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

From 25 November 2020, following commencement of Ch 6, Pt 4B, Div 5 of the Act (Giving of evidence by domestic violence complainants – other provisions), the court should be closed when a domestic violence complainant in domestic violence offence proceedings gives evidence, including when a recording of their evidence is played in court. Division 5 extends the protections available for such witnesses permitting them to give evidence remotely.

Further, from 1 September 2021, in domestic violence offence proceedings where a defendant is self-represented, a complainant cannot be questioned directly in evidence by the defendant, but must be examined through a court appointed questioner, or through the use of court technology.

A recorded video or audio statement of a domestic violence complainant is admissible as evidence in chief in criminal proceedings for domestic violence offences and in concurrent or related proceedings for applications for apprehended domestic violence orders under the Crimes (Domestic and Personal Violence) Act 2007. The recorded video or audio statement may also be used in committal and summary proceedings instead of a written statement.

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 Pt 6 of the Act. A domestic violence offence is an offence within the meaning of the Crimes (Domestic and Personal Violence) Act.

Chapter 6, Pt 4B, Div 5 of the Act (ss 289T–289VA) applies to domestic violence offence proceedings, and also 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.

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 in domestic violence proceedings extends 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).

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

Section 289UA operates in addition to s 289U: 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).

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

For proceedings for domestic violence offences the main provisions in the Criminal Procedure Act are as follows:

Section 289I(1) of Pt 4B provides that the hearsay rule and the opinion rule 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).

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 magistrate is asked to determine the admissibility of a recorded statement by a domestic violence complainant, 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 magistrate be aware of the content of the evidence he or she is being asked to exclude, otherwise the magistrate 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 defendant as soon as practicable after the proceedings commenced or the prosecutor determines that evidence will be given in that form, whichever is 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 the form of the recorded statement, whichever occurs later: s 289M(2). However, s 289M(2) requires the prosecutor to provide the defendant with an opportunity to view a recorded statement in the form of a video recording at a police station on one or more of the following occasions:

If the prosecutor cannot comply with these requirements, 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.

Evidence may not be adduced in any proceedings of the behaviour or response of an 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) and (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) and (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 magistrates in evaluating evidence. If a complainant gives evidence wholly or partly in the form of a recorded statement in proceedings in which there is 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.

The warnings pursuant to ss 289V(5) and 306ZR do not apply to hearings which commenced before 25 November 2020.

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.

Where a domestic violence complainant is a child or cognitively impaired person (that is, a vulnerable person within the meaning of Pt 6 of the Act), the provisions of Pt 6, Div 4 continue to apply as the definition of a domestic violence complainant specifically excludes a vulnerable person: s 3.