Evidence (Miscellaneous Provisions) Amendment Act 2019 (ACT)

Case

Evidence (Miscellaneous Provisions) Amendment Act 2019

A2019-41

Contents

Page

Part 1      Preliminary

1            Name of Act  2

2            Commencement  2

3            Legislation amended  2

Part 2Evidence (Miscellaneous Provisions) Act 1991

4            New chapters 1A and 1B  3

5            Meaning of proceeding—pt 4.1Section 37, definition of proceeding, paragraph (b)  11

6            Special requirements—particular proceedingsSection 43, new note  11

7           Dictionary, new definitions  11

8            Dictionary, definition of witness  12

Part 3Evidence (Miscellaneous Provisions) Regulation 2009

9            New part 1 heading  13

10          New section 2  13

11          New part 2  13

12          New part 3 heading  14

13          Prescribed person—Act, s 51 (1) and (3)New section 4 (1) (c)  14

14          New dictionary  15

Schedule 1 Consequential amendments  16

Part 1.1    Criminal Code 2002  16

Part 1.2    Evidence Act 2011  20

Evidence (Miscellaneous Provisions) Amendment Act 2019

A2019-41

An Act to amend the Evidence (Miscellaneous Provisions) Act 1991 and the Evidence (Miscellaneous Provisions) Regulation 2009, and for other purposes

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

Part 1Preliminary

  1. Name of Act

    This Act is the Evidence (Miscellaneous Provisions) Amendment Act 2019.

  2. Commencement

    This Act commences on a day fixed by the Minister by written notice.

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

    Note 2A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

    Note 3If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act, s 79).

  3. Legislation amended

    This Act amends the Evidence (Miscellaneous Provisions) Act 1991 and the Evidence (Miscellaneous Provisions) Regulation 2009.

    NoteThis Act also amends other legislation (see sch 1).

Part 2Evidence (Miscellaneous Provisions) Act 1991

  1. New chapters 1A and 1B

    insert

Chapter 1AGround rules hearings—criminal proceedings

4AADefinitions—ch 1A

In this chapter:

ground rules hearing means a hearing for a witness in a criminal proceeding, where the court—

(a)considers the communication, support or other needs of the witness; and

(b)decides how the proceeding must be conducted to fairly and effectively meet those needs.

witness, in a criminal proceeding, includes the accused person in the proceeding.

4ABDirection to hold ground rules hearing

(1)A court may, at any time, if satisfied that it is in the interests of justice, direct that a ground rules hearing be held for a witness in a criminal proceeding.

(2)However, if an intermediary is appointed for a witness in a criminal proceeding, the court must direct that a ground rules hearing be held for the witness.

(3)The court may make a direction—

(a)on its own initiative; or

(b)on the application of—

(i)the DPP; or

(ii)the witness; or

(iii)the accused person.

(4)An application may be made orally or in writing.

4ACGround rules hearings—time limits

(1)If a court directs that a ground rules hearing be held for a witness in a criminal proceeding, the ground rules hearing must be held before the witness gives evidence in the proceeding.

(2)The court may extend the time for holding a ground rules hearing if the court considers that it is in the interests of justice to do so.

4ADGround rules hearings—who must attend

(1)The following people must attend a ground rules hearing for a witness in a criminal proceeding:

(a)the DPP;

(b)the lawyer representing the accused person or, if the accused person is not represented by a lawyer in the proceeding, the accused person;

(c)any intermediary appointed for the witness.

(2)The witness is not required to attend a ground rules hearing.

(3)If an intermediary is appointed for the witness, the court may make an order that the witness not attend a ground rules hearing.

4AEGround rules hearings—intermediary’s report

If an intermediary is appointed for a witness before a ground rules hearing is held for the witness, the intermediary must—

(a)prepare a written report about the communication needs of the witness; and

(b)give the report to the court before the ground rules hearing.

4AFGround rules hearings—directions

(1)At a ground rules hearing for a witness in a criminal proceeding, the court may make any direction the court considers is in the interests of justice, including any of the following:

(a)a direction about how a witness may be questioned;

(b)a direction about how long a witness may be questioned;

(c)a direction about the questions that may or may not be asked of a witness;

(d)if there is more than 1 accused—a direction about the allocation among the accused of the topics about which a witness may be asked;

(e)a direction about the use of models, plans, body maps or other aids to help communicate a question or an answer;

(f)a direction about the use of a support animal by the witness;

(g)a direction that if a party intends to give evidence that contradicts or challenges the evidence of a witness or that otherwise discredits a witness, the party is not obliged to put that evidence in its entirety to the witness in cross-examination.

