Pre-recorded evidence in child sexual offence proceedings — Child Sexual Offence Evidence Program (CSOEP)
[5-400] Introduction
The pilot scheme (proceedings commenced before 29 January 2024)
The Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Act 2015 amended the Criminal Procedure Act 1986 (the Act) to insert Pt 29 (now repealed), a pilot scheme, permitting the pre-recording of the evidence of a witness who is a child complainant or child prosecution witness in a trial before the District Court for a prescribed sexual offence (“prescribed proceedings”): cl 82. The definition of “child”, for the purposes of the pilot, was a person under 18 years. A prescribed sexual offence is defined in s 3(1) of the Act. All evidence of a child under 16 must be given by way of pre-recorded evidence, and such evidence may be given for a child under 18: cl 84.
These provisions apply to proceedings for a prescribed sexual offence (regardless of when it was committed) in Newcastle or Downing Centre, Sydney District Courts (“prescribed places”) that commenced on or after 5 November 2015 but before 29 January 2024: Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Act, cl 83; 2015, s 2 (now repealed); the Act, Sch 2, Pt 44, cl 120, District Court Practice Note 11: “Child Sexual Evidence Pilot“.
See further at [5-410] Requirements for, and conduct of, pre-recorded hearings.
The current scheme (proceedings commenced on and from 29 January 2024)
The Criminal Procedure Amendment (Child Sexual Offence Evidence) Act 2023 (commenced 29 January 2024) amended the Act by inserting new Div 1A, extending the pilot scheme, with some amendments, to all District Courts (“relevant places”) in NSW: Criminal Procedure Amendment (Child Sexual Offence Evidence) Act, Sch 2, Part 44, cl 119, definition of “Court”. Div 1A applies to proceedings:
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in relation to a prescribed sexual offence whenever committed, or
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if the proceedings relate to more than 1 offence — if at least 1 of the offences is a prescribed sexual offence whenever committed,
including an appeal or rehearing: s 294F.
These amendments apply to all proceedings commenced by a court attendance notice filed, or an indictment presented, in a prescribed or relevant place, on or after 29 January 2024: Sch 2, Pt 44, cl 121–122. Such proceedings are governed by District Court Practice Note 28: “Child Sexual Offence Evidence” (commenced 29 January 2024).
[5-410] Requirements for, and conduct of, pre-recorded hearings
Note: The equivalent provisions applicable under the pilot scheme (Pt 29 of the Act, repealed) are provided in parentheses following each reference to the current provisions of Div 1A. See also Practice Notes 11 and 28.
A child who is under 18 years of age must, subject to a contrary order by the court, give their evidence by way of a pre-recording in accordance with s 294I: ss 294G and 294E. These provisions vary from those under the pilot scheme which required evidence of witnesses under 16 years of age when the accused is committed for trial to be given at a pre-recorded evidence hearing: cl 84.
A contrary order under s 294G(1)(a) not authorising a pre-recorded evidence hearing may only be made if the court is satisfied it is in the interests of justice: s 294G(2) (see cl 84(4)).
When determining whether to make an order under s 294G(1)(a), the primary factors for consideration are the wishes and circumstances of the witness: s 294G(3) (see cl 84(5)). Other factors that may be taken into account include:
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the availability of court and other facilities necessary for a pre-recorded hearing to take place,
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the sufficiency of preparation time for both parties,
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the continuity and availability of counsel at both the pre-recorded evidence hearing and the trial,
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other relevant matters: s 294G(4) (see cl 84(6)).
A witness is entitled to give their evidence in this way even if they become an adult by the time the accused was committed for trial: s 294E (definition of “witness”) (cf cl 84(2) which refers to 16 or more years of age rather than adult).
The pre-recorded evidence hearing must be held as soon as practicable after the accused’s first appearance in the court, but not before the prosecution’s pre-trial disclosure required by s 141: s 294H (see cl 85(1)). This hearing must take place in the absence of the jury: s 294I(2) (see cl 85(3)).
