II of the Evidence Act 1958 insert—	Reprinted to No. 48/1995.
'PART IIA—USE OF AUDIO VISUAL AND	Subsequently amended by

AUDIO LINKS No. 100/1995.

Division 1—Definitions

42C. Definitions

In this Part—
"accused person" includes a person taken

into custody for an offence and the defendant in a summary hearing or committal proceeding;

"appropriate persons" means persons that the court considers to be appropriate in the particular case;

"audio link" means facilities (including

telephone) that enable audio
communication between persons at
different places;

"audio visual link" means facilities

(including closed-circuit television) that enable audio and visual communication between persons at different places;

"child" means—

(a) in the case of a person who—

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(i) for an offence and is
required to be brought

has been taken into custody or

(ii)  is a party to a proceeding in the Children's Court; or

(iii) application made to, or

is the subject of an Children's Court—

a person who is a child within the
meaning of the Children and

Young Persons Act 1989; and

(b) sentencing order within the
meaning of the Children and

a person in respect of whom a force who is required to appear before the Children's Court under the terms of that order or in respect of a breach of that order or on an application for the variation or revocation of that order; and

(c)	a person who is the subject of an appeal to the Supreme Court or the County Court made under the Children and Young Persons Act 1989; and
(d)	in any other case—a person who is under the age of 17 years;

"court point" means the courtroom or other place where the court is sitting;

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"practice directions" means practice

directions, statements or notes issued
under section 42Q;

"remote point" means the place where—

(a)	the person appearing before the court or giving the evidence or making the submission; or
(b)	where Division 3 applies, the accused person—

is located;

"victim", in relation to an offence, means a person who, or body that, has suffered injury, loss or damage as a direct result of the offence.

Division 2—Persons other than Accused

42D. Application of Division

This Division applies to the appearance
before a court of, or the giving of evidence
or making of a submission to a court by, any
person in a legal proceeding, whether a party
to the proceeding or not, other than the
accused person in a proceeding to which

Division 3 applies.

42E. Appearance, etc. by audio visual link or

audio link

(1) Subject to section 42F and to any rules of

court, a court may, on its own initiative or on
the application of a party to the legal
proceeding, direct that a person may appear
before, or give evidence or make a
submission to, the court by audio visual link
or audio link from any place within or
outside

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Victoria, or outside Australia, that is outside the courtroom or other place where the court is sitting.

(2) A court must not make a direction under sub-

section (1) unless it is satisfied that the
technical requirements specified in section
42G are met, or can reasonably be met, in
the case of the particular link.

(3) The court may, at any time in the course of a proceeding, vary or revoke a direction under sub-section (1) either on its own initiative or on the application of a party to the

proceeding.

(4) Without limiting sub-section (3),

circumstances in which a court may vary or
revoke a direction under sub-section (1)
include the failure of the link to which the
direction relates.

(5) Each party to a proceeding may address the court in respect of the making, variation or revocation of a direction under sub-section (1).

42F. Special provisions applicable to certain proceedings involving children

(1) This section only applies with respect to a person who is a child and then only where—

(a)	the proceeding is an application to the Family Division of the Children's Court under the Children and Young Persons Act 1989 and the child is the subject of the application; or
(b)	the proceeding is an appeal under section 116 or 117 of the Children and Young Persons Act 1989 and the child

Evidence (Audio Visual and Audio Linking) Act 1997

Act No. 4/1997	s. 3
was the subject of the application made to, or order made by, the Children's Court.

(2) Unless the court otherwise directs under

section 42E(1), a child who is required to
appear, or be brought, before a court is
required to appear, or be brought, physically
before the court.

(3) A court must not make a direction under

section 42E(1) unless it is satisfied that the
making of the direction is—

(a) in the best interests of the child; and

(b) consistent with the interests of justice.

(4) In determining whether the making of a

direction under section 42E(1) is in the best

interests of a child, the court—

(a)	may have regard to the appropriateness of the direction in terms of the security and protection of the child; and
(b)	appearance before the court would

may consider whether physical distress to an unacceptable level; and

(c) must consider any wishes expressed by the child.

