The Criminal Procedure Act 1986 (the Act) makes provision for the following special procedures for domestic violence complainants to give evidence:

In Local Court domestic violence proceedings, the Local Court Domestic and Personal Violence Proceedings Practice Note applies. Its aims include to improve the court experience for participants, and ensure proceedings are conducted in a trauma-informed and culturally respectful manner: para [3(d), (f)].

Where the person giving evidence is also a “vulnerable person” (under Ch 6, Pt 6 of the Act) or an alleged victim of a prescribed sexual offence, special procedures apply in addition to, or instead of, those for domestic violence complainants: see [8-140], [8-145], [8-150].

See also:

A domestic violence complainant is defined in s 3 of the Act as a person against whom the domestic violence offence is alleged to have been committed, but does not include a person who is a vulnerable person within the meaning of Ch 6, Pt 6 of the Act. A domestic violence offence is an offence within the meaning of the Crimes (Domestic and Personal Violence) Act (see ss 4, 5, 11).

Chapter 6, Pt 4B, Div 5 of the Act (ss 289T–289VA) provides for closing the court; alternative means of, and arrangements for, giving evidence; and court appointed questioners for self-represented accused persons. It applies to domestic violence offence proceedings, and apprehended violence order proceedings involving a defendant charged with a domestic violence offence and a protected person who is the alleged victim of the offence: s 289T(1)(a), (b). It also applies in serious domestic abuse prevention order proceedings if the person against whom the order is sought is also charged with a domestic violence offence and the alleged victim of the domestic violence offence is a family member of, former or current intimate partner of, or person in a domestic relationship with an intimate partner of, the person: s 289T(1)(c). The terms “domestic relationship” and “serious domestic abuse prevention order” have the same meanings as in the Crimes (Domestic and Personal Violence) Act, and “family member” and “intimate partner” have the same meanings as in Pt 10A of that Act: s 289T(3).

A domestic violence complainant’s evidence, including a recording, must be given in closed court: s 289U(1). However, if their evidence also relates to a prescribed sexual offence, the media may be permitted access to that part of the proceedings pursuant to s 291C.

Section 289U(4) makes clear that the obligation to close the court when a domestic violence complainant gives evidence applies to:

A complainant’s evidence may only be heard in open court if a party requests and the court is satisfied there are special reasons in the interests of justice, or the complainant consents: s 289U(2). The principle of open justice does not, of itself, constitute special reasons in the interests of justice: s 289U(3).

The court may direct that any other parts of the proceedings, or the entire proceedings, be closed: s 289UA(1). A direction may be made on the court’s own motion or at the request of one of the parties: s 289UA(2). In making such a direction, s 289UA(3) requires the court to consider:

Section 289UA operates in addition to s 289U (see [8-030]): s 289UA(4).

A person may be exempted from a direction under s 289UA to allow them to be present to support a person giving evidence, or for any other purpose the court thinks fit: s 289UA(5).

This section does not affect a complainant’s entitlement to have a support person present when giving evidence under s 306ZQ, or a vulnerable person’s entitlement to have a support person present when giving evidence under s 306ZK (see [8-150]): s 289UA(6).

The Act provides that the evidence of a domestic violence complainant may be given:

The main provisions of the Act governing the form and use of a recorded statement as evidence in proceedings for domestic violence offences are summarised below.

Section 289I(1) of Pt 4B provides that the hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995) do not prevent the admission or use of evidence of a representation in the form of a recorded statement. The operation of the Evidence Act is not affected by the operation of Pt 4B unless a contrary intention is shown: s 289E. Section 289F does not displace the operation of the Evidence Act: s 289F(6). Therefore, where the maker of the recording is not available, s 65 (exception to hearsay rule) Evidence Act is not affected by s 289F(5); see also Director of Public Prosecutions (NSW) v Banks [2019] NSWSC 363 at [40]–[42].

A recorded statement is not admissible unless the defendant was given, in accordance with the service and access requirements of Ch 6 Pt 5 Div 3, a reasonable opportunity to listen to, and, in the case of a video recording, view the recorded statement: s 289I(2).

The court may admit the recorded statement if the Div 3 requirements have not been complied with if:

If a Local Court judge is asked to determine the admissibility of a recorded statement by a domestic violence complainant under s 137 Evidence Act, given the time pressures in the Local Court, a degree of flexibility and informality in terms of conducting a voir dire may be appropriate. However, the minimum requirement is that the judge be aware of the content of the evidence they are being asked to exclude, otherwise the judge is not in a position to assess the probative value of the evidence or the extent to which it might create unfair prejudice: DPP v Nagler [2018] NSWSC 416 at [20]–[22].

If the defendant is represented, a copy of the recorded statement must be served on the Australian legal practitioner representing the defendant as soon as practicable after the proceedings are commenced or the prosecutor determines that evidence will be given in that form, whichever occurs later: s 289L(2).

