Evidence (Miscellaneous Provisions) Amendment Act 2011 (ACT)

Case

Evidence (Miscellaneous Provisions) Amendment Act 2011

A2011-29

Contents

Page

  1. Name of Act  2

  2. Commencement  2

  3. Legislation amended  2

  4. Notes


    New section 3 (2) and (3)  2

  5. Definitions—pt 2


    Section 5, definition of prescribed witness  2

  6. Section 5, definition of proceeding  3

  7. Section 6  3

  8. Section 7  3

  9. Sections 8 to 15  4

  10. Application—div 3.2


    Section 19, new note  7

  11. Territory courts may take evidence and submissions from place other than participating State


    Section 32 (4)  7

  12. Part 4 heading  8

  13. Definitions—pt 4


    Section 37, definition of serious violent offence, paragraph (a) (xvii)        8

  14. Section 37, definition of similar act witness, paragraph (b)  8

  15. Section 38 heading  8

  16. Meaning of relevant person—div 4.2


    Section 38B (3)  9

  17. Accused may be screened from witness in court


    New section 38C (1A)  9

  18. Examination of witness by self-represented accused person—procedure


    New section 38D (1A)  9

  19. Section 38D (4) (b)  9

  20. Section 38D (5), notes 1 and 2  9

  21. Section 38E heading  10

  22. New section 38E (1A)  10

  23. Sexual and violent offence proceeding—evidence to be given in closed court


    New section 39 (1A)  10

  24. Section 39 (5)  10

  25. Sexual offence proceeding—prohibition of publication of complainant’s identity


    Section 40 (1) (d)  11

  26. New section 40AA  11

  27. Meaning of sexual offence proceeding—div 4.2A


    Section 40B (1) (c) to (f)  11

  28. Meaning of violent offence proceeding—div 4.2A


    Section 40C (1) (c) to (f)  12

  29. New section 40NA  12

  30. Meaning of sexual offence proceeding—div 4.2B


    Section 40O (1) (c) to (f)  12

  31. Meaning of witness—div 4.2B


    New section 40P (1A)  13

  32. Who may be present at pre-trial hearing


    Section 40R (2) (a)  13

  33. Witness may be required to attend hearing


    Section 40T (4)  13

  34. Division 4.3 heading  13

  35. New section 40X  14

  36. Section 41 heading  14

  37. Meaning of violent offence proceeding—div 4.3


    Section 41A (1) (c) to (f)  14

  38. New section 41B  15

  39. Section 42 (1)  15

  40. Section 42 (1) (c) (i)  15

  41. Section 42 (2)  15

  42. Section 43  16

  43. Section 43 (3) (b) (i) and (ii)  16

  44. Section 43 (4) and (5)  16

  45. Section 44  17

  46. Section 44 (2) (a) and (d)  17

  47. Section 44 (3)  17

  48. Section 44 (3)  17

  49. Section 44 (5)  17

  50. Section 45  18

  51. Section 46  18

  52. Failure to comply with div 4.3


    Section 47 (2)  18

  53. Section 48 heading  19

  54. Decision to give leave under s 51


    Section 53 (5)  19

  55. Definitions—div 4.5


    Section 54, new definitions  19

  56. Section 55 heading  19

  57. Section 55 (4), example heading  20

  58. General immunity for protected confidences


    Section 58  20

  59. Preliminary examination of protected confidence evidence


    Section 61 (2) (b)  20

  60. Section 61 (5) (b)  20

  61. Giving of leave to disclose protected confidence


    Section 62 (1)  20

  62. Section 62 (3) (a)  21

  63. Section 62 (5)  21

  64. No protected confidence immunity for medical information


    Section 65 (1) (b)  21

  65. Division 4.6 heading, note  22

  66. Section 68 heading  22

  67. Comments about lack of, or delays in making, complaint


    Section 71 (2), note  22

  68. Divisions 4.7 and 4.8  22

  69. Evidence in any proceedings


    Part 4A  22

  70. Part 5 heading  23

  71. Parts 6 and 7  23

  72. Dictionary, note 2  34

  73. Dictionary, note 2  34

  74. Dictionary, new definitions  34

  75. Dictionary, definition of complainant, paragraph (d)  35

  76. Dictionary, definition of criminal proceeding  35

  77. Dictionary, new definitions  35

  78. Dictionary, definition of family objection  35

  79. Dictionary, new definition of give evidence in a proceeding by audiovisual link  36

  80. Dictionary, definition of less serious violent offence  36

  81. Dictionary, definition of prescribed witness  36

  82. Dictionary, definition of proceeding  36

  83. Dictionary, definition of serious violent offence  37

  84. Dictionary, definition of sexual offence  37

  85. Dictionary, definition of sexual offence proceeding, paragraph (d)         37

  86. Dictionary, definition of similar act witness  38

  87. Dictionary, definition of violent offence  38

  88. Dictionary, definition of violent offence proceeding, paragraph (c)         38

  89. Dictionary, definition of witness with a disability  39

Evidence (Miscellaneous Provisions) Amendment Act 2011

A2011-29

An Act to amend the Evidence (Miscellaneous Provisions) Act 1991

The Legislative Assembly for the Australian Capital Territory enacts as follows:

  1. Name of Act

    This Act is the Evidence (Miscellaneous Provisions) Amendment Act 2011.

  2. Commencement

    This Act commences on the commencement of the Evidence Act 2011, section 3.

    Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

  3. Legislation amended

    This Act amends the Evidence (Miscellaneous Provisions) Act 1991.

  4. Notes
    New section 3 (2) and (3)

    after the note, insert

    (2)In this section:

    note includes material enclosed in brackets in section headings.

    NoteSome sections of this Act contain bracketed notes under their headings (eg EA s 72) drawing attention to equivalent or comparable (though not necessarily identical) provisions of the Evidence Act 1971 (repealed).

    (3)Subsection (2), the notes mentioned in subsection (2), and this subsection expire 1 year after the day this section commences.

  5. Definitions—pt 2
    Section 5, definition of prescribed witness

    omit

  6. Section 5, definition of proceeding

    omit

    in relation

  7. Section 6

    substitute

  8. Meaning of give evidence in a proceeding by audiovisual link—pt 2

    In this part:

    give evidence in a proceeding by audiovisual link means to give evidence in the proceeding by audiovisual link from an external place which is linked to the courtroom by an audiovisual link.

  9. Sworn or unsworn evidence

    For this part, it does not matter whether evidence is to be, or is being, given on oath or otherwise.

  10. Section 7

    omit everything before paragraph (a), substitute

  11. Proceedings to which pt 2 applies

    This part applies to—

  12. Sections 8 to 15

    substitute

  13. Child giving evidence by audiovisual link

    (1)This section applies if—

    (a)a child is to give evidence in a proceeding; and

    (b)the proceeding is to be heard in a courtroom; and

    (c)the courtroom and an external place are linked by an audiovisual link.

    (2)The child’s evidence must be given by audiovisual link unless the court otherwise orders.

    (3)However, the evidence of a child who is an accused person in a proceeding is not to be given by audiovisual link.

    (4)The court may make an order under subsection (2) only if satisfied that—

    (a)the child prefers to give evidence in the courtroom; or

    (b)if the order is not made—

    (i)the proceeding may be unreasonably delayed; or

    (ii)there is a substantial risk that the court will not be able to ensure that the proceeding is conducted fairly.

    (5)While the child is at the external place to give evidence, the place is taken to be part of the courtroom.

  14. Representation of child

    (1)This section applies if—

    (a)a child is to give evidence in a proceeding by audiovisual link; and

    (b)the child is not separately represented by someone else; and

    (c)the court considers that the child should be separately represented by someone else.

    (2)The court may—

    (a)order that the child be separately represented by someone else; and

    (b)make any other order it considers necessary to arrange the separate representation.

  15. Consequential orders—pt 2

    (1)This section applies if a child is to give evidence in a proceeding by audiovisual link.

    (2)The court may make any order it considers appropriate––

    (a)to ensure that the proceeding is conducted fairly; or

    (b)to allow the child to identify a person or thing; or

    (c)to allow the child to take part in a view or to watch a demonstration or experiment; or

    (d)to allow part of the proceeding to be heard somewhere other than in the courtroom.

    (3)The court may make any other order it considers appropriate, including, for example, an order stating––

    (a)who may be with the child at the external place; or

    (b)who must not be with the child at the external place; or

    (c)who, in the courtroom, is to be able, or must not be able, to be heard, or seen and heard, by the child and people in the external place with the child; or

    (d)who, in the courtroom, is to be able to see and hear the child and anyone else in the external place with the child; or

    (e)how the audiovisual link is to operate.

    NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

    (4)The court may order that a person be excluded from the external place while the child is giving evidence.

    (5)The court may direct that an order under this section apply only to a particular part of the proceeding.

  16. Making of orders—pt 2

    (1)The court may make an order under this part in a proceeding on its own initiative or on the application of—

    (a)a party to the proceeding; or

    (b)the child or a person acting on the child’s behalf; or

    (c)the child’s parent or guardian.