(5) In determining whether the making of a

direction under section 42E(1) relating to a
child is consistent with the interests of
justice, the court must take into
consideration the effect of the direction on

the child's ability—

(a) to comprehend the proceeding; and

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s. 3 Act No. 4/1997

(b) to communicate with his or her legal representative and give instructions, or express wishes, to that representative.

(6) A court must not make a direction under

section 42E(1) relating to a child unless it is
satisfied that the technical requirements
specified in section 42R(3) are met in the
case of the particular link and, for this
purpose, section 42R(3) has effect as if the
child were an accused person.

(7) A court must not make a direction under

section 42E(1) that a child appear before, or give evidence or make a submission to, the court by audio link.

(8) Section 42E has effect in relation to a child as if the child were a party to the proceeding.

42G. Technical requirements

(1) The technical requirements for an audio

visual link are as follows:

(a) both the court point and the remote point are equipped with facilities that—

(i)  enable all appropriate persons at the court point to see and hear the person appearing before the court or giving the evidence or making the submission; and

(ii)  enable all appropriate persons at the remote point to see and hear appropriate persons at the court point; and

(b) any requirements prescribed by rules of court for or with respect to—

(i) the form of audio visual link;

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Act No. 4/1997	s. 3
(ii)

the equipment, or class of link;

(iii) the layout of cameras;

(iv)  the standard, or speed, of transmission;

(v) the quality of communication;

(vi)  any other matter relating to the link;

(c) any requirements imposed by the presiding judge or magistrate.

(2) The technical requirements for an audio link are as follows:

(a) both the court point and the remote point are equipped with facilities that—

(i)  enable all appropriate persons at the court point to hear the person appearing before the court or

giving the evidence or making the submission; and
(ii)	the remote point to hear

enable all appropriate persons at point; and

(b) any requirements prescribed by rules of court for or with respect to—

(i) the form of audio link;

(ii)

the equipment, or class of link;

(iii)  the standard, or speed, of transmission;

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s. 3	Act No. 4/1997
(iv) the quality of communication;
(v) any other matter relating to the link; and

(c) any requirements imposed by the presiding judge or magistrate.

(3) Requirements imposed by the presiding

judge or magistrate under sub-section (1)(c)
or (2)(c) must not be inconsistent with any
provision made by this Part or any rules of

court.

42H. Costs

(1) The Governor in Council may make

regulations for or with respect to prescribing amounts payable to a court in respect of the costs of, and incidental to, the provision of an audio visual or audio link and ancillary equipment for the purposes of this Division.

(2) In the exercise of its discretion as to costs, a court has full power to determine by whom and to what extent the amounts referred to in

sub-section (1) are to be paid.

42I. Certain other laws not affected

(1) Nothing in this Division limits the

application of section 37B, 37C or 37D to a
proceeding.

(2) Nothing in section 37B, 37C or 37D limits

the application of this Division to a
proceeding.

Division 3—Appearance by Accused Persons

42J. Application of Division

This Division applies to the appearance before a court of an accused person in a

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Act No. 4/1997 s. 3

criminal proceeding including a proceeding
associated with, or ancillary to, or in
consequence of, the prosecution for the

offence1.

42K. Appearance of adult accused person before

court

(1) Unless the court otherwise directs, an

accused person, other than a child, being
held in custody who is required to appear, or

be brought, before a court—

(a)	in a proceeding with respect to bail not including a proceeding referred to in sub-section (3); or
(b)	having previously been remanded in custody, in a subsequent proceeding with respect to his or her remand in custody; or
(c)

on a status hearing or committal with a committal proceeding; or

(d)	on an application for the adjournment of a proceeding; or
(e)	for his or her arraignment on a day other than a day on which the trial is to take place—

is not required to appear, or be brought,
physically before the court but may appear

before it by audio visual link.

(2) Unless the court otherwise directs, an

accused person, other than a child, being
held in custody who is required to appear, or

be brought, before a court—

(a) on a committal proceeding; or

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s. 3 Act No. 4/1997

(b)	on an inquiry into his or her fitness to stand trial; or
(c)	on the trial (apart from the arraignment of the accused person) or hearing of the charge; or

(d) on a sentencing hearing; or

(e) on an appeal arising out of that trial or hearing—

is required to appear, or be brought,
physically before the court.

