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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Evidence (Audio and Audio Visual
inks) Amendment Bill 2001
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Evidence (Audio and Audio Visual Links)
Act 1998 No 105 2
4 Repeal of Part 7A of the Supreme Court Act 1970 No 52 2
Schedule 1 Amendments 3
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2001
New South Wales
Evidence (Audio and Audio Visual
inks) Amendment Bill 2001
Act No , 2001
An Act to amend the Evidence (Audio and Audio Visual Links) Act 1998 to make
further provision with respect to the appearance of accused detainees by audio
visual links in certain criminal proceedings; to make a consequential amendment
to the Supreme Court Act 1970; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill as
finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Evidence (Audio and Audio Visual Links) Amendment Bill 2001
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Evidence (Audio and Audio Visual Links) Amendment
Act 2001.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Evidence (Audio and Audio Visual Links) Act 1998
No 105
The Evidence (Audio and Audio Visual Links) Act 1998 is amended as
set out in Schedule 1.
4 Repeal of Part 7A of the Supreme Court Act 1970 No 52
The Supreme Court Act 1970 is amended by omitting Part 7A (Use of
video link facilities).
Page 2
Evidence (Audio and Audio Visual Links) Amendment Bill 2001
Amendments Schedule 1
Schedule 1 Amendments
(Section 3)
[1] Section 3 Interpretation
Insert in alphabetical order in section 3 (1):
accused detainee means a person (other than a child) who is
being held in custody in a correctional centre, police station or
other place of detention and includes, in relation to a
proceeding for a summary offence, a defendant.
preliminary criminal proceeding means any of the following
criminal proceedings:
(a) any proceeding relating to bail (other than a proceeding
relating to bail referred to in paragraph (f) of the
definition of relevant criminal proceeding),
(b) where a person has previously been remanded in
custody, any subsequent proceeding with respect to the
remand of the person in custody for the same offence,
(c) any interlocutory proceeding held in connection with
any criminal proceeding,
(d) without limiting paragraph (c), any application for an
adjournment,
(e) any arraignment on a day other than the day appointed
for the trial of a person.
relevant criminal proceeding means any of the following
criminal proceedings:
(a) any committal proceeding,
(b) any inquiry into a person's unfitness to be tried for an
offence,
(c) any trial (including an arraignment on the day appointed
for the trial) or hearing of charges,
(d) any sentencing hearing (including a redetermination of
sentence),
(e) any hearing of an appeal arising out of a trial or hearing,
Page 3
Evidence (Audio and Audio Visual Links) Amendment Bill 2001
Schedule 1 Amendments
(f) any proceeding relating to bail:
(i) brought before a Magistrate or justice in respect
of the period between a person being charged
with an offence and the person's first appearance
before a court in relation to the offence, or
(ii) on a person's first appearance before a court in
relation to an offence.
[2] Section 3 (2)
Insert "(other than Part 1B)" after "Act".
[3] Section 3 (3)
Omit the subsection.
[4] Section 3A
Insert after section 3:
3A Appearances and entitlements to be present before courts
(1) A requirement by or under any other Act that a person appear
(or be brought or be present) before a court is taken to be
satisfied if the person appears before the court by way of an
audio link or audio visual link under this Act.
Note. Part 1B of this Act contains provisions with respect to the
appearance by audio visual link of accused detainees who are in custody
in preliminary criminal proceedings and relevant criminal proceedings.
(2) Any entitlement of a person under any other Act or law for a
person to be present in proceedings before a court concerning
bail is taken to be satisfied if audio visual links are used in
relation to the person under this Act.
[5] Section 5 Application of Act
Omit "Part 7A of the Supreme Court Act 1970" from the note to
section 5 (1A).
Insert instead "Part 4 of the Evidence (Children) Act 1997".
[6] Section 5 (3)
Omit "Part 1A". Insert instead "Part 1A or 1B".
Page 4
Evidence (Audio and Audio Visual Links) Amendment Bill 2001
Amendments Schedule 1
[7] Section 5 (5) and (6)
Insert after section 5 (4):
(5) Part 1B extends to any preliminary criminal proceeding or
relevant criminal proceeding pending in a NSW court on the
commencement of this subsection.
(6) Section 27 of the Children (Criminal Proceedings) Act 1987
does not apply Part 1B of this Act (to the extent that it relates
to the functions of Local Courts, Magistrates or justices in
criminal proceedings) to the Children's Court or any
proceedings before the Children's Court.
[8] Section 5B Taking evidence and submissions from outside courtroom
or place where court is sitting--proceedings generally
Omit "Subject to any applicable rules of court, a NSW court may, on the
application of a party to a proceeding before the court" from section 5B (1).
Insert instead "Subject to any applicable rules of court and subsection (2A),
a NSW court may, either on its own motion in, or on the application of a
party to, a proceeding before the court".