A witness may give evidence in chief (as provided by s 306U) and be cross-examined and re-examined during the pre-recorded evidence hearing: s 294I(1), and (6) (see cll 85(2), 85(6)). Section 306U entitles a vulnerable person, defined in s 306M to include a child, to give their evidence in chief in the form of a recording made by an investigating official. However, the Child’s Interview (commonly referred to as a JIRT interview) is not played during the pre-recorded evidence hearing. The practice is for the child to have had the opportunity to watch their interview (or interviews) about 1 to 3 days before the hearing so it is fresh in their memory. See also [1-372] Giving evidence of out-of-court representations. At the balance of the trial, the jury will be shown the JIRT interview, followed by the recording of the pre-recorded evidence hearing. Any edits to the recordings are to be agreed between the parties and sent to the presiding judge and edits will be ordered by the court. If the edits cannot be agreed, the matter is to be relisted before the pre-recorded evidence hearing judge.
A vulnerable person is also entitled to give their evidence orally in the courtroom or from a location outside the courtroom via closed-circuit television facilities: ss 306S, 306W, 306ZB. Where evidence is given from a remote location, the court may order a court officer and a support person also be present at that location: s 306ZD. A vulnerable person is entitled to choose a support person to be present: s 306ZK(2). The court may disallow a chosen support person if it is likely to prejudice the accused’s right to a fair trial (eg, the person is a witness in the proceedings): s 306ZK(3A).
Section 164A(3A) clarifies that s 164A (which permits a new judge to be nominated or the jury to be discharged if the former presiding judge is unable to continue proceedings) does not apply: (a) to a pre-recorded evidence hearing, or (b) where the former presiding judge only presides over a pre-recorded evidence hearing and not over proceedings thereafter. It does not matter if a different judge conducts the pre-recorded hearing and the balance of trial, nor whether the parties, accused, witness and witness intermediaries are in different places and appear by audio visual link: s 294I(7)–(8).
Witness intermediaries
Appointment
The court must appoint a witness intermediary to assist with the giving of the child’s evidence where the child is under 16 years of age. A witness intermediary may also be appointed by the court on its own motion or on the application of a party to the proceedings, where the witness is 16 or older if the court is satisfied the witness has difficulty communicating: s 294M(3) (see cl 89(3)). Victim Services has established a panel of persons suitable for appointment: s 294M(1) (see cl 89(1)). In SC v R [2020] NSWCCA 314, the court observed that it was implicit from the terms of cl 89 (now s 294M) that the intermediary would be on the panel: at [25]. Witness intermediaries are accredited professionals from the fields of speech pathology, social work, psychology, teaching, or occupational therapy.
A witness intermediary cannot be a relative, friend or acquaintance of the witness, or a person who has assisted the witness in a professional capacity (other than as a witness intermediary), or a party or potential witness in the proceedings: s 294M(5) (see cl 89(5)). However this does not prevent a person who has assisted the witness in a professional capacity (other than as a witness intermediary) from being appointed if the court, in the interests of justice, appoints the person, or merely because the person carries out the functions of a witness intermediary for the witness during a criminal investigation that takes place before or after the commencement of proceedings: s 294M(6). In SC v R, a speech pathologist, who had conducted one session with the complainant but had subsequently supervised a student working with her, was disqualified from acting as a witness intermediary by cl 89(5)(b) (now s 294M(5)(b)). The court concluded that, in those circumstances, the trial judge’s failure to revoke the intermediary’s appointment was erroneous: at [68]. The court held that the disqualifying conditions in cl 89(5) (now s 294M(5)) continued to operate after the witness intermediary had been appointed. The prohibition imposed by cl 89(5)(b) (now s 294M(5)(b)) is on appointing an intermediary with a prior professional association with the witness; there is no requirement the assistance provided warrants a conclusion that the intermediary is no longer neutral or impartial; nor is it limited to direct assistance with a therapeutic component or function: SC v R at [65]–[66].
Role
The witness intermediary is an officer of the court. Their role is to communicate to the court whether the witness can understand questions put to the witness, and explain to the court and person asking the questions the best way a witness can be asked questions the witness can understand: s 294L(1) (see cl 88(1) which differs slightly). If requested by the court, the witness intermediary must give the court a written report about the communication needs of the witness, a copy of which must be given to the parties before the witness gives evidence: s 294M(7), (8). A witness intermediary will typically present the report and discuss recommendations at a Ground Rules Hearing convened by the court and attended by counsel: District Court Criminal Practice Note 11. See also [5-430] Child Sexual Assault List — procedure.