(3) An accused person, other than a child, who

has been taken into custody and who is
required to be brought before a bail justice or
the Magistrates' Court within a reasonable
time of being taken into custody to be dealt
with according to law is, if being brought
before the Magistrates' Court, required to be
brought physically before the court unless he
or she consents to appear before the court by
audio visual link.

(4) In any proceeding to which this Division applies (other than one referred to in sub- section (1), (2) or (3)), a court may, on its own initiative or on the application of a party

to the proceeding, direct that an accused
person, other than a child, appear before it by
audio visual link if it is satisfied that
appearance by audio visual link is consistent

with the interests of justice.

42L. Making of direction for physical

appearance in section 42K(1) proceedings

(1) A court may direct that an accused person

appear, or be brought, physically before it in
a proceeding in which, by virtue of section
42K(1), physical appearance would not

Evidence (Audio Visual and Audio Linking) Act 1997

Act No. 4/1997 s. 3

otherwise be required if it is satisfied, on an
application made in accordance with this

section, that—

(a)	physical appearance is required in the interests of justice; or
(b)	it is not reasonably practicable for the accused person to appear before the court by audio visual link.

(2) An application for a direction referred to in

sub-section (1) may be made by or on behalf
of the accused person or the prosecution at
any time up to 3 days before the day on
which the accused person is due to appear or
any shorter period before that day that is
fixed by the court because of the existence of
a good and sufficient reason.

(3) An application is made by filing with the

court a notice in the form (if any) prescribed by rules of court and stating the grounds on which it is made and serving a copy on any other party in accordance with any rules of court.

(4) An application is to be determined by the

court on the basis of the written application
and any written submissions on the
application filed with the court by any other
party without giving the applicant or any
other party an opportunity to be heard.

(5) With leave of the court, an application for a direction referred to in sub-section (1) may be made by or on behalf of the accused

person or the prosecution at any time in the
course of the proceeding to which the
direction being sought relates, irrespective of

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s. 3 Act No. 4/1997

whether an application by a party for such a direction has previously been refused by the court.

(6) Sub-sections (3) and (4) do not apply to an

application made in accordance with sub-
section (5).

(7) A court may also make a direction referred to in sub-section (1) on its own initiative at any time in the course of the proceeding to which the direction relates, irrespective of whether an application made in accordance

with this section has previously been refused
by it.

(8) The exercise of the power conferred on a

court to make a direction referred to in sub-
section (1) is subject to any practice
directions.

42M. Making of direction for audio visual

appearance in section 42K(2) proceedings

(1) A court may direct that an accused person

appear before it by audio visual link in a proceeding in which, by virtue of section 42K(2), physical appearance would
otherwise be required if it is satisfied, on an
application made in accordance with this

section, that—

(a)	appearance by audio visual link is consistent with the interests of justice; and
(b)	is reasonably practicable in the circumstances.

(2) Unless an application for the making of a direction referred to in sub-section (1) is made with the consent of all parties to the

proceeding, the court may only grant such an

Evidence (Audio Visual and Audio Linking) Act 1997

Act No. 4/1997 s. 3

application if satisfied that exceptional
circumstances exist.

(3) An application for a direction referred to in

sub-section (1) may be made by or on behalf
of the accused person or the prosecution at
any time up to 14 days before the day on
which the accused person is due to appear or
any shorter period before that day that is
fixed by the court because of the existence of
a good and sufficient reason.

(4) An application is made by filing with the

court a notice in the form (if any) prescribed by rules of court and stating the grounds on which it is made and serving a copy on any other party in accordance with any rules of court.

(5) With leave of the court, an application for a direction referred to in sub-section (1) may be made by or on behalf of the accused

person or the prosecution at any time in the
course of the proceeding to which the
direction being sought relates, irrespective of
whether an application by a party for such a
direction has previously been refused by the

court.

(6) Sub-section (4) does not apply to an

application made in accordance with sub-
section (5).

