Excerpts from Legislation

Mental Health (Criminal Procedure) Act 1990 (NSW)

PART 3 - SUMMARY PROCEEDINGS BEFORE A MAGISTRATE RELATING TO PERSONS AFFECTED BY MENTAL DISORDERS

31. (1) This Part applies to criminal proceedings in respect of summary offences or indictable offences triable summarily, being proceedings before a Magistrate, but does not apply to committal proceedings.

(2) Sections 32 and 33 apply to the condition of a defendant as at the time when a Magistrate considers whether to apply the relevant section to the defendant.

Persons suffering from mental illness or condition

32. (1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:

(a) that the defendant is developmentally disabled, is suffering from mental illness or is suffering from a mental condition for which treatment is available in a hospital, but is not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990; and

(b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law, the Magistrate may take the action set out in subsection (2) or (3).

(a) adjourn the proceedings;

(b) grant the defendant bail in accordance with the Bail Act 1978;

(c) make any other order that the Magistrate considers appropriate.

(a) into the care of a responsible person, unconditionally or subject to conditions; or

(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant’s mental condition or treatment or both; or

(c) unconditionally.

Mentally ill persons

33. (1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate that the defendant is a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990, the Magistrate (without derogating from any other order the Magistrate may make in relation to the defendant, whether by way of adjournment, the granting of bail in accordance with the Bail Act 1978 or otherwise):

(a) may order that the person be taken by a member of the Police Force to, and be detained in, a hospital for assessment; or

(b) may discharge the defendant, unconditionally or subject to conditions, into the care of a responsible person.

(a) may order that the defendant be taken by a police officer to, and detained in, a hospital for assessment; or

(b) may order that the defendant be taken by a police officer to, and detained in, a hospital for assessment and that, if the defendant is found on assessment at the hospital not to be a mentally ill person or mentally disordered person, the person be brought by a police officer back before the court; or

(c) may discharge the defendant, unconditionally or subject to conditions, into the care of a responsible person.

(2) If a defendant is dealt with at the commencement or at any time during the course of the hearing of proceedings before a Magistrate in accordance with this section, the charge which gave rise to the proceedings, on the expiration of the period of 6 months after the date on which the defendant is so dealt with, is to be taken to have been dismissed unless, within that period, the defendant is brought before a Magistrate to be further dealt with in relation to the charge.

(3) If a defendant is brought before a Magistrate to be further dealt with in relation to a charge as referred to in subsection (2), the Magistrate must, in dealing with the charge, take account of any period during which the defendant was in a hospital as a consequence of an order made under this section.

(4) The fact that charges are to be taken to have been dismissed under subsection (2) does not constitute a finding that the charges against the defendant are proven or otherwise.

*(5) The regulations may prescribe the form of an order under this section.

*The amendments marked in bold were inserted by the Mental Health (Amendment) Act 1994 (NSW), which at 31 August 1994, had not yet been proclaimed.

Evidence Bill 1993 (NSW)

CHAPTER 2 - ADDUCING EVIDENCE

PART 2.1 - WITNESSES

11. Except as otherwise provided by this Act:

(a) every person is competent to give evidence; and

(b) a person who is competent to give evidence about a fact is compellable to give that evidence.

Competence: lack of capacity [cl 13 of the Cth Bill]

12. (1) A person who is incapable of understanding that, in giving evidence, he or she is under an obligation to give truthful evidence is not competent to give sworn evidence.

(2) A person who because of subsection (1) is not competent to give sworn evidence is competent to give unsworn evidence if:

(a) the court is satisfied that the person understands the difference between the truth and a lie; and

(b) the court tells the person that it is important to tell the truth; and

(c) the person indicates, by responding appropriately when asked, that he or she will not tell lies in the proceeding.

(3) A person who is incapable of giving a rational reply to a question about a fact is not competent to give evidence about the fact, but may be competent to give evidence about other facts.