[9] Section 5B (2) (c)
Omit "by a party opposing the making of the direction".
[10] Section 5B (2A)
Insert after section 5B (2):
(2A) A court must not make such a direction in relation to the giving
of evidence or making of a submission by audio visual link by
any accused detainee in any preliminary criminal proceeding or
relevant criminal proceeding concerning the offence in respect
of which he or she is in custody. However, this subsection does
not prevent the making of such a direction in relation to an
accused detainee in any other proceeding to which this Part
applies.
Note. Part 1B of this Act contains provisions with respect to the
appearance of accused detainees who are in custody in preliminary
criminal proceedings and relevant criminal proceedings.
Page 5
Evidence (Audio and Audio Visual Links) Amendment Bill 2001
Schedule 1 Amendments
[11] Part 1B
Insert after section 5B:
Part 1B Use of audio visual links within places in
NSW for appearances of accused
detainees in proceedings in NSW courts
5BA Appearances of accused detainee by audio visual link in
preliminary criminal proceedings
(1) An accused detainee who is required to appear (or be brought
or be present) before a NSW court in any preliminary criminal
proceedings concerning the offence for which the detainee is in
custody:
(a) must, unless the court otherwise directs, appear before
the court by audio visual link from any place within
New South Wales at which the accused detainee is in
custody other than the courtroom or place at which the
court is sitting, and
(b) may give any evidence or make any submission to the
court by that audio visual link.
Note. accused detainee and preliminary criminal proceeding are
defined in section 3.
(2) Subsection (1) does not apply unless the necessary audio visual
links are available or can reasonably be made available.
(3) The court may make a direction under subsection (1) on its
own motion or on the application of any party to the
proceeding.
(4) The court may make such a direction only if it is satisfied that
it is in the interests of justice for the accused detainee to appear
physically before the court.
Page 6
Evidence (Audio and Audio Visual Links) Amendment Bill 2001
Amendments Schedule 1
5BB Appearances of accused detainee by audio visual link in relevant
criminal proceedings
(1) An accused detainee who is required to appear (or be brought
or be present) before a NSW court in any relevant criminal
proceedings must, unless the court otherwise directs, appear
physically before the court in any relevant criminal proceedings
concerning the offence for which the person is in custody.
Note. accused detainee and relevant criminal proceeding are defined
in section 3.
(2) Subsection (1) does not apply if the parties to the proceeding
consent to the accused detainee appearing before the court by
audio visual link from any place within New South Wales at
which the accused detainee is in custody other than the
courtroom or place where the court is sitting.
(3) The court may make a direction under subsection (1) on its
own motion or on the application of any party to the
proceeding.
(4) The court may make such a direction only if it is satisfied that
it is in the interests of justice for the accused detainee to appear
before the court by audio visual link from a place within New
South Wales at which the person is in custody other than the
courtroom or place where the court is sitting.
5BC Facilities for private communication
Facilities are to be made available for private communication
between an accused detainee appearing by audio visual link
under this Part in a preliminary criminal proceeding or a
relevant criminal proceeding and the person's representative in
the proceeding if the person's representative is at the place
where the court is sitting.
Page 7
Evidence (Audio and Audio Visual Links) Amendment Bill 2001
Schedule 1 Amendments
[12] Part 1C, heading
Insert before section 5C:
Part 1C Provisions applying to Parts 1A and 1B
generally
[13] Section 5C Premises to be considered part of court
Omit "this Part" from section 5C (1). Insert instead "Part 1A or 1B".
[14] Section 5D Administration of oaths and affirmations
Omit "this Part" wherever occurring. Insert instead "Part 1A or 1B".
[15] Section 20F
Insert after section 20E:
20F Directions
A NSW court may at any time vary or revoke a direction given
by it under this Act in a proceeding, either on its own motion
or on application by a party to the proceeding.
[16] Section 22A
Insert after section 22:
22A Savings, transitional and other provisions
Schedule 1 has effect.
Page 8
Evidence (Audio and Audio Visual Links) Amendment Bill 2001
Amendments Schedule 1
[17] Schedule 1
Insert after section 23:
Schedule 1 Savings, transitional and other
provisions
(Section 22A)
1 Regulations
(1) The regulations may contain provisions of a savings or
transitional nature consequent on the enactment of the
following Acts:
the Evidence (Audio and Audio Visual Links) Amendment
Act 2001
(2) Any such provision may, if the regulations so provide, take
effect from the date of assent to the Act concerned or a
later date.
(3) To the extent to which any such provision takes effect from a
date that is earlier than the date of its publication in the
Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other
than the State or an authority of the State), the rights of
that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State
or an authority of the State) in respect of anything done
or omitted to be done before the date of its publication.
Page 9
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