(7) A court may also make a direction referred to in sub-section (1) on its own initiative at any time in the course of the proceeding to which the direction relates, irrespective of whether an application made in accordance

with this section has previously been refused by it, if the court is satisfied that exceptional circumstances exist.

Evidence (Audio Visual and Audio Linking) Act 1997

s. 3 Act No. 4/1997

(8) Any victim of the offence which the accused

person is alleged to have committed may
address, or make a written submission to, the
court in opposition to the making of a
direction referred to in sub-section (1).

(9) The exercise of the power conferred on a

court to make a direction referred to in sub-
section (1) is subject to any practice
directions.

42N. Application for making of direction under

section 42K(4)

(1) An application for a direction referred to in

section 42K(4) may be made by or on behalf
of the accused person or the prosecution at
any time up to 14 days before the day on
which the accused person is due to appear or
any shorter period before that day that is
fixed by the court because of the existence of
a good and sufficient reason.

(2) An application is made by filing with the

court a notice in the form (if any) prescribed by rules of court and stating the grounds on which it is made and serving a copy on any other party in accordance with any rules of court.

(3) With leave of the court, an application for a direction referred to in section 42K(4) may be made by or on behalf of the accused

person or the prosecution at any time in the
course of the proceeding to which the
direction being sought relates, irrespective of
whether an application by a party for such a
direction has previously been refused by the
court.

Evidence (Audio Visual and Audio Linking) Act 1997

Act No. 4/1997 s. 3

(4) Sub-section (2) does not apply to an

application made in accordance with sub-
section (3).

(5) A court may also make a direction referred to in section 42K(4) on its own initiative at any time in the course of the proceeding to which the direction relates, irrespective of whether an application made in accordance

with this section has previously been refused
by it.

(6) The exercise of the power conferred on a

court to make a direction referred to in
section 42K(4) is subject to any practice
directions.

42O. Appearance before court of an accused person who is a child

Unless the court otherwise directs, an accused person who is—

(a) a child; and

(b) being held in custody; and

(c) required to appear, or be brought, before a court in a proceeding to which this Division applies—

is required to appear, or be brought,

physically before the court.

42P. Making of direction for audio visual

appearance by child

(1) A court may direct that a child referred to in section 42O appear before it by audio visual link if it is satisfied, on an application made in accordance with this section, that

appearance by audio visual link is—

Evidence (Audio Visual and Audio Linking) Act 1997

s. 3 Act No. 4/1997

(a)	consistent with the interests of justice; and
(b)	reasonably practicable in the circumstances.

(2) Unless an application for the making of a direction referred to in sub-section (1) is made with the consent of all parties to the

proceeding, the court may only grant such an
application if satisfied that exceptional

circumstances exist.

(3) An application for a direction referred to in

sub-section (1) may be made by or on behalf of the child or the prosecution at any time up to 14 days before the day on which the child is due to appear or any shorter period before that day that is fixed by the court because of the existence of a good and sufficient reason.

(4) An application is made by filing with the

court a notice in the form (if any) prescribed by rules of court and stating the grounds on which it is made and serving a copy on any other party in accordance with any rules of court.

(5) With leave of the court, an application for a direction referred to in sub-section (1) may be made by or on behalf of the child or the prosecution at any time in the course of the proceeding to which the direction being

sought relates, irrespective of whether an application by a party for such a direction has previously been refused by the court.

(6) Sub-section (4) does not apply to an

application made in accordance with sub-
section (5).

Evidence (Audio Visual and Audio Linking) Act 1997

Act No. 4/1997 s. 3

(7) A court may also make a direction referred to in sub-section (1) on its own initiative at any time in the course of the proceeding to which the direction relates, irrespective of whether an application made in accordance

with this section has previously been refused by it, if the court is satisfied that exceptional circumstances exist.

(8) In determining whether the making of a direction referred to in sub-section (1) is consistent with the interests of justice, the

court must take into consideration the effect

of the direction on the child's ability—

(a) to comprehend the proceeding; and

(b) to communicate with his or her legal representative and give instructions, or express wishes, to that representative.

(9) Any victim of the offence which the child is

alleged to have committed may address, or make a written submission to, the court in opposition to the making of a direction

referred to in sub-section (1)—

(a) on the trial (apart from the arraignment of the child) or hearing of the charge; or

(b) on a sentencing hearing.