(2)If an intermediary’s report has been given to the court under section 4AE, the court must consider the matters mentioned in the report in making the direction.

Chapter 1BWitness intermediaries—criminal proceedings

4AGDefinitions

(1)In this Act:

intermediary means a person—

(a)on the intermediaries panel; or

(b)on a panel (however described) with functions substantially corresponding to the functions of the intermediaries panel, in the Commonwealth, a State, the United Kingdom or New Zealand.

NoteState includes the Northern Territory (see Legislation Act, dict, pt 1).

(2)In this chapter:

intermediaries administrator means the person prescribed by regulation as the intermediaries administrator.

witness, in a criminal proceeding, includes the defendant in the proceeding.

4AHPanel of witness intermediaries

The intermediaries administrator must establish and maintain a panel of people (the intermediaries panel) who have—

(a)either—

(i)a tertiary qualification in psychology, social work, speech pathology or occupational therapy; or

(ii)other qualifications, training, experience or skills prescribed by regulation; or

(b)qualifications, training, experience or skills suitable to exercise the functions mentioned in section 4AI.

4AIFunctions of witness intermediaries

(1)The functions of an intermediary appointed for a witness are to—

(a)prepare and provide reports about the witness’s communication needs as required; and

(b)at a hearing—

(i)communicate to the witness questions put to the witness, to the extent necessary for the witness to understand the questions; and

(ii)communicate to the person putting questions to the witness, the witness’s answers to the questions, to the extent necessary for the person to understand the answers; and

(iii)otherwise assist the court, and any lawyer appearing in the proceeding, to communicate with the witness.

(2)An intermediary appointed for a witness is an officer of the court and must act impartially when assisting communication with the witness.

4AJAppointment of witness intermediary—generally

(1)A court may appoint an intermediary in a criminal proceeding for a witness with a communication difficulty—

(a)on its own initiative; or

(b)on the application of—

(i)the DPP; or

(ii)the witness; or

(iii)the accused person.

Example—communication difficulty

a mental or physical disability that impedes speech

(2)A court must not appoint an intermediary for a witness under this section if satisfied that the witness—

(a)is aware of their right to make an application for an intermediary to be appointed; and

(b)is able to, and wishes to, give evidence without the assistance of an intermediary.

(3)In making a decision under this section, the court is not bound by the rules of evidence and may inform itself as it considers appropriate.

4AKAppointment of witness intermediary—prescribed witnesses

(1)A court must appoint an intermediary in a criminal proceeding for a witness prescribed by regulation.

(2)However, the court need not appoint an intermediary for a witness under this section if—

(a)there is no‑one available who—

(i)meets the needs of the witness; and

(ii)satisfies the requirements in section 4AL; or

(b)it is not in the interests of justice to appoint an intermediary.

(3)Also, the court must not appoint an intermediary for a witness under this section if satisfied that the witness—

(a)is aware of their right to an intermediary; and

(b)is able to, and wishes to, give evidence without the assistance of an intermediary.

(4)In making a decision under subsection (2) or (3), the court is not bound by the rules of evidence and may inform itself as it considers appropriate.

4ALAppointment of witness intermediary—suitability of the intermediary for the witness etc

(1)A court may appoint an intermediary for a witness in a criminal proceeding only if—

(a)the intermediaries administrator is satisfied the intermediary has qualifications, training, experience or skills suitable for the witness; and

(b)if the intermediary is a designated person—the court is satisfied—

(i)there is no other suitable intermediary reasonably available; and

(ii)the appointment is in the interests of justice.

(2)In making a decision under subsection (1), the court is not bound by the rules of evidence and may inform itself as it considers appropriate.

(3)In this section:

designated person, in relation to a criminal proceeding, means a person who is—

(a)a relative, friend or acquaintance of the witness or the accused person; or

(b)a person who has assisted the witness (other than as an intermediary) or the accused person in a professional capacity; or

(c)a party or potential witness in the proceeding.

4AMWitness to give evidence in presence of intermediary

(1)If a court appoints an intermediary for a witness in a criminal proceeding, the witness must give their evidence in the presence of the intermediary.

(2)Evidence of a witness given in the presence of an intermediary must be given in circumstances in which—

(a)the court and any lawyer appearing in the proceeding are able to—

(i)see and hear the witness giving evidence; and

(ii)communicate with the intermediary; and

(b)the jury (if any) is able to see and hear the witness giving evidence, including any assistance given by the intermediary.

NoteA person must take an oath or make an affirmation before acting as an intermediary in a proceeding (see Evidence Act 2011, s 22).