    (2)For the purpose of making an order under this part, the court is not bound by the rules of evidence and may inform itself as it considers appropriate.

  17. Jury warning about inferences from child giving evidence by audiovisual link

    (1)This section applies if—

    (a)a child gives evidence in a proceeding by audiovisual link; and

    (b)the proceeding is before a jury.

    (2)The judge must warn the jury to the effect that the jury should not draw any inference against an accused person in the proceeding from the fact that the child’s evidence is given by audiovisual link.

  18. Failure to comply with pt 2

    (1)If the evidence of a child is not given in accordance with this part, the evidence is not inadmissible for that reason only.

    (2)Failure to comply with this part in relation to a proceeding does not affect the validity of the proceeding.

  19. Child turns 18 during proceeding

    If a child is to give evidence in a proceeding and the child turns 18 years old before the proceeding is finally disposed of, this part continues to apply to the person for the proceeding.

  20. Application—div 3.2
    Section 19, new note

    insert

    Note Proceeding—see the Legislation Act, dictionary, pt 1.

  21. Territory courts may take evidence and submissions from place other than participating State
    Section 32 (4)

    omit

    for all purposes

  22. Part 4 heading

    substitute

Part 4Evidence in sexual and violent offence proceedings

  1. Definitions—pt 4
    Section 37, definition of serious violent offence, paragraph (a) (xvii)

    omit

    and

    substitute

    or

  2. Section 37, definition of similar act witness, paragraph (b)

    omit

    Evidence Act 1995 (Cwlth)

    substitute

    Evidence Act 2011

  3. Section 38 heading

    substitute

  4. Meaning of complainant and sexual offence proceeding—div 4.2

  5. Meaning of relevant person—div 4.2
    Section 38B (3)

    omit

    , but are not limited to,

  6. Accused may be screened from witness in court
    New section 38C (1A)

    insert

    (1A)For subsection (1) (c) (ii), the court is not bound by the rules of evidence and may inform itself as it considers appropriate.

  7. Examination of witness by self-represented accused person—procedure
    New section 38D (1A)

    insert

    (1A)For subsection (1) (c) (ii), the court is not bound by the rules of evidence and may inform itself as it considers appropriate.

  8. Section 38D (4) (b)

    omit

    adduce

    substitute

    present

  9. Section 38D (5), notes 1 and 2

    substitute

    Note If the court considers a question to be unduly annoying, harassing, intimidating etc, the court must disallow it or tell the witness that it need not be answered (see Evidence Act 2011, s 41 (1) (Improper questions)).

  10. Section 38E heading

    substitute

38ESexual and violent offence proceeding—witness may have support person in court

  1. New section 38E (1A)

    insert

    (1A)For subsection (1) (c) (ii), the court is not bound by the rules of evidence and may inform itself as it considers appropriate.

  2. Sexual and violent offence proceeding—evidence to be given in closed court
    New section 39 (1A)

    insert

    (1A)For subsection (1) (c) (ii), the court is not bound by the rules of evidence and may inform itself as it considers appropriate.

  3. Section 39 (5)

    omit

    from places other than courtrooms

    substitute

    by audiovisual link

  4. Sexual offence proceeding—prohibition of publication of complainant’s identity
    Section 40 (1) (d)

    omit

    inferred

    substitute

    worked out

  5. New section 40AA

    insert

40AAMeaning of sexual offence and violent offence—div 4.2A

(1)For this division, a sexual offence includes an offence under the Domestic Violence and Protection Orders Act 2008, section 90 (Offence for contravention of protection order) in relation to another sexual offence.

(2)For this division, a violent offence includes an offence under the Domestic Violence and Protection Orders Act 2008, section 90 (Offence for contravention of protection order) in relation to another violent offence.

  1. Meaning of sexual offence proceeding—div 4.2A
    Section 40B (1) (c) to (f)

    substitute

    (c)a proceeding for contravening a protection order under the Domestic Violence and Protection Orders Act 2008 in relation to a sexual offence; or

    (d)an appeal arising out of a proceeding mentioned in paragraphs (a) to (c).

  2. Meaning of violent offence proceeding—div 4.2A
    Section 40C (1) (c) to (f)

    substitute

    (c)a proceeding for contravening a protection order under the Domestic Violence and Protection Orders Act 2008 in relation to a violent offence; or

    (d)an appeal arising out of a proceeding mentioned in paragraphs (a) to (c).

