Sexual Offences (Evidence and Procedure) Act 1983

In this Act:

complainant means a person on or against whom a sexual offence is alleged to have been committed.

defendant means a person charged with having committed a sexual offence.

examination of witnesses means an examination of witnesses in relation to a sexual offence, commenced after the commencement of this Act and taken under Part V of the Local Court (Criminal Procedure) Act 1928.

report means an account in writing or an account broadcast by wireless telegraphy in sound or in visual images.

sexual offence means an indictable offence involving:

(e) any other indecent act directed against a person or committed in the presence of a child; or

(f) the making, collection, exhibition or display of an indecent object or indecent material; or

(h) an attempt to commit, an act of procuring, or any other act preparatory to the commission of, any of the above.

trial means a trial of a defendant or a proceeding taken with a view to sentencing a defendant found guilty of a sexual offence which, in either case, is commenced after the commencement of this Act.

Note for section 3

The Interpretation Act 1978 contains definitions and other provisions that may be relevant to this Act.

(1) If the charge of a sexual offence is to be dealt with summarily, the trial must be commenced within 3 months of the matter being first mentioned in court.

(2) If a person is charged with an indictable offence that is a sexual offence, a preliminary investigation under Part V, Division 1 of the Local Court (Criminal Procedure) Act 1928 must be commenced within 3 months of the matter being first mentioned in court.

(3) If the charge of a sexual offence is to be dealt with on indictment, the trial must be commenced within 3 months of the person being committed for trial.

(4) The court in which the person is to be tried, or which is to conduct a preliminary examination (as the case may be) may, if it thinks fit, at any time and despite that the period fixed by subsection (1), (2) or (3) (as the case may be) has expired, grant an extension, not exceeding 3 months, of the period.

(1) In an examination of witnesses or a trial, whether or not it relates also to a charge of an offence other than a sexual offence against the same or another defendant, except with the leave of the court, evidence shall not be elicited or led, whether by examination in chief, cross-examination or re-examination, relating to:

and the leave of the court shall not be granted unless the court is satisfied that the evidence sought to be elicited or led has substantial relevance to the facts in issue.

(2) For the purposes of subsection (1)(b), evidence that relates to or tends to establish the fact that the complainant was accustomed to engage in sexual activities with any other person, shall not be regarded:

(a) as having substantial relevance to the facts in issue by reason only of an inference it may raise as to general disposition; or

(b) as being proper matter for cross-examination as to credit, in the absence of special circumstances by reason of which it would be likely materially to impair the confidence in the reliability of the evidence of the complainant.

(3) For the purposes of subsection (1)(b), and without derogating from the relevance of other evidence in an examination of witnesses or a trial, evidence of an act or event that is substantially contemporaneous with an offence with which a defendant is charged, or that is part of a sequence of acts or events that explain the circumstances in which the alleged offence was committed, shall be regarded as having substantial relevance to the facts in issue.

(4) An application for leave of the court for the purposes of subsection (1)(b) shall be made in the absence of the jury, if any, and, if the defendant so requests, in the absence of the complainant, and shall be determined after the court has allowed such submissions or evidence, given on oath or otherwise, as it considers necessary for the determination of the application.

(5) On the trial of a person for a sexual offence or an assault with intent to commit such an offence:

(a) the Supreme Court Judge shall not warn, or suggest in any way to, the jury that it is unsafe to convict on the uncorroborated evidence of a complainant because the law regards complainants as an unreliable class of witness; and

which tends to suggest that there was delay in making a complaint about the alleged sexual offence, or alleged assault with intent to commit such an offence, by the person against whom the offence is alleged to have been committed, the Supreme Court Judge shall:

(iv) warn the jury that delay in complaining does not necessarily indicate that the allegation is false; and

(v) inform the jury that there may be good reasons why a victim of a sexual offence may hesitate in complaining about it.

(6) Nothing in subsection (5) prevents a judge from making any comment on evidence given in a trial that it is appropriate to make in the interests of justice.

If a defendant cross-examines a complainant through an appointed person, the court must issue a warning to the jury (if any) to the effect that:

(b) no adverse inference is to be drawn against the defendant as a result of the use of the arrangement; and

(c) the evidence of the complainant is not to be given any greater or lesser weight because of the use of the arrangement.

(a) the person intentionally publishes or makes a statement or representation; and

(b) the publication or making of the statement or representation results in the disclosure of any of the following particulars at any time:

(i) the name, address, school or place of employment of a complainant;

(ii) any other particular likely to lead to the identification of a complainant; and

(c) the person is reckless in relation to the result referred to in paragraph (b).

Maximum penalty: 50 penalty units or imprisonment for 6 months.

(2) It is a defence to a prosecution for an offence against subsection (1) if:

(a) no proceeding in relation to the sexual offence that was alleged to have been committed is pending in a court when the statement or representation is published or made; and

(b) the affected complainant or, if there is more than one affected complainant, each affected complainant:

(i) consented in writing to the publication or making of the statement or representation before it was published or made; and

(3) Subsection (1) does not apply to a statement or representation exempted under section 8.

affected complainant means a complainant whose particular referred to in subsection (1)(b) is disclosed as a result of the publication or making of the statement or representation.

capacity, for a person to consent, means the person:

(b) is not incapable of consenting because of mental impairment as defined in section 43A of the Criminal Code.

(a) the person intentionally publishes or makes a statement or representation; and

(b) the statement or representation is published or made before a defendant is committed for trial or sentence on a charge of having committed the sexual offence to which the statement or representation relates; and

(c) the publication or making of the statement or representation results in the disclosure of any of the following particulars:

(ii) any other particular likely to lead to the identification of the defendant; and

(d) the person is reckless in relation to the circumstance referred to in paragraph (b) and the result referred to in paragraph (c).

Maximum penalty: 40 penalty units or imprisonment for 6 months.

(2) Subsection (1) does not apply to a statement or representation exempted under section 8.

(1) For sections 6(3) and 7(2), a statement or representation is exempted if it is published or made:

(a) in a report made verbatim of a judgment or decision delivered in a trial or an appeal proceeding arising from a trial and published in a recognised series of law reports; or

(b) in a report for or to any of the following entities for the purposes of the entