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2.3.1 – Alternative Arrangements

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When Can Alternative Arrangements Be Made?

  1. While ordinarily witnesses must give evidence in the courtroom in accordance with normal court procedures, the Criminal Procedure Act 2009 provides that alternative arrangements can be made if the proceedings relate (wholly or partly) to:
  2. A direction requiring the use of alternative arrangements may be made on the application of a party or on the court’s own motion (Criminal Procedure Act 2009 s337(1)).

    What is a "Sexual Offence"?

  3. A "sexual offence" is defined as:

    (a) an offence against—

    (i) a provision of Subdivision (8A), (8B), (8C), (8D), (8E), (8F) or (8FA) of Division 1 of Part I of the Crimes Act 1958; or

    (ii) section 327(2) (failure to disclose a sexual offence committed against a child under the age of 16 years) of the Crimes Act 1958; or

    (iii) section 5(1), 6(1), 7(1), 8(1), 9(1) or 11(1) of the Sex Work Act 1994;

    (b) an offence an element of which involves—

    (i) any person engaging in sexual activity; or

    (ii) any person taking part in a sexual act; or

    (iii) commercial sexual services; or

    (iv) a sexual performance involving a child;

    (c) an offence an element of which involves—

    (i) an intention that any of the conduct referred to in paragraph (b) is to occur; or

    (ii) soliciting, procuring, enabling or threatening any of the conduct referred to in paragraph (b); or

    (iii) inducing or knowingly allowing a child to enter or remain on premises so that any of the conduct referred to in paragraph (b) may occur;

    (d) an offence an element of which involves child abuse material;

    (e) an offence an element of which involves indecency;

    (f) an offence of attempting to commit, or of incitement or conspiracy to commit, an offence referred to in paragraph (a), (b), (c), (d) or (e);

    (g) an offence against section 49C(2) (failure by person in authority to protect child from sexual offence) of the Crimes Act 1958 as in force before the commencement of section 16 of the Crimes Amendment (Sexual Offences) Act 2016 (Criminal Procedure Act 2009 s4).

  4. An offence against the Sex Work Act 1994 that is not listed in section 4(1)(a)(iiii) is not a sexual offence for the purpose of the Criminal Procedure Act 2009.

    What is a "Family Violence" Offence?

  5. Under the Family Violence Protection Act 2008, "family violence" is defined as:
  6. The definition of "family violence" explicitly includes the following kinds of behaviour:
  7. Behaviour may constitute family violence even if it would not constitute a criminal offence (Family Violence Protection Act 2008 s5(3)).

    Types of Alternative Arrangements

  8. Criminal Procedure Act 2009 s360 provides a non-exhaustive list of alternative arrangements that may be made in relation to any witness (including the complainant) who gives evidence in a proceeding that relates (wholly or partly) to a sexual offence or a family violence offence. These include:
  9. If evidence is given from a place other than the courtroom, the court must direct that the evidence be recorded (Criminal Procedure Act 2009 s362).

    Requirement to Use Alternative Arrangements for Complainants

  10. In proceedings that relate (wholly or partly) to a sexual offence or a family violence offence, the court must direct that the complainant’s evidence be given from a place other than the courtroom, unless:
  11. If the court allows the complainant to give evidence in the courtroom, it must direct that a screen be used to remove the accused from the complainant’s direct line of vision, unless it is satisfied that the complainant is aware of the right to use a screen and does not wish to do so (Criminal Procedure Act 2009 s364).
  12. Regardless of the location from which the complainant gives evidence, the court must direct that he or she be permitted to have an emotional support person beside him or her when giving evidence, unless it is satisfied that the complainant is aware of the right to have an emotional support person with him or her, and he or she does not want such a person to be present (Criminal Procedure Act 2009 s365).
  13. Where the complainant is a child or has a cognitive impairment, his or her evidence must be pre-recorded at a special hearing, unless the court directs otherwise (Criminal Procedure Act 2009 ss369-370).[4] The alternative arrangement provisions continue to apply to such complainants to the extent that they are relevant.

    Jury Directions

  14. Following the commencement of the Jury Directions and Other Acts Amendment Act 2017 on 1 October 2017, the Criminal Procedure Act 2009 no longer specifies any jury directions that are necessary when alternative arrangements are used.
  15. The statutory jury directions in relation to alternative arrangements were repealed on the basis that mandatory directions were unnecessary because the special hearing procedure was commonplace, and to reduce the risk that a direction about the need to treat special hearing evidence the same way as other evidence would operate perversely by prompting jurors to treat special hearing evidence as unusual (Jury Directions and Other Acts Amendment Bill 2017 Explanatory Memorandum, clause 13).

    Notes

[1] The definition of a "family member" under the Family Violence Protection Act 2008 is broad, and includes current and former partners and their children, other relatives and former relatives, and people who are reasonably regarded as being like a family member, having regard to the circumstances of the relationship. See Family Violence Protection Act 2008 ss8-10 for further information.

[2] See Family Violence Protection Act 2008 s7 for the meaning of "emotional or psychological abuse".

[3] See Family Violence Protection Act 2008 s6 for the meaning of "economic abuse".

[4] See Pre-recorded Evidence for further information concerning the special hearing procedure.

Last updated: 19 March 2018

In This Section

2.3.1.1 – Charge: Alternative Arrangements

2.3.1.2 - Charge: Alternative Arrangements (Short Charge)

See Also

2.3 – Other Procedures for Taking Evidence

2.3.2 – Protected Witnesses

2.3.3 – Pre-recorded Evidence

2.3.4 - Witness Support Dog