Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actsinsert
Part 4.3 Evidence in domestic violence proceedings
Division 4.3.1 Definitions—pt 4.3
74 Meaning of domestic violence offence —pt 4.3
In this part:
"domestic violence offence" means an offence mentioned in the Domestic Violence and Protection Orders Act 2008
, schedule 1, table 1.2.
Note Complainant , for a domestic violence offence proceeding,
is an adult who is a relevant person in relation to the accused (see
s 76).
Relevant person —see s 36B.
75 Meaning of domestic violence offence proceeding —pt 4.3
(1) In this part:
"domestic violence offence proceeding" means—
(a) a proceeding for a domestic violence offence; or
(b) a proceeding in relation to bail for a person charged with a domestic violence offence, whether or not the person is also charged with any other offence; or
(c) a sentencing proceeding for a person convicted or found guilty of a domestic violence offence, whether or not the person is also convicted or found guilty of any other offence; or
(d) an appeal arising out of a proceeding mentioned in paragraphs (a) to (c); or
(e) an interlocutory proceeding in, or a proceeding ancillary to, a proceeding mentioned in paragraphs (a) to (c).
(2) In this section:
"proceeding for a domestic violence offence" includes—
(a) a proceeding for a domestic violence offence and any other offence; and
(b) a proceeding for a domestic violence offence and any other offence as an alternative to the domestic violence offence; and
(c) a proceeding for a domestic violence offence that may result in a finding of guilt (or committal for trial or sentence) for any other offence.
76 Meaning of complainant —pt 4.3
In this part:
"complainant", for a domestic violence offence proceeding—
(a) means a person—
(i) against whom a domestic violence offence the subject of the proceeding is alleged, or has been found, to have been committed; and
(ii) who is a relevant person in relation to the accused person; but
Note Relevant person —see s 36B.
(b) does not include a person who—
(i) is a child on the day a recorded statement is made; or
(ii) is intellectually impaired.
Note 1 Intellectually impaired —see s 36D.
Note 2 Audiovisual recording and the evidence of children and people with intellectual impairment is dealt with in div 4.2.2A.
77 Meaning of recorded statement —pt 4.3
(1) In this part:
"recorded statement "means—
(a) an audiovisual recording—
(i) of a complainant answering questions of a police officer in relation to the investigation of a domestic violence offence; and
(ii) made by a police officer; or
(b) an audio recording that complies with paragraph (a)—
(i) if the complainant does not consent to an audiovisual recording; or
(ii) in exceptional circumstances.
Example—exceptional circumstances
technical difficulties with the visual aspect of the recording identified following the making of the recording
Note An 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) A police officer must, before making a recorded statement, tell the complainant that—
(a) the recorded statement may be used in evidence at a hearing; and
(b) if the recorded statement is used in evidence at a hearing, the complainant may be called to give evidence under cross-examination in person at the hearing; and
(c) the complainant does not have to consent to the recording.
(3) In this section:
"police officer "includes a person who is a member of the police force of a State or another Territory if—
(a) provisions of the law of that State or Territory correspond (or substantially correspond) to this part; and
(b) the person is trained in the taking of evidence under those provisions.
Note Police officer —see the Legislation Act
, dictionary, pt 1.
Division 4.3.2 Evidence may be given in closed court
78 Evidence may be given in closed court
(1) This section applies to the complainant giving evidence in a domestic violence offence proceeding if the court considers that the complainant has a vulnerability that affects the complainant's ability to give evidence because of the circumstances of the proceeding or the complainant's circumstances.
Examples—complainant vulnerability
1 the complainant is likely to suffer severe emotional trauma because of the nature of the alleged offence
2 the complainant is intimidated or distressed because of the complainant's relationship to the accused person
Note An 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 is not bound by the rules of evidence and may inform itself as it considers appropriate.
(3) The court may order that the court be closed to the public while all or part of the complainant's evidence (including evidence given under cross-examination) is given.
Note The accused is entitled to a fair and public hearing, but the court may exclude the public in certain circumstances (see Human Rights Act 2004
, s 21 (2)).
(4) In deciding whether to order that the court be closed to the public, the court must consider whether—
(a) the complainant wants to give evidence in open court; and
(b) it is in the interests of justice that the complainant give evidence in open court.
(5) However, an order under this section does not stop the following people from being in court when the complainant gives evidence:
(a) a person nominated by the complainant;
(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.
Note Publishing certain information in relation to sexual offence proceedings is an offence (see s 40).
(6) In this section, a reference to a person giving evidence includes the person giving evidence by the playing of a recorded statement of the evidence under division 4.3.3.
Division 4.3.3 Recorded statement of police interview admissible as evidence
79 Recorded statement—requirements
(1) A recorded statement must be made—
(a) as soon as practicable after the events mentioned in the statement happened; and
(b) in the form of questions and answers.
Note If the recorded statement is to be admitted as evidence in a proceeding, the rules of evidence apply to the content of the statement.
(2) A recorded statement of a complainant must include the following:
(a) the name of each person present during any part of the recording;
(b) a statement by the complainant—
(i) of the complainant's name, age and whether the complainant lives in the ACT; and
(ii) about the truth of the representations made by the complainant in the recorded statement;
(c) any other matter prescribed by regulation.
(3) As far as is practicable, a recorded statement must not contain an image of—
(a) a child; or
(b) a person who is intellectually impaired.
Note 1 Intellectually impaired —see s 36D.
Note 2 Audiovisual recording and the evidence of children and people with intellectual impairment is dealt with in div 4.2.2A.
(4) If any part of a recorded statement is in a language other than English—
(a) the recorded statement must contain an English translation of the part; or
(b) a separate written English translation of the part must accompany the recorded statement.
