South Australian Current Acts South Australian Current Acts13BB—Admissibility of recorded evidence in domestic violence proceedings
(1) This section
applies in addition to section 13BA and any other law allowing evidence
to be admitted in the form of a recording.
(2) In proceedings for
a domestic violence offence, the evidence of a complainant may be admitted in
the form of a recording made by a police officer—
(i)
the evidence is in the form of a prescribed recording;
and
(ii)
the court is satisfied as to the complainant's capacity
to give sworn or unsworn evidence at the time the recording was made; and
(iii)
the court is satisfied that the defendant has been given
a reasonable opportunity to listen to or view the recording; and
(iv)
during the course of the trial, the complainant is
available, if required, for further examination, cross-examination or
re-examination; or
(b) if
the court is satisfied that the interests of justice require the admission of
the evidence (whether or not any of the requirements specified in
paragraph (a) are satisfied).
(3) The court's
discretion to exclude evidence is not affected by this section and the court
may—
(a) rule
as inadmissible the whole or any part of the recording; or
(b)
before admitting the recording, order that it be edited so as to exclude
evidence that is inadmissible for any reason.
(4) Despite
subsection (2)(a)(iv) but subject to subsections (5) and (6), the
complainant cannot be further examined, cross-examined or re-examined on the
evidence admitted in the trial without the permission of the court which may
only be given, on application by a party to the proceedings, if—
(a) the
court is satisfied that a party to the proceedings has, since the making of
the recording, become aware of a matter of which the party could not
reasonably have been aware at the time the recording was made; or
(b) the
complainant gives evidence in the trial apart from, or in addition to,
evidence admitted under this section in the form of a recording and the court
is satisfied that it is in the interests of justice that the complainant be
further examined, cross-examined or re-examined; or
(c) the
court is satisfied that it is otherwise in the interests of justice to permit
the complainant to be further examined, cross-examined or re-examined.
(5) The prosecution
may, with the permission of the court and in accordance with any directions of
the court, question the complainant about—
(a)
evidence given by the complainant that is unfavourable to the prosecution
case; or
(b) a
matter of which the complainant may reasonably be supposed to have knowledge
and about which it appears to the court the complainant is not, in
examination-in-chief, making a genuine attempt to give evidence; or
(c)
whether the complainant has, at any time, made a prior inconsistent statement,
(and, for the avoidance of doubt, the requirements of
subsection (4)(a), (b) and (c) do not apply to the giving of
permission under this subsection).
(6) Questioning under
subsection (5) must be conducted as if it were (and is, for the purposes
of this Act other than provisions relating to re-examination, taken to be)
cross-examination.
(7)
Subsections (5) and (6) apply in addition to section 27.
(8) If a court admits
evidence in the form of a recording under this section, the judge must—
(a)
explain to the jury that the law allows the court to admit evidence in this
form; and
(b) warn
the jury—
(i)
not to draw from the admission of evidence in that form
any inference adverse to the defendant; and
(ii)
not to allow the admission of evidence in that form to
influence the weight to be given to the evidence.
(9) Without limiting
section 73, the regulations may—
(a)
prescribe additional requirements in relation to recordings under this
section; and
(b)
require that additional material be provided to the court with a recording in
certain circumstances (such as a transcript or translation); and
(c)
prescribe requirements in relation to access to, or service of, recordings and
other material; and
(d)
prescribe requirements in relation to custody of recordings; and
(e)
impose restrictions on copying or distribution of recordings.
(10) In this
section—
"complainant", in proceedings for a domestic violence offence, means the
person against whom the domestic violence offence is alleged to have been
committed, but does not include a person who—
(a) is
under 16 years of age; or
(b) is
cognitively impaired;
"domestic violence offence" means any offence involving domestic abuse (within
the meaning of the Intervention Orders (Prevention of Abuse) Act 2009 );
"informed consent" means consent given in accordance with requirements
prescribed by the regulations;
"prescribed recording" means a recording made by a police officer of a
representation made by a complainant when the complainant was questioned by a
police officer in connection with the investigation of the commission of a
domestic violence offence where—
(a) the
questioning occurred as soon as practicable after the commission of the
offence; and
(b) the
recording was made with the informed consent of the complainant; and
(c) the
recording contains the following statements by the complainant:
(i)
a statement as to the complainant's age;
(ii)
a statement as to the truth of the representation;
(iii)
any other matter required by the regulations or by rules
of court;
"recording" means an audio record or an audio visual record.