(10) The exercise of the power conferred on a

court to make a direction referred to in sub-
section (1) is subject to any practice
directions.

42Q. Practice directions

(1) The senior judicial officer of a court may

from time to time issue practice directions, statements or notes relating to the exercise by

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s. 3 Act No. 4/1997

the court of its discretion in relation to an
application made in accordance with section

42L, 42M, 42N or 42P.

(2) In this section, "senior judicial officer"—

(a)	in relation to the Supreme Court, means the Chief Justice;
(b)	in relation to the County Court, means the Chief Judge;
(c)	in relation to the Magistrates' Court or the Children's Court, means the Chief Magistrate.

42R. Requirements for audio visual appearance

by accused

(1) An accused person appearing before a court by audio visual link must do so from a place at which the technical requirements

specified—

(a) in section 42G(1), as modified by sub- section (2) of this section; and

(b) in sub-section (3)—

are met.

(2) Section 42G(1)(a)(i) applies as if the

reference to the person appearing before the
court or giving the evidence or making the
submission included a reference to the
accused person entering a plea to a charge or
stating an intention to reserve their plea.

(3) Both the court point and the remote point

must be equipped with facilities that, in
accordance with any rules of court, enable
private communication to take place (at any
time during the hearing or any adjournment
of the hearing or at any time on the day of a
hearing shortly before or after the hearing)

Evidence (Audio Visual and Audio Linking) Act 1997

Act No. 4/1997 s. 3

between the accused person and any legal practitioner at the court point representing him or her in the proceeding and documents

to be transmitted between both points by

those persons.

42S. Protection of communication between

accused and legal representative

Without limiting any other protection applying to it, a communication by audio link or audio visual link, or a document transmitted, between an accused person and his or her legal representative in accordance with this Part is as confidential and as inadmissible in any proceeding as it would be if the communication took place or the document was produced while they were in each other's presence.

42T. Application of Listening Devices Act 1969

The Listening Devices Act 1969 applies to a communication by audio link or audio visual link, or a document transmitted, between an accused person and his or her legal

representative in accordance with this Part as

if—

(a)	the communication were a private conversation within the meaning of that Act to which the parties were the accused person and his or her legal representative; and
(b)	any data, text or visual images in the transmitted document were words spoken to or by a person in a private conversation within the meaning of that

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s. 3	Act No. 4/1997
Act to which the parties were the accused person and his or her legal representative; and

(c)	references in that Act to the use of a listening device to overhear, record, monitor or listen to a private
conversation included, in relation to a transmitted document, references to reading the document.

Division 4—General

42U. Putting documents to a remote person

(1) If in the course of the examination of a

person by audio visual link or audio link it is
necessary to put a document to him or her,
the presiding judge or magistrate may permit

the document to be put to the person—

(a)	if the document is at the court point, by transmitting a copy of it to the remote point by any means and the copy so transmitted being then put to the person; or
(b)	if the document is at the remote point, by putting it to the person and then transmitting a copy of it to the court point by any means.

(2) A document put to a person in accordance

with sub-section (1) is admissible in
evidence without proof that the transmitted
copy is a true copy of the relevant document.

(3) Nothing in this section prevents a document or exhibit being shown to a person over the audio visual link itself.

Evidence (Audio Visual and Audio Linking) Act 1997

Act No. 4/1997 s. 3

42V. Direction to jury in criminal trial

If a court makes a direction under section 42E(1) in a criminal trial or an accused person appears before a court in a criminal trial by audio visual link in accordance with Division 3, the judge must warn the jury not to draw any inference adverse to the accused person or give any evidence given by the witness or the accused person any greater or lesser weight because of the making of the direction or the appearance by audio visual link.

42W. Application of laws about witnesses, etc.

(1) The remote point must be taken to be part of

within the meaning of the Court Security

the court point, and to be court premises point for the purpose of appearing before, or giving evidence or making a submission to, the court in accordance with Division 2 or 3.

(2) Sub-section (1) has effect, for example, for

the purposes of laws relating to evidence, procedure, contempt of court and perjury.