(5) A recorded statement must not be edited or changed unless—
(a) both parties consent to the edits or changes; or
(b) the court hearing the proceeding in which the recorded statement is tendered otherwise orders.
Example—court ordering change
editing the recorded statement to omit inadmissible material
Note An 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).
80 Recorded statement—may be admitted as evidence
(1) A recorded statement may—
(a) be played at the hearing of a proceeding for the domestic violence offence to which it relates; and
(b) if the recorded statement is played at the hearing—be admitted as all or part of the complainant's evidence in chief in the proceeding as if the complainant gave the evidence at the hearing in person.
(2) However, the court may refuse to admit all or any part of the recorded statement if the court considers it is in the interests of justice to do so.
(3) The complainant may choose not to be present in the courtroom while the court is viewing or listening to the recorded statement.
(4) If the complainant is giving evidence by audiovisual link from an external place under division 4.2.3 (Sexual and violent offence proceedings—giving evidence by audiovisual link), the complainant must not be visible or audible to anyone in the courtroom by closed-circuit television or by means of similar technology while the court is viewing or listening to the recorded statement.
(5) To remove any doubt, if a recorded statement is admitted as part of a complainant's evidence in chief in a proceeding, the complainant may give further evidence in chief.
(6) This section is subject to section 81D (Recorded statement—admissibility).
81 Recorded statement—hearsay rule and opinion rule
(1) The hearsay rule and the opinion rule do not prevent the admission or use of evidence of a representation in the form of a recorded statement only because it is in that form.
Note The hearsay rule and opinion rule will apply to the content of the recorded statement to be admitted as evidence.
(2) In this section:
"hearsay rule"—see the Evidence Act 2011
, dictionary, part 1.
"opinion rule"—see the Evidence Act 2011
, dictionary, part 1.
81A Validity of proceeding not affected
(1) The failure of a police officer to record a representation in the form of a recorded statement in accordance with the requirements of this division or any regulation does not affect the validity of a proceeding in which evidence of the representation is given.
(2) The failure of a complainant to give evidence in accordance with this part does not affect the validity of a proceeding or any decision made in connection with the proceeding.
81B Recorded statement—represented accused person to be given copy
(1) This section applies if—
(a) a recorded statement has been made in relation to a domestic violence offence that is the subject of a proceeding; and
(b) the accused person is represented by a lawyer in the proceeding.
(2) The lawyer representing the accused person must be given a copy of the recorded statement as soon as practicable after the proceeding is commenced.
Note For how documents may be served, see the Legislation Act
, pt 19.5.
(3) The lawyer representing the accused person must return the copy of the recorded statement by giving it to the prosecutor not later than 16 weeks after the proceeding is finalised.
(4) The accused person must not be given, or take a copy of, the recorded statement.
81C Recorded statement—unrepresented accused person to be given access
(1) This section applies if—
(a) a recorded statement has been made in relation to a domestic violence offence that is the subject of a proceeding; and
(b) the accused person is not represented by a lawyer in the proceeding.
(2) The accused person must be given an audio copy of the recorded statement as soon as practicable after the proceeding is commenced.
(3) Also, if it is reasonably practicable, the accused person must be given an opportunity to view a recorded statement that is in the form of a video recording at a police station on at least 1 of the following occasions:
(a) when the accused person is being questioned in relation to the alleged domestic violence offence;
(b) at the request of the accused person, on a day arranged with the accused person;
(c) on another day stated in a written notice given to the accused person before committal proceedings or the trial commences.
(4) If compliance with subsection (3) is not reasonably practicable, the accused person must be given the opportunity to view the recorded statement on a day on which proceedings relating to the offence are being held.
81D Recorded statement—admissibility
Evidence of a representation of a complainant given in the form of a recorded statement is not to be admitted if section 81B or section 81C have not been complied with, unless the court is satisfied that—
(a) the parties consent to the recorded statement being admitted; or
(b) the accused person or the accused person's lawyer (if any) have been given a reasonable opportunity to listen to or view the recorded statement and it would be in the interests of justice to admit the recorded statement.
81E Recorded statement—accused person to be given audio copy
(1) This section applies if—
(a) the prosecutor in a domestic violence offence proceeding intends to tender a recorded statement as evidence; and
(b) the court accepts a plea of not guilty from the accused person; and
(c) the accused person has not already been given an audio copy of the recorded statement under section 81C (Recorded statement—unrepresented accused person to be given access).
(2) The accused person must be given an audio copy of the recorded statement.
81F Recorded statement—jury trial
(1) This section applies if—
(a) a domestic violence offence proceeding is a trial by jury; and
(b) a recorded statement is admitted in evidence in the proceeding.
(2) The court must tell the jury that—
(a) admission of a recorded statement 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 evidence is given in that way.
(3) If the court considers that a transcript of the recorded statement would be likely to help the jury's understanding of the evidence, the court may order that the transcript be made available to the jury.
81G Recorded statement—offence to publish
(1) A person commits an offence if the person—
(a) publishes a recorded statement; and
(b) does not have authority to publish the recorded statement.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(2) For this section, a person has authority to publish a recorded statement only if the person publishes the recorded statement in connection with—
(a) the investigation of, or a proceeding for, an offence in relation to which the recorded statement is prepared; or
(b) a re-hearing, re-trial or appeal in relation to the proceeding.
(3) In this section:
"person" includes the complainant in relation to the recorded statement.
"publish" means communicate or disseminate information in a way or to an extent that makes it available to, or likely to come to the notice of, the public or a section of the public or anyone else not lawfully entitled to the information.