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

(a)a witness giving evidence in the presence of an intermediary 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 intermediary is present.

(4)An order that the court be closed to the public does not stop an intermediary for a witness being in court while the witness gives evidence.

4ANRelationship to other provisions of this Act

This part does not affect the operation of any other provision in this Act.

  1. Meaning of proceeding—pt 4.1
    Section 37, definition of proceeding, paragraph (b)

    after

    pre-trial hearing

    insert

    and ground rules hearing

  2. Special requirements—particular proceedings
    Section 43, new note

    insert

    Note 3The court may also appoint an intermediary for a witness (see s 4AJ and s 4AK).

  3. Dictionary, new definitions

    insert

    ground rules hearing, for chapter 1A (Ground rules hearings—criminal proceedings)—see section 4AA.

    intermediaries administrator, for chapter 1B (Witness intermediaries—criminal proceedings)—see section 4AG.

    intermediary, for a witness in a criminal proceeding—see section 4AG.

  4. Dictionary, definition of witness

    substitute

    witness—

    (a)for chapter 1A (Ground rules hearings—criminal proceedings)—see section 4AA; and

    (b)for chapter 1B (Witness intermediaries—criminal proceedings)—see section 4AG; and

    (c)for part 4.3 (Special requirements—general)—see section 46.

Part 3Evidence (Miscellaneous Provisions) Regulation 2009

  1. New part 1 heading

    before section 1, insert

Part 1Preliminary

  1. New section 2

    insert

  2. Dictionary

    The dictionary at the end of this regulation is part of this regulation.

    Note 1The dictionary at the end of this regulation defines certain terms used in this regulation.

    Note 2A definition in the dictionary applies to the entire regulation unless the definition, or another provision of the regulation, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

  3. New part 2

    after section 3, insert

Part 2Witness intermediaries

3AIntermediaries administrator—Act, s 4AG (2), definition of intermediaries administrator

The intermediaries administrator is the victims of crime commissioner.

3BPrescribed witnesses—Act, s 4AK (1)

(1)The following witnesses are prescribed:

(a)a child complainant in a sexual offence proceeding;

(b)a child in a serious violent offence proceeding involving the death of a person.

(2)In this section:

child, in a proceeding, see the Act, section 42.

complainant, in relation to a proceeding for an offence—see the Act, section 42.

serious violent offence proceeding––see the Act, section 40.

sexual offence proceeding––see the Act, section 41.

  1. New part 3 heading

    before section 4, insert

Part 3Sexual, violent and family violence offence proceedings

  1. Prescribed person—Act, s 51 (1) and (3)
    New section 4 (1) (c)

    insert

    (c)an intermediary.

  2. New dictionary

    insert

Dictionary

(see s 2)

Note 1The Legislation Act contains definitions and other provisions relevant to this regulation.

Note 2For example, the Legislation Act, dict, pt 1, defines the following term:

·     victims of crime commissioner.

Note 3Terms used in this regulation have the same meaning that they have in the Evidence (Miscellaneous Provisions) Act 1991 (see Legislation Act, s 148). For example, the following term is defined in the Evidence (Miscellaneous Provisions) Act 1991, dict:

·     intermediary (see s 4AG).


Schedule 1Consequential amendments

(see s 3)

Part 1.1Criminal Code 2002

[1.1]Section 700, new definition of intermediary

insert

intermediary—see the Evidence (Miscellaneous Provisions) Act 1991, section 4AG.

[1.2]New section 702 (3)

before the note, insert

(3)An intermediary commits an offence (also aggravated perjury) if—

(a)the intermediary, by a sworn statement, assists a witness to communicate evidence in a legal proceeding with the intention of procuring someone else’s conviction for, or acquittal of, an offence (the relevant offence); and

(b)the relevant offence is punishable by imprisonment; and

(c)the intermediary’s statement is false or misleading; and

(d)the intermediary is reckless about whether the intermediary’s statement is false or misleading.

Maximum penalty:  1 400 penalty units, imprisonment for 14 years or both.

[1.3]New section 703 (3)

insert

(3)An intermediary commits an offence (also perjury) if—

(a)the intermediary, by a sworn statement, assists a witness to communicate evidence in a legal proceeding; and

(b)the intermediary’s statement is false or misleading; and

(c)the intermediary is reckless about whether the intermediary’s statement is false or misleading.

Maximum penalty:  700 penalty units, imprisonment for 7 years or both.