  3. New section 40NA

    insert

40NAMeaning of sexual offence—div 4.2B

For this division, a sexual offence includes an offence under the Domestic Violence and Protection Orders Act 2008, section 90 (Offence for contravention of protection order) in relation to another sexual offence.

  1. Meaning of sexual offence proceeding—div 4.2B
    Section 40O (1) (c) to (f)

    substitute

    (c)a proceeding for contravening a protection order under the Domestic Violence and Protection Orders Act 2008 in relation to a sexual offence; or

    (d)an appeal arising out of a proceeding mentioned in paragraphs (a) to (c).

  2. Meaning of witness—div 4.2B
    New section 40P (1A)

    insert

    (1A)For subsection (1) (c), the court is not bound by the rules of evidence and may inform itself as it considers appropriate.

  3. Who may be present at pre-trial hearing
    Section 40R (2) (a)

    omit

    81C

    substitute

    101

  4. Witness may be required to attend hearing
    Section 40T (4)

    omit

    from places other than courtrooms

    substitute

    by audiovisual link

  5. Division 4.3 heading

    substitute

Division 4.3               Sexual and violent offence proceedings—giving evidence by audiovisual link

  1. New section 40X

    in division 4.3, insert

40XDefinitions—div 4.3

In this division:

give evidence in a proceeding by audiovisual link means to give evidence in the proceeding by audiovisual link from an external place which is linked to the courtroom by an audiovisual link.

proceeding means a proceeding to which this division applies.

  1. Section 41 heading

    substitute

  2. Meaning of complainant and sexual offence proceeding—div 4.3

  3. Meaning of violent offence proceeding—div 4.3
    Section 41A (1) (c) to (f)

    substitute

    (c)a proceeding for contravening a protection order under the Domestic Violence and Protection Orders Act 2008 in relation to a violent offence; or

    (d)an appeal arising out of a proceeding mentioned in paragraphs (a) to (c).

  4. New section 41B

    insert

41BMeaning of sexual offence and violent offence—div 4.3

(1)For this division, a sexual offence includes an offence under the Domestic Violence and Protection Orders Act 2008, section 90 (Offence for contravention of protection order) in relation to another sexual offence.

(2)For this division, a violent offence includes an offence under the Domestic Violence and Protection Orders Act 2008, section 90 (Offence for contravention of protection order) in relation to another violent offence.

  1. Section 42 (1)

    omit everything before paragraph (a), substitute

  2. Proceedings to which div 4.3 applies

    (1)This division applies to the following proceedings:

  3. Section 42 (1) (c) (i)

    substitute

    (i)the complainant or similar act witness (the witness) is a relevant person in relation to the accused person; or

  4. Section 42 (2)

    substitute

    (2)For this division, it does not matter whether evidence is to be, or is being, given on oath or otherwise.

    (3)In this section:

    relevant person—see section 38B (1).

  5. Section 43

    omit everything before subsection (3), substitute

  6. Complainant or similar act witness giving evidence by audiovisual link

    (1)This section applies if—

    (a)a complainant or similar act witness is to give evidence in a proceeding; and

    (b)the proceeding is to be heard in a courtroom; and

    (c)the courtroom and an external place are linked by an audiovisual link.

    (2)The complainant’s or similar act witness’s evidence must be given by audiovisual link unless the court otherwise orders.

  7. Section 43 (3) (b) (i) and (ii)

    omit

    sexual or violent offence

  8. Section 43 (4) and (5)

    omit

    other place

    substitute

    external place

  9. Section 44

    omit everything before subsection (2), substitute

  10. Consequential orders—div 4.3

    (1)This section applies if a complainant or similar act witness is to give evidence in a proceeding by audiovisual link.

  11. Section 44 (2) (a) and (d)

    omit

    sexual or violent offence

  12. Section 44 (3)

    omit

    specifying

    substitute

    stating

  13. Section 44 (3)

    omit

    other place

    substitute

    external place

  14. Section 44 (5)

    omit

    sexual or violent offence

  15. Section 45

    omit everything before subsection (2), substitute

  16. Making of orders—div 4.3

    (1)The court may make an order under this division in a proceeding on its own initiative or on the application of—

    (a)a party to the proceeding; or

    (b)the complainant; or

    (c)a similar act witness.

  17. Section 46

    substitute

  18. Jury warning about inferences from complainant or similar act witness giving evidence by audiovisual link

    (1)This section applies if—

    (a)a complainant or similar act witness gives evidence in a proceeding by audiovisual link; and

    (b)the proceeding is before a jury.

    (2)The judge must warn the jury to the effect that the jury should not draw any inference against an accused person in the proceeding from the fact that the evidence of the complainant or similar act witness is given by audiovisual link.

