Victorian Current Acts

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CRIMINAL PROCEDURE ACT 2009 - SECT 389

Audiovisual link evidence from overseas in certain proceedings

S. 389(1) substituted by No. 5/2018 s. 15(1).

    (1)     This section applies to a criminal proceeding that relates (wholly or partly) to a charge for an offence against—

        (a)     section 49S(1) of the Crimes Act 1958 ; or

        (b)     section 49A(1) of the Crimes Act 1958 as in force before the commencement of section 16 of the  Crimes Amendment (Sexual Offences) Act 2016 .

    (2)     The court may, on the application of a party to the criminal proceeding, direct that a witness give evidence by audiovisual link if—

        (a)     the witness will give the evidence from outside Australia; and

        (b)     the witness is not an accused in the proceeding; and

        (c)     the facilities required by subsection (3) are available or can reasonably be made available; and

        (d)     the court is satisfied that attendance of the witness at the court to give the evidence would—

              (i)     cause unreasonable expense or inconvenience; or

              (ii)     cause the witness psychological harm or unreasonable distress; or

              (iii)     cause the witness to become so intimidated or distressed that his or her reliability as a witness would be significantly reduced; and

        (e)     the court is satisfied that it is consistent with the interests of justice that the evidence be taken by audiovisual link.

    (3)     A witness can give evidence under a direction under this section only if the courtroom or other place in Victoria where the court is sitting ( the Victorian point ) and the place where the evidence is given ( the overseas point ) are equipped with audiovisual facilities that—

        (a)     enable all persons at the Victorian point that the court considers appropriate, to see and hear the witness give the evidence; and

        (b)     enable all persons at the overseas point that the court considers appropriate, to see and hear appropriate persons at the Victorian point.

    (4)     The place where a witness gives evidence under a direction under this section is taken to be part of the courtroom or other place in Victoria where the court is sitting while the witness is there for the purpose of giving evidence.

    (5)     An oath or affirmation to be sworn or made by a witness who is to give evidence under a direction under this section may be administered either—

        (a)     by means of the audiovisual link, in as nearly as practicable the same way as if the witness were to give the evidence at the courtroom or other place in Victoria where the court is sitting; or

        (b)     at the direction of, and on behalf of, the court at the place where the witness is to give the evidence by a person authorised by the court.

    (6)     A court may make any orders that are just for the payment of expenses incurred in connection with the giving of evidence under a direction by the court under this section.

    (7)     This section does not prevent any other law, or any rule or regulation made under any other law, about taking evidence of a witness outside Australia from applying for the purposes of a proceeding to which this section applies.

S. 389(8) amended by No. 5/2018 s. 15(2).

    (8)     Nothing in this section limits the application of this Part to a charge for an offence referred to in subsection (1).

Ch. 8 Pt 8.2A (Headings and ss 389A‑389K) inserted by No. 5/2018 s. 25.

Part 8.2A—Ground rules hearings and intermediaries

Division 1—Ground rules hearings

S. 389A inserted by No. 5/2018 s. 25.



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