[1.4]Section 707 (1) (b) (i)

substitute

(i)not attend as a witness, interpreter, intermediary or juror in a legal proceeding; or

[1.5]New section 707 (1) (b) (iva)

insert

(iva)assist a witness to communicate evidence as an intermediary in a legal proceeding in a way that makes the evidence false or misleading; or

[1.6]Section 707 (2) (b) (i)

substitute

(i)not attend as a witness, interpreter, intermediary or juror in a legal proceeding; or

[1.7]New section 707 (2) (b) (iva)

insert

(iva)assist a witness to communicate evidence as an intermediary in a legal proceeding in a way that makes the evidence false or misleading; or

[1.8]Section 708 heading

substitute

  1. Deceiving witness, interpreter, intermediary or juror

[1.9]Section 708 (a)

substitute

(a)not attend as a witness, interpreter, intermediary or juror in a legal proceeding; or

[1.10]Section 709 heading

substitute

  1. Threatening etc witness, interpreter, intermediary or juror

[1.11]Section 709 (a)

substitute

(a)not attend as a witness, interpreter, intermediary or juror in a legal proceeding; or

[1.12]New section 709A (1) (da)

insert

(da)assist a witness to communicate evidence as an intermediary in a criminal investigation in a way that makes the evidence false or misleading; or

[1.13]Section 710 heading

substitute

  1. Preventing attendance etc of witness, interpreter, intermediary or juror

[1.14]Section 710 (a)

substitute

(a)attending as a witness, interpreter, intermediary or juror in a legal proceeding; or

[1.15]Section 712 (2), new definition of intermediary

insert

intermediary includes a person who attends in the proceeding as an intermediary but is not called as an intermediary.

[1.16]Section 712 (2), definition of involved person, paragraph (c)

substitute

(c)a witness, interpreter, intermediary, juror or lawyer involved in the proceeding; or

[1.17]Section 726 (1) (d) and (e)

substitute

(d)section 708 (Deceiving witness, interpreter, intermediary or juror);

(e)section 709 (Threatening etc witness, interpreter, intermediary or juror);

Part 1.2Evidence Act 2011

[1.18]Section 22 heading

substitute

  1. Interpreters and intermediaries to act on oath or affirmation

[1.19]Section 22 (1)

after

interpreter

insert

or intermediary

[1.20]Section 22 (2)

after

acting as an interpreter

insert

or intermediary

[1.21]Section 22 (2)

omit

acts as an interpreter

substitute

acts in that capacity

[1.22]Section 22, note

substitute

NoteThe Commonwealth Act does not include intermediaries and does not include s (2).

[1.23]Section 23 (1)

after

interpreter

insert

or intermediary

[1.24]Section 23, note

substitute

NoteThe Commonwealth Act does not include intermediaries, and s (2) differs from the Commonwealth Act.

[1.25]Section 31 (4)

substitute

(4)This section does not affect the right of a witness to whom this section applies to give evidence about a fact—

(a)through an interpreter under section 30; or

(b)with the assistance of an intermediary under the Evidence (Miscellaneous Provisions) Act 1991, chapter 1B (Witness intermediaries—criminal proceedings).

NoteThe Commonwealth Act does not include intermediaries.

[1.26]Schedule 1, Oaths by intermediaries

after Oaths by interpreters, insert

Oaths by intermediaries

I swear (or the person taking the oath may promise) by Almighty God (or the person may name a god recognised by the person’s religion) that I will impartially and faithfully inform the court about the witness’s communication needs and communicate questions and answers, make true explanation of all matters and things that are required of me, and do all other matters and things that are required of me in this case, to the best of my ability.

Note     The Commonwealth Act does not include intermediaries.

[1.27]Schedule 1, Affirmations by intermediaries

after Affirmations by interpreters, insert

Affirmations by intermediaries

I solemnly and sincerely declare and affirm that I will impartially and faithfully inform the court about the witness’s communication needs and communicate questions and answers, make true explanation of all matters and things that are required of me, and do all other matters and things that are required of me in this case, to the best of my ability.

Note     The Commonwealth Act does not include intermediaries.

[1.28]Dictionary, part 1, new definition of intermediary

insert

intermediary, in relation to a proceeding, means a person appointed as an intermediary for a witness in the proceeding under the Evidence (Miscellaneous Provisions) Act 1991 chapter 1B (Witness intermediaries—criminal proceedings).

Endnotes

  1. Presentation speech

    Presentation speech made in the Legislative Assembly on 24 September 2019.

  2. Notification

    Notified under the Legislation Act on 31 October 2019.

  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 2019, which was passed by the Legislative Assembly on 24 October 2019.

    Clerk of the Legislative Assembly

    © Australian Capital Territory 2019

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