  19. Failure to comply with div 4.3
    Section 47 (2)

    omit

    sexual or violent offence

  20. Section 48 heading

    substitute

  21. Meaning of complainant and sexual offence proceeding—div 4.4

  22. Decision to give leave under s 51
    Section 53 (5)

    substitute

    (5)In this section:

    proper matter for cross-examination about credit—evidence is a proper matter for cross-examination about credit  if the credibility rule under the Evidence Act 2011, section 102 does not apply to the evidence because of that Act, section 103 (Exception—cross‑examination as to credibility).

  23. Definitions—div 4.5
    Section 54, new definitions

    insert

    civil proceeding does not include a criminal proceeding.

    proceeding means a civil or criminal proceeding.

  24. Section 55 heading

    substitute

  25. Meaning of protected confidence—div 4.5

  26. Section 55 (4), example heading

    substitute

    Examples—third parties

  27. General immunity for protected confidences
    Section 58

    omit

    criminal

  28. Preliminary examination of protected confidence evidence
    Section 61 (2) (b)

    omit

    concerned

  29. Section 61 (5) (b)

    omit

    criminal

  30. Giving of leave to disclose protected confidence
    Section 62 (1)

    substitute

    (1)After conducting the preliminary examination of the protected confidence evidence, the court may give leave for the disclosure of the protected confidence only if satisfied that—

    (a)for a civil proceeding—the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence; or

    (b)for a criminal proceeding—the public interest in ensuring an accused person in the proceeding is given a fair trial outweighs the public interest in preserving the confidentiality of the protected confidence.

  31. Section 62 (3) (a)

    before

    the extent

    insert

    for a criminal proceeding—

  1. Section 62 (5)

    omit

    restrictions

    substitute

    conditions

  2. No protected confidence immunity for medical information
    Section 65 (1) (b)

    omit

    such an

    substitute

    the

  3. Division 4.6 heading, note

    substitute

    NoteThe Supreme Court Act 1933, s 68C (3) provides that in a criminal proceeding tried by a judge alone, if a territory law requires a warning or direction to be given, or a comment to be made, to a jury in the proceeding, the judge must take the warning, direction or comment into account in considering his or her verdict.

  4. Section 68 heading

    substitute

  5. Meaning of complainant and sexual offence proceeding—div 4.6

  6. Comments about lack of, or delays in making, complaint
    Section 71 (2), note

    omit

  7. Divisions 4.7 and 4.8

    omit

  8. Evidence in any proceedings
    Part 4A

    omit

  9. Part 5 heading

    substitute

Part 5Evidence in civil proceedings—other matters

  1. Parts 6 and 7

    substitute

Part 6Evidence in criminal proceedings—dangerously ill people

  1. Meaning of dangerously ill person—pt 6

    In this part:

    dangerously ill person means a person who is dangerously ill and is not likely to recover from the illness.

  2. Application—pt 6

    (EA s 72)

    This part applies if a court is satisfied that—

    (a)a dangerously ill person is or may be able to give evidence in a proceeding for an indictable offence or on behalf of a person who has been, or may be, charged with an indictable offence; and

    (b)because of the illness, the dangerously ill person is or may be unable to give evidence in the proceeding.

  3. Recording of evidence of dangerously ill person

    (1)The court may take the evidence of the dangerously ill person (including cross‑examination and re-examination) by audio or audiovisual recording.

    (2)The recording must include the following:

    (a)the date when, and the place where, the recording was made;

    (b)the times when the recording started and ended;

    (c)the times when any break in recording started and ended, and the reason for the break;

    (d)the name of each person present during any part of the recording;

    (e)for each person present during any part of the recording—the part when the person was present.

  4. Notice of evidence of dangerously ill person

    (EA s 72)

    (1)Before taking the evidence of the dangerously ill person, the court must give a notice that the court proposes to take the evidence and of the time and place where it will be taken—

    (a)to the person charged or who may be charged; and

    (b)if the evidence is evidence on behalf of the person charged and it is practicable to do so—to the DPP or a person authorised by the DPP.

    (2)A person given a notice under subsection (1) (the notified person) may—

    (a)be present while the evidence is being taken; and

    (b)cross-examine the person giving the evidence.

    (3)However, subsection (2) does not apply if this Act or another territory law prohibits the notified person from doing a thing mentioned in the subsection.