(4) A person is not competent to give evidence about a fact if:

(a) the person is incapable of hearing or understanding, or of communicating a reply to, a question about the fact; and

(b) that incapacity cannot be overcome.

(5) It is to be presumed, unless the contrary is proved, that a person is not incompetent because of this section.

(6) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.

(7) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit.

Court’s control over questioning of witnesses [cl 26 of the Cth Bill]

27. The court may make such orders as it considers just in relation to:

(a) the way in which witnesses are to be questioned; and

(b) the production and use of documents and things in connection with the questioning of witnesses; and

(c) the order in which parties may question a witness; and

(d) the presence and behaviour of any person in connection with the questioning of witnesses.

Manner and form of questioning witnesses and their responses [cl 29 of the Cth Bill]

30. (1) A party may question a witness in any way the party thinks fit, except as provided by this Chapter or as directed by the court.

(2) A witness may give evidence wholly or partly in narrative form if:

(a) the party that called the witness has applied to the court for a direction that the witness give evidence in that form; and

(b) the court so directs.

(3) Such a direction may include directions about the way in which evidence is to be given in that form.

(4) ...

(5) ...

Interpreters [cl 30 of the Cth Bill]

31. A witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact.

Deaf and mute witnesses [cl 31 of the Cth Bill]

32. (1) A witness who cannot hear adequately may be questioned in any appropriate way.

(2) A witness who cannot speak adequately may give evidence by any appropriate means.

(3) The court may give directions concerning either or both of the following:

(a) the way in which a witness may be questioned under subsection (1);

(b) the means by which a witness may give evidence under subsection (2).

(4) This section does not affect the right of a witness to whom this section applies to give evidence about a fact through an interpreter under section 31.

42. (1) The court may disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the question is:

(a) misleading; or

(b) unduly annoying, harassing, intimidating, offensive, oppressive or repetitive.

(2) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account:

(a) any relevant condition or characteristic of the witness, including age, personality and education; and

(b) any mental, intellectual or physical disability to which the witness is or appears to be subject.

Leading questions [cl 42 of the Cth Bill]

43. (1) A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it.

(2) Without limiting the matters that the court may take into account in deciding whether to disallow the question or give such a direction, it is to take into account the extent to which:

(a) evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness; and

(b) the witness has an interest consistent with an interest of the cross-examiner; and

(c) the witness is sympathetic to the party conducting the cross-examination, either generally or about a particular matter; and

(d) the witness’s age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness’s answers.

(3) The court is to disallow the question, or direct the witness not to answer it, if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used.

(4) This section does not limit the court’s power to control leading questions.

[Note: “Leading question” is defined in the Dictionary, which is set out at the end of the Bill as meaning a question asked of a witness that:

(a) directly or indirectly suggests a particular answer to the question; or

(b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked.]

PART 4.4 - CORROBORATION

163. (1) It is not necessary that evidence on which a party relies be corroborated.

(2) Subsection (1) does not affect the operation of a rule of law that requires corroboration with respect to the offence of perjury or a similar or related offence.

(3) Despite any rule, whether of law or practice, to the contrary, but subject to the other provisions of this Act, if there is a jury, it is not necessary that the judge:

(a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect; or

(b) give a direction relating to the absence of corroboration.

PART 4.5 - WARNINGS

164. (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:

(a) evidence in relation to which Part 3.2 (Hearsay Evidence) or 3.4 (Admissions) applies;

(b) identification evidence;

(c) evidence the reliability of which may be affected by age, ill-health (whether physical or mental), injury or the like;

(d) evidence given in a criminal proceeding by a witness called by the prosecutor, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;

(e) oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant;

(f) in a proceeding against the estate of a deceased person - evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive.

(2) If there is a jury and a party so requests, the judge is to:

(a) warn the jury that the evidence may be unreliable; and

(b) inform the jury of matters that may cause it to be unreliable; and

(c) warn the jury of the need for caution in deciding whether to accept the evidence and the weight to be given to it.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in giving the warning or information.