The Evidence Act 1995 applies to witness intermediaries in the same way as it applies to interpreters: s 294N(4), Evidence Act 1995, s 22. For the form of the oath or affirmation an intermediary must take before acting as an intermediary see Criminal Procedure Regulation 2017, cl 111.
During a pre-recorded evidence hearing, the witness may only give evidence if the witness intermediary is at the place from which the witness is giving evidence, in the court room or at a different place appearing by audio visual link and the witness, Court and a legal practitioner acting in the proceedings is able to see and hear the witness intermediary: s 294N(1). The court and legal practitioner acting in the proceedings must be able to see and hear the giving of evidence and communicate with the witness intermediary and, except for evidence given under Ch 6, Pt 6 or Div 1A by a recording, the jury are able to see and hear the giving of the evidence: s 294N(2).
Where Div 1A applies, s 294O (previously cl 91) requires the court to inform the jury it is standard procedure to give evidence by a pre-recording or to use a witness intermediary in the proceedings and, warn the jury not to draw an inference adverse to the accused or to give evidence greater or lesser weight because the evidence was given by a pre-recording or a witness intermediary was used. See [5-420] Suggested direction — pre-recorded evidence below.
[5-420] Suggested direction — pre-recorded evidence
You are about to see [the complainant’s/child witness’] evidence. It consists of an interview with a police officer that was recorded (called a JIRT interview) and questions asked of the witness in court before [myself/another judge] that were recorded. The/A Crown Prosecutor/Trial Advocate, the accused’s counsel and their instructing solicitors and the accused were all present when [the complainant/child witness] was asked questions in court.
When the recording of the evidence in court took place, the evidence of [the complainant/child witness] was taken using an audio-visual link between the room [the complainant/child witness] was in and the courtroom. [If appropriate: At that time, a support person and a court/sheriff’s officer were in the same room as [the complainant/child witness].]
[If appropriate: You will see there is another person with [the complainant/child witness] on the recording/on both recordings. This person is referred to as a witness intermediary. The witness intermediary is appointed by the court and their role is to assist [the complainant/child witness] with communication if that is required.]
Each of these things I have spoken about does not mean you treat the evidence any differently to the evidence of any other witness you hear in the courtroom. This is all standard procedure. You should not draw any inference against the accused because the evidence is being given in this way or give [the complainant’s/child witness’] evidence any greater or lesser weight. You assess their evidence in the same way as you assess the evidence of any of the other witnesses in the trial.
As with the evidence of any witness, it is important that you pay attention to the evidence and understand that all witnesses only give their evidence once. Witnesses do not return to court to repeat their evidence after it has been given and nor is the evidence contained in the recordings played again.
Notes:
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The suggested direction above is in the terms required by s 294O (see cl 91).
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At the pre-recorded evidence hearing, the judge should take the parties and the witness through the rules of the court such as:
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the availability of breaks,
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if the witness doesn’t understand a question, they should let the court or witness intermediary know,
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the witness should not feel any pressure to agree to a question just because an adult is asking the question,
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it is important for the witness to tell the truth and only talk about things that really happened,
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the witness should not guess at an answer. If they can’t remember or don’t know the answer, they can tell the court,
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if they hear the words “I object”, they should not answer,
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what are Exhibits/MFIs,
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the formula for Browne v Dunn questions.
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It is open to the judge to make a direction that defence counsel need not “put their case” to the witness where there is a risk the witness will not be able to understand, the witness is becoming distressed, or there is a risk of gratuitous concurrence — acquiescing to leading questions.
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The court is permitted to control the questioning of a witness (Evidence Act 1995, s 26) and must disallow improper questions put to a witness in cross-examination (Evidence Act, s 41).
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Where a witness is giving evidence from a remote location, there will usually also be a support person and a court officer present. It is important to ask the name of the support person present, to ensure they are not (or are not likely to become) a witness in the proceedings.
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Further evidence can only be given by a witness with the leave of the court: s 294K(1) (see cl 87(1)). This subsection applies despite anything to the contrary in the Criminal Procedure Act or the Evidence Act 1995: s 294K(5) (see cl 87(5)). Either party may apply for leave: s 294K(2) (see cl 87(2)). Leave must not be given unless the court is satisfied:
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the witness or party has become aware of a matter of which the party could not reasonably have been aware at the time of the recording, or
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it is otherwise in the interests of justice to give leave: s 294K(3) (see cl 87(3)).