  5. Admissibility of recording of evidence of dangerously ill person

    (EA s 72)

    (1)This section applies if—

    (a)an audio or audiovisual recording of evidence by a dangerously ill person is made; and

    (b)in the proceeding for the offence to which the evidence in the recording relates, the court is satisfied that—

    (i)the dangerously ill person is dead, or is, because of illness, unable to attend the proceeding; and

    (ii)reasonable notice of the time and place fixed for the taking of the evidence was given in accordance with section 93 (1).

    (2)The audio or audiovisual recording of the evidence is admissible to the extent that the evidence would have been admissible at the proceeding if given orally.

Part 7Evidence in any proceedings—other matters

Division 7.1               Evidence of witnesses with disabilities or vulnerabilities

  1. Meaning of witness with a disability—div 7.1

    For this division, a witness with a disability is a person who gives evidence in a proceeding and has a mental or physical disability that affects the person’s ability to give evidence.

  2. Child or witness with disability may have support person in court

    (1)This section applies to any of the following people (a witness) giving evidence in a proceeding:

    (a)a child;

    (b)a witness with a disability.

    (2)The court must, on application by a party that intends to call a witness, order that, while the witness gives evidence, the witness have a person (a support person) in the court who is—

    (a)for a witness with a vision impairment—close enough to the witness for the court to be satisfied that the witness is aware of the person’s presence; or

    (b)for any other witness—close to the witness and within the witness’s sight.

    (3)The court may order that a witness have more than 1 support person if it considers it is in the interests of justice.

    (4)The support person must not—

    (a)speak for the witness during the proceeding; or

    (b)otherwise interfere in the proceeding.

    (5)Unless the court otherwise orders, the support person must not be, or be likely to be, a witness or party in the proceeding.

    (6)If the proceeding is a trial by jury, the court must tell the jury that—

    (a)a witness having a support person in the court while giving evidence is a usual practice; and

    (b)the jury must not draw any inference against the accused person, or give the evidence more or less weight, because the support person is present.

  3. Witness with vulnerability may give evidence in closed court

    (1)This section applies to a person (the witness) giving evidence in a proceeding if the court considers that the person has a vulnerability that affects the person’s ability to give evidence because of—

    (a)the circumstances of the proceeding; or

    (b)the person’s circumstances.

    Examples

    1     the person is likely to suffer severe emotional trauma because of the nature of the alleged offence

    2     the person is intimidated or distressed because of the person’s relationship to  the accused person

    NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

    (2)The court may order that the court be closed to the public while all or part of the witness’s evidence (including evidence under cross‑examination) is given.

    NoteThe accused is entitled to a fair and public hearing, but the court may exclude the press and public in certain circumstances (see Human Rights Act 2004, s 21 (2)).

    (3)In deciding whether to order that the court be closed to the public, the court must consider whether—

    (a)the witness wants to give evidence in open court; and

    (b)it is in the interests of justice that the witness give evidence in open court.

    (4)However, an order under this section does not stop the following people from being in court when the witness gives evidence:

    (a)a person nominated by the witness;

    (b)a person who attends the proceeding to prepare a news report of the proceeding and is authorised to attend for that purpose by the person’s employer.

    NotePublishing certain information in relation to sexual offence proceedings is an offence (see s 40).

    (5)In this section, a reference to a person giving evidence includes the person giving evidence by the playing of an audiovisual recording of the evidence at a hearing under division 4.2A (Sexual and violent offence proceedings—audiovisual recording of police interview admissible as evidence) or division 4.2B (Sexual offence proceedings—giving evidence at pre-trial hearing).

  4. Making of s 101 and s 102 orders—court not bound by rules of evidence

    For the purpose of making an order under section 101 or section 102, the court is not bound by the rules of evidence and may inform itself as it considers appropriate.

Division 7.2               Evidence in any proceedings—miscellaneous

  1. Proof of document under law of Commonwealth country

    (EA s 50 and 51)

    (1)This section applies if it is proved in a proceeding that a document is, under the law of a Commonwealth country, admissible in evidence in the courts in that country by the production of a copy of the document.

    Note 1Proceeding—see the Legislation Act, dictionary, pt 1.

    Note 2The Evidence Act 2011, s 48 and s 49 deal with other documents in foreign countries in proceedings in an ACT court.

    (2)Evidence of the document, or of an extract from the document, may be given in the proceeding by producing—

    (a)a copy of the document or an extract from the document that is proved to be an examined copy of the document or extract; or

    (b)a document (the copy document) that is or purports to be a copy of the document or extract if there is endorsed on or annexed to the copy document a certificate by the person having custody of the original document that the document is a true copy of the document or extract of which it is or purports to be a copy.