(3) Sub-section (1) also has the effect that any

offence committed at the remote point must
be taken to have been committed at the court
point for the purposes of the laws in force in
Victoria.

42X. Arraignment

An accused person who appears before a court for arraignment by audio visual link in accordance with Division 3 must be taken for all purposes to be at the bar of the court.

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s. 4 Act No. 4/1997

42Y. Administration of oaths and affirmations

An oath to be sworn or affirmation to be made by a witness who is to give evidence by audio visual link or audio link may be administered either—

(a)	by means of the audio visual link or audio link, in as nearly as practicable the same way as if the witness were to give evidence at the court point; or
(b)	at the direction of, and on behalf of, the court at the remote point by a person authorised by the court.'.

4. Evidence Act 1958—other amendments

(1) In section 12 of the Evidence Act 1958, after

"brought before" insert ", or be brought to another
place specified in the order where facilities exist
to enable the person (by audio or audio visual link
within the meaning of Part IIA) to appear before,
".

(2) In the Second Schedule to the Evidence Act 1958,

after "holden]" insert "[or be brought to [insert
place where facilities exist to enable the person to
appear by audio or audio visual link within the
meaning of Part IIA of that Act before that court
at that place]]".

5. Amendment of Supreme Court Act 1986

No. 110/1986.

Reprinted to	In section 25(1) of the Supreme Court Act 1986,
No. 43/1991.	after paragraph (ea) insert—
Subsequently
amended by	"(eb) requirements for the purposes of Part IIA of
Nos 124/1993,
18/1994,	the Evidence Act 1958 for or with respect
45/1994,	to—
52/1994,
109/1994,	(i) the form of audio visual or audio link;
9/1995, 22/1995 and 41/1995.

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Act No. 4/1997 s. 6

(ii)  the equipment, or class of equipment, used to establish the link;

(iii) the layout of cameras;
(iv) the standard, or speed, of transmission;
(v) the quality of communication;
(vi) any other matter relating to the link;

(ec) applications to the Court under Division 2 or 3 of Part IIA of the Evidence Act 1958;".

6. Amendment of County Court Act 1958

No. 6230.

In section 78(1) of the County Court Act 1958,	Reprinted to
after paragraph (he) insert—	No. 43/1991. Subsequently
"(hf) requirements for the purposes of Part IIA of the Evidence Act 1958 for or with respect	amended by Nos 18/1994,
43/1994,
to—	109/1994, 9/1995 and

(i) the form of audio visual or audio link; 22/1995.

(ii)  the equipment, or class of equipment, used to establish the link;

(iii) the layout of cameras;
(iv) the standard, or speed, of transmission;
(v) the quality of communication;
(vi) any other matter relating to the link;

(hg) applications to the court under Division 2 or 3 of Part IIA of the Evidence Act 1958;".

7. New section 141 inserted in Magistrates' Court Act 1989

No. 51/1989.

After section 140 of the Magistrates' Court Act	Reprinted to
1989 insert—	No. 99/1995.

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s. 8 Act No. 4/1997

"141. Rules of court

The Chief Magistrate together with 2 or more Deputy Chief Magistrates may jointly make rules of court for or with respect to—

(a) requirements for the purposes of Part IIA of the Evidence Act 1958 for or with respect to—

(i)  the form of audio visual or audio link;

(ii)

the equipment, or class of link;

(iii) the layout of cameras;

(iv)  the standard, or speed, of transmission;

(v) the quality of communication;

(vi)  any other matter relating to the link;

(b)	applications to the Court under Division 2 or 3 of Part IIA of the Evidence Act 1958;
(c)	any matter relating to the practice and procedure of the Court under Part IIA of the Evidence Act 1958.".

8. Consequential amendments to Magistrates' Court Act 1989

(1) In section 82(2) of the Magistrates' Court Act

1989, for "to another place specified in the warrant where facilities exist to enable the defendant to appear before the Court by means of
closed-circuit television" substitute ", if the
defendant consents to appear before the Court by
audio visual link within the meaning of Part IIA of

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Act No. 4/1997 s. 9

the Evidence Act 1958, to another place specified
in the warrant where facilities exist to enable the
defendant to so appear".

