South Australian Numbered Acts South Australian Numbered ActsAfter section 13BA insert:
13BB—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.