    (3)The production of a document that is or purports to be a certificate mentioned in subsection (2) (b) is evidence in a proceeding that the person by whom the certificate purports to be signed is the person who has custody of the original document or extract mentioned in the certificate without further proof of that fact.

    (4)This section does not apply to a document mentioned in subsection (1) unless—

    (a)the party who presents evidence of the contents of the document has, not less than 28 days (or any other period prescribed by regulation or by rules of court) before the day on which the evidence is presented, served on each other party a copy of the document proposed to be tendered; or

    (b)the court directs that it must apply.

    (5)In this section:

    court means an ACT court or evidence receiving entity.

Part 8Publication of evidence

  1. Application—pt 8

    This part applies to—

    (a)a proceeding in the Supreme Court; or

    (b)a proceeding in the Magistrates Court; or

    (c)an inquest or inquiry under the Coroners Act 1997.

  2. Prohibition of publication of evidence etc

    (1)This section applies if a court considers that—

    (a)the publication of evidence given, or intended to be given, in a proceeding is likely to prejudice the administration of justice; or

    (b)in the interests of the administration of justice the names of any of the following people should not be published:

    (i)a party to the proceeding;

    (ii)a witness, or intended witness, in the proceeding.

    (2)The court may, at any time during or after the hearing of the proceeding, make an order forbidding the publication of—

    (a)the evidence or a stated part of the evidence; or

    (b)a report of the evidence; or

    (c)the name of the party or witness.

    (3)The court may make an order under subsection (2) (a) or (b) subject to any stated condition or for any period the court considers appropriate.

    (4)If a court makes an order under subsection (2), the court may, if it considers it appropriate, direct that stated people, or everyone except stated people, remain outside the courtroom for a stated period.

    (5)For this section, the publication of a reference or allusion to a person is taken to be a publication of the person’s name if—

    (a)the reference or allusion discloses the person’s identity; or

    (b)the person’s identity might reasonably be worked out from the reference or allusion.

  3. Noncompliance with s 111 order

    A person commits an offence if the person does not comply with an order or direction under section 111.

    Maximum penalty:  50 penalty units, imprisonment for 6 months or both.

Part 9Miscellaneous

  1. Approved forms

    (1)The Minister may approve forms for this Act.

    (2)If the Minister approves a form for a particular purpose, the approved form must be used for the purpose.

    NoteFor other provisions about forms, see the Legislation Act, s 255.

    (3)An approved form is a notifiable instrument.

    NoteA notifiable instrument must be notified under the Legislation Act.

  2. Regulation-making power

    (1)The Executive may make regulations for this Act.

    NoteA regulation must be notified, and presented to the Legislative Assembly, under the Legislation Act.

    (2)A regulation may prescribe the amounts, or the way of working out amounts, payable to a territory court in relation to the cost of, or incidental to, the provision of an audiovisual link or audio link and ancillary equipment for part 3 (Use of audiovisual links and audio links).

    (3)In this section:

    audio link—see section 16 (Definitions—pt 3).

    territory court—see section 16 (Definitions—pt 3).

Part 11Transitional—Evidence (Miscellaneous Provisions) Amendment Act 2011

  1. Existing proceedings

    (1)The amendments to this Act made by the Evidence (Miscellaneous Provisions) Amendment Act 2011 do not apply to a proceeding in a court if the hearing of the proceeding has started before the commencement of that Act.

    (2)For subsection (1), the hearing of a proceeding has started if the court has begun to take oral or written evidence in the proceeding (other than in relation to bail or any other interlocutory matter).

    (3)In this section:

    court means an ACT court or evidence receiving entity.

  2. Protected confidences—div 4.5 proceedings

    (1)This section applies to a proceeding under division 4.5.

    (2)Division 4.5 applies to a protected confidence made before or after the commencement of the Evidence (Miscellaneous Provisions) Amendment Act 2011.

    (3)However, this section is subject to section 160.

  3. Transitional regulations

    (1)A regulation may prescribe transitional matters necessary or convenient to be prescribed because of the enactment of the Evidence (Miscellaneous Provisions) Amendment Act 2011.

    (2)A regulation may modify this part (including in relation to another territory law) to make provision in relation to anything that, in the Executive’s opinion, is not, or is not adequately or appropriately, dealt with in this part.

    (3)A regulation under subsection (2) has effect despite anything elsewhere in this Act or another territory law.

  4. Expiry—pt 11

    This part expires 2 years after the day it commences.