(2) In section 128(5) of the Magistrates' Court Act

1989, after "brought before" insert ", or be
brought to another place specified in the order
where facilities exist to enable the defendant (by
audio visual link within the meaning of Part IIA of
the Evidence Act 1958) to appear before,".

(3) In section 140(1) of the Magistrates' Court Act 1989, paragraph (g) is repealed.

9. New sections 280B and 280C inserted in Children and Young Persons Act 1989

After section 280A of the Children and Young

Persons Act 1989 insert—

"280B. Rules of court

The Chief Magistrate and the Children's rules of court for or with respect to—

(a) requirements for the purposes of Part IIA of the Evidence Act 1958 for or with respect to—

(i)  the form of audio visual or audio link;

(ii)

the equipment, or class of link;

(iii) the layout of cameras;

(iv)  the standard, or speed, of transmission;

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s. 10	Act No. 4/1997
(v) the quality of communication;
(vi) any other matter relating to the link;

(b)	applications to the Court under Division 2 or 3 of Part IIA of the Evidence Act 1958;
(c)	any matter relating to the practice and procedure of the Court under Part IIA of the Evidence Act 1958.".

280C. Disallowance

The power of the Chief Magistrate and the Children's Court Senior Magistrate to jointly make rules of court, whether that power is conferred by this or any other Act, is subject to the rules being disallowed by a House of the Parliament in accordance with section 23 of the Subordinate Legislation Act 1994.".

10. Children and Young Persons Act 1989—other amendments

(1) In section 25(4) of the Children and Young

Persons Act 1989, after "brought before" insert ", or be brought to another place specified in the order where facilities exist to enable the child (by
audio visual link within the meaning of Part IIA of
the Evidence Act 1958) to appear before, ".

(2) In section 25(5A) of the Children and Young Persons Act 1989, after "Court" insert "or to another place".

(3) In section 258(1)(a) of the Children and Young Persons Act 1989, after "brought before" insert ", or be brought to another place specified in the order where facilities exist to enable the person (by

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audio or audio visual link within the meaning of before, ".

11.  Construction of references to bringing person before court

A reference in any Act or in any subordinate instrument within the meaning of the Interpretation of Legislation Act 1984 to a person appearing before, or being brought before, a court includes a reference to a person appearing before, or being brought to a place where facilities exist to enable a person to appear before, the court by audio or audio visual link within the meaning of Part IIA of the Evidence Act 1958 in accordance with Division 2 or 3 of that Part.

12. Transitional provisions

(1) An amendment made by a provision of this Act to the Evidence Act 1958, the Supreme Court Act 1986, the County Court Act 1958, the

Magistrates' Court Act 1989 or the Children and Young Persons Act 1989 applies to a proceeding that is commenced to be heard on or after the twenty-first day after the commencement of that amendment, irrespective of when the proceeding was commenced or when any offence to which the proceeding relates is alleged to have been committed.

(2) For the purposes of sub-section (1) in its

application to criminal proceedings—

(a)	a trial is commenced to be heard on arraignment of the accused person; and
(b)	a hearing of a charge for an offence is commenced to be heard on the taking of a formal plea from the accused person.

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Evidence (Audio Visual and Audio Linking) Act 1997

Notes Act No. 4/1997

NOTES

†

Minister's second reading speech—

Legislative Assembly: 5 December 1996

Legislative Council: 2 April 1997

The long title for the Bill for this Act was "to amend the Evidence Act 1958, the Supreme Court Act 1986, the County Court Act 1958, the Magistrates' Court Act 1989 and the Children and Young Persons Act 1989 with respect to appearance before, or the giving of evidence or

making of submissions to, courts by audio visual or audio links and for

other purposes."

1 Examples of proceedings, apart from the trial or hearing of the charge, to
which Division 3 applies are proceedings with respect to bail or the remand
of the accused person in custody, committal proceedings, directions hearings
under section 5 of the Crimes (Criminal Trials) Act 1993, proceedings
under the Crimes (Confiscation of Profits) Act 1986 and proceedings under
Division 1 or 2 of Part 4 of the Sentencing Act 1991.