If the defendant is not represented, only an audio copy of the recorded statement must be served on the defendant soon as practicable after the proceedings are commenced or the prosecutor determines that evidence is to be given in that form, whichever occurs later: s 289M(2). Additionally, s 289M(3) requires the prosecutor to provide the defendant with an opportunity to view a recorded statement that is in the form of a video recording at a police station on at least one of the following occasions:

If compliance with s 289M(3) is not reasonably practicable, the prosecutor must provide the defendant with an opportunity to view the video recorded statement on a day when proceedings relating to the offence are held: s 289M(4).

Section 289M(5) provides that evidence may not be adduced in any proceedings of the behaviour or response of a defendant when viewing a recorded statement at a place specified for that purpose under this section, unless:

Where a defendant is not represented by an Australian legal practitioner, a complainant in domestic violence offence proceedings cannot be directly examined by the defendant, but must instead be examined by a court appointed questioner (CAQ), or through the use of court technology: s 289VA(1), (2).

A CAQ is to ask the complainant only the questions that the defendant requests be put to the complainant, and must not independently give the defendant legal or other advice: s 289VA(4), (5).

The court does not have a discretion to decline to appoint a CAQ or use court technology under s 289VA(2), despite anything to the contrary in s 306ZL (see [8-140] Giving evidence by a domestic violence complainant who is also a vulnerable person) or another Act or law: s 289VA(6).

The requirement in s 289VA(2) applies whether or not the complainant gives evidence via AVL or other similar technology, or other alternative arrangements: s 289VA(7).

Sections 289J–289K, 289VA(8) and 306ZR are concerned with jury trials but may be instructive to judges in evaluating evidence.

If a complainant gives evidence wholly or partly in the form of a recorded statement in proceedings involving a jury, the judge must warn the jury not to draw any inference adverse to the defendant or give the evidence any greater or lesser weight because of the evidence being given in that way: s 289J. This warning also applies when a complainant gives evidence by alternative means or using alternative arrangements, or is examined by a CAQ: ss 289V(5), 289VA(8).

Further, in a trial for a domestic violence offence if it is suggested there was an absence of, or a delay in, complaint of the offence, the judge must warn the jury that there may be good reasons for the delay and it does not necessarily mean the allegation is false, but must not warn them that the delay is relevant to the complainant’s credibility unless there is evidence sufficient to justify such a warning: s 306ZR.

In a jury trial, the court may order that a transcript of all or part of the evidence given in the form of a recorded statement be supplied to the jury if it appears to the court that a transcript would be likely to aid the jury’s comprehension of the evidence: s 289K.

See further Criminal Trial Courts Bench Book at [1-370] Domestic violence proceedings.

Where a domestic violence complainant is a child or cognitively impaired person (that is, a vulnerable person within the meaning of Ch 6, Pt 6 of the Act), the provisions of Pt 6, Div 4 apply, rather than Ch 6, Pt 4B, Div 5 as the definition of a domestic violence complainant specifically excludes a vulnerable person: s 3 (see Evidence from vulnerable persons at [10-000]ff).

Where a domestic violence complainant is the alleged victim of a prescribed sexual offence by the accused person, Ch 6, Pt 5 applies in addition to Ch 6, Pt 4B, Div 5: s 289T(2).

Section 294(3) provides that if a trial relating to sexual offence proceedings also relates to a domestic violence offence committed against the same victim, the judge may also give a warning under s 306ZR, or provide a single warning to address both types of offences. See further in Criminal Trial Courts Bench Book at [1-365] Prescribed sexual offence proceedings.

If a domestic violence complainant’s evidence also relates to a prescribed sexual offence, the media may be permitted access to that part of the proceedings pursuant to s 291C.

Section 306ZQ provides a complainant who gives evidence in domestic violence proceedings is entitled to choose a support person to have in their presence when giving evidence. This provision does not apply to a complainant in prescribed sexual offence proceedings, where s 294C applies instead (see also note in s 306ZQ), nor does it apply to a vulnerable person, given the definition of “domestic violence complainant” in s 3 expressly excludes a vulnerable person.

A vulnerable person is entitled to choose a support person(s) to have in their presence while giving evidence in a range of proceedings: s 306ZK.

A domestic violence complainant who gives evidence in prescribed sexual offence proceedings is entitled to choose a support person(s) to have in their presence when giving evidence: s 294C. This entitlement applies even if the complainant gives evidence by means of closed-circuit television, other technology, or under any alternative arrangements available to the complainant under s 289V, 294B or Ch 6, Pt 6, and even if the proceedings or part thereof in which the complainant gives evidence, are held in camera/closed court: s 294C(2).

If the domestic violence complainant is a vulnerable person when evidence is given in prescribed sexual offence proceedings, s 306ZK applies in addition to s 294C: s 294C(7).