  5. Dictionary, note 2

    insert

    ·Commonwealth country

    ·DPP

    ·foreign country

    ·Governor-General

  6. Dictionary, note 2

    omit

    ·proceeding (for this Act, pt 3)

  7. Dictionary, new definitions

    insert

    ACT court—see the Evidence Act 2011, dictionary, part 1.

    civil proceeding, for division 4.5 (Protection of counselling communications)––see section 54.

  8. Dictionary, definition of complainant, paragraph (d)

    substitute

    (d)for division 4.3 (Sexual and violent offence proceedings—giving evidence by audiovisual link)––see section 41 (1); and

  9. Dictionary, definition of criminal proceeding

    substitute

    criminal proceeding—

    (a)for this Act generally—see the Court Procedure Rules 2006, dictionary; and

    (b)for division 4.5 (Protection of counselling communications)––see section 54.

  10. Dictionary, new definitions

    insert

    dangerously ill person, for part 6 (Evidence in criminal proceedings—dangerously ill people)—see section 90.

    evidence receiving entity means an entity other than an ACT court that is authorised under a law in force in the ACT, or by consent of parties, to receive evidence.

    external place, for a proceeding, means a place other than the courtroom where the proceeding is heard.

  11. Dictionary, definition of family objection

    omit

  12. Dictionary, new definition of give evidence in a proceeding by audiovisual link

    insert

    give evidence in a proceeding by audiovisual link—

    (a)for part 2 (Evidence of children)—see section 6; and

    (b)for division 4.3 (Sexual and violent offence proceedings—giving evidence by audiovisual link)—see section 40X.

  13. Dictionary, definition of less serious violent offence

    omit

    (Evidence in criminal proceedings)

    substitute

    (Evidence in sexual and violent offence proceedings)

  14. Dictionary, definition of prescribed witness

    omit

  15. Dictionary, definition of proceeding

    substitute

    proceeding—

    (a)for this Act generally—see the Legislation Act, dictionary, part 1; and

    (b)for part 2 (Evidence of children)—see section 5; and

    (c)for division 4.3 (Sexual and violent offence proceedings—giving evidence by audiovisual link)—see section 40X; and

    (d)for division 4.5 (Protection of counselling communications)––see section 54.

  16. Dictionary, definition of serious violent offence

    omit

    (Evidence in criminal proceedings)

    substitute

    (Evidence in sexual and violent offence proceedings)

  17. Dictionary, definition of sexual offence

    substitute

    sexual offence—

    (a)for part 4 (Evidence in sexual and violent offence proceedings) generally—see section 37; and

    (b)for division 4.2A (Sexual and violent offence proceedings—audiovisual recording of police interview admissible as evidence)—see section 40AA (1); and

    (c)for division 4.2B (Sexual offence proceedings—giving evidence at pre-trial hearing)—see section 40NA; and

    (d)for division 4.3 (Sexual and violent offence proceedings—giving evidence by audiovisual link)—see section 41B (1).

  18. Dictionary, definition of sexual offence proceeding, paragraph (d)

    substitute

    (d)for division 4.3 (Sexual and violent offence proceedings—giving evidence by audiovisual link)––see section 41 (2); and

  19. Dictionary, definition of similar act witness

    omit

    (Evidence in criminal proceedings)

    substitute

    (Evidence in sexual and violent offence proceedings)

  20. Dictionary, definition of violent offence

    substitute

    violent offence—

    (a)for part 4 (Evidence in sexual and violent offence proceedings) generally—see section 37; and

    (b)for division 4.2A (Sexual and violent offence proceedings—audiovisual recording of police interview admissible as evidence)—see section 40AA (2); and

    (c)for division 4.3 (Sexual and violent offence proceedings—giving evidence by audiovisual link)—see section 41B (2).

  21. Dictionary, definition of violent offence proceeding, paragraph (c)

    substitute

    (c)for division 4.3 (Sexual and violent offence proceedings—giving evidence by audiovisual link)––see section 41A.

  22. Dictionary, definition of witness with a disability

    substitute

    witness with a disability—

    (a)for part 4 (Evidence in sexual and violent offence proceedings)—see section 37; and

    (b)for division 7.1 (Evidence of witnesses with disabilities or vulnerabilities)—see section 100.

Endnotes

  1. Presentation speech

    Presentation speech made in the Legislative Assembly on 30 June 2011.

  2. Notification

    Notified under the Legislation Act on 31 August 2011.

  3. Republications of amended laws

    For the latest republication of amended laws, see certify that the above is a true copy of the Evidence (Miscellaneous Provisions) Amendment Bill 2011, which was passed by the Legislative Assembly on 18 August 2011.

    Clerk of the Legislative Assembly

    © Australian Capital Territory 2011

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