(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.

Crimes Act 1900 (NSW)

405D.(1) In any criminal proceedings in which it is alleged that the accused person has committed a prescribed sexual offence on a child, the court may, on the application of the prosecution, make an order permitting the child’s evidence to be given by means of closed-circuit television facilities.

(2) If the court is not equipped with closed-circuit television facilities or it otherwise considers it appropriate to do so, the court may, for the purpose of permitting the child’s evidence to be given by means of such facilities, adjourn the proceedings or any part of them to a court that is equipped with such facilities.

(2A) If, pursuant to an order under subsection (1), a child’s evidence is permitted to be given from other premises:

(a) the court may also order a court officer to be present at those other premises, or any other person to be present with the child as a support or interpreter, or both; and

(b) those other premises are taken to be part of the court in which the proceedings are being held.

(3) An order may only be made under subsection (1) if the court is satisfied:

(a) that it is likely that the child would suffer mental or emotional harm if required to give evidence in the ordinary way; or

(b) that it is likely that the facts would be better ascertained if the child’s evidence is given in accordance with such an order.

(4) The court may vary or revoke an order made under this section, either of its own motion or on application by a party to the proceedings.

(5) In this section, “child”, in relation to any proceedings, means a child under the age of 16 years at the time that the child is giving evidence in the proceedings.

Use of closed-circuit television facilities

405E.(1) Closed-circuit television facilities used for the giving of evidence by a child are to be operated in such a manner that the persons who have an interest in the proceedings are able to see the child (and any person present with the child) on the same or another television monitor.

(2) The Governor may make regulations for or with respect to the use of closed-circuit television facilities for the giving of evidence by children in accordance with an order made under section 405D.

(3) Rules of court may (subject to the regulations) also make provision for or with respect to the use of closed-circuit television facilities for the giving of evidence by children in accordance with an order made under section 405D.

Alternative arrangements for child victim’s evidence

405F. (1) In any criminal proceedings in which it is alleged that the accused person has committed a personal assault offence on a child, the court may, of its own motion or on the application of the prosecution, direct alternative arrangements to be made for the giving of evidence by the child.

(2) Without limiting the generality of subsection (1), the following alternative arrangements may be directed to be made:

(a) seating arrangements for persons who have an interest in the proceedings (including the level at which they are seated and the persons in the child’s line of vision);

(b) the use of screens;

(c) adjournment of the proceedings or any part of the proceedings to other premises.

(2A) Any premises to which proceedings are adjourned for the purposes of subsection (2) are taken to be part of the court in which the proceedings are being held.

(3) The court may vary or revoke a direction made under this section, either of its own motion or on application by a party to the proceedings.

(4) Nothing in this section limits any discretion that a court has with respect to the conduct of proceedings in any case.

(5) In this section:

“child”, in relation to any proceedings, means a child under the age of 16 years at the time that the child is giving evidence in the proceedings;

“personal assault offence” means an offence under:

(a) Part 3; or

(b) section 25 of the Children (Care and Protection) Act 1987,

or an offence of attempting, or of conspiracy or incitement, to commit such an offence (but does not include any offence exempted from this section by the regulations).

405G. [Repealed]

Warning to jury

405H.(1) In any criminal proceedings in which the evidence of a child is given by means of closed-circuit television facilities, the Judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of those facilities.

(2) In any criminal proceedings in which alternative arrangements for the giving of evidence by a child are directed to be made under section 405F, the Judge must warn the jury not to draw any inference adverse to the accused person or give the evidence any greater or lesser weight because of the use of those alternative arrangements.

Validity of proceedings not affected

405I. The failure of a child to give evidence in accordance with an order made under section 405D or a direction made under section 405F does not affect the validity of the proceedings or any decision made in connection with those proceedings.