The further evidence must, to the extent practicable, be given by pre-recording at a hearing in the same way as the original pre-recorded evidence, unless the court otherwise directs: s 294K(4) (see cl 87(4)).
An important consideration in exercising the power under s 294K must reflect the dominant purpose of protecting child witnesses from the trauma of giving evidence, so far as it is reasonably possible to reduce that trauma. The use of a pre-recorded evidence hearing is seen to go part of the way, but even then, is not to be repeated unless the interests of justice require it: PJ v R [2023] NSWCCA 105 at [47]. Furthermore, the concern that repeat hearings will potentially add to a child witness’ trauma requires legal representatives appearing at these hearings to be aware of the statutory policy not to provide further hearings and to address at that hearing (and where appropriate, put to the child witness) any matter then known to the applicant and which is sought to be relied upon at trial: PJ v R at [48]–[49].
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The accused and their legal representatives do not have a right to a recording (or copy) of the pre-recorded evidence, but reasonable access to listen to or view the recording must be provided: s 294J. It is desirable that there be prior discussion with the parties about whether, in the circumstances of the individual case, a transcript of the recording should be provided to the jury to assist with comprehension: s 294J (see cl 86(5)). If the transcript is to be provided, it is desirable that the discussion also address whether the transcripts provided to the jurors should be retrieved at the end of the playing of the recording. If there is a possibility of this occurring, jurors should be told so that any notes they may wish to make are not made on the transcript. If transcripts are provided but then retrieved, it is suggested they be placed in individual envelopes with juror identification on the outside so they may be returned to the correct juror if that should later occur.
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Unless the witness otherwise chooses, they must not be present in the court, or be visible or audible to the court by CCTV or other technology, while a recording made pursuant to s 306U or made at the hearing is being viewed or heard: s 294I(4) (see cl 85(5)).
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The recording of the evidence should not be marked as an exhibit and should not be sent with the exhibits to the jury when they retire to consider their verdict: CF v R [2017] NSWCCA 318 at [63]–[65]; R v NZ (2005) 63 NSWLR 628 at [191]–[192], [210](a); Gately v The Queen (2007) 232 CLR 208 at [93]. See also AB (a pseudonym) v R [2019] NSWCCA 82 at [40]–[42].
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If the jury requests or the sound quality of the recordings is such that a transcript is being provided to the jury during or after the playing of any of the recorded evidence, the usual directions in relation to the provision of transcripts will need to be given. See [1-530] Suggested direction — use of the transcripts.
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If, during deliberations, the jury ask to view the pre-recorded evidence of the witness this should ordinarily be done by replaying the evidence in court in the presence of the trial judge, counsel and the accused: Gately v The Queen at [96]. It is generally undesirable to allow the jury unsupervised access to the complainant’s recorded evidence, although a trial judge has a discretion to do so: CF v R [2017] NSWCCA 318 at [82]–[83]; see also R v NZ at [196], [210](a). However, in determining the procedure to adopt, consideration should be given to the significance of the evidence in the trial as a whole: R v NZ at [212]. A relevant consideration is to maintain the balance of fairness in the trial: Gately v The Queen at [80]; R v NZ at [169]–[176], [212]; see also CF v R at [92].
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Where the evidence is played to the jury again, consideration should be given to repeating the direction that the evidence is not to be afforded any greater weight than other evidence given in the trial: R v NZ at [210](e); see also JT v R [2021] NSWCCA 223 at [82]–[89] and also Stevenson v R [2022] NSWCCA 133 at [62]–[67].
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See also Child sexual offence evidence program (CSOEP) resource page on the Judicial Information Research System (available to District Court judges and their associates only).
[5-430] Child Sexual Assault List — procedure
The procedure for child sexual offence matters progressing in the NSW District Court is contained in Criminal Practice Note 28.
Div 1A of the Criminal Procedure Act applies to prescribed sexual offences involving child complainants (under 18 years of age at date of committal). All such matters that are committed from the Local Court to the District Court for trial enter the Child Sexual Assault List. All case management is administered from this List.
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Callover
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Ground rules hearing
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Pre-recorded evidence hearing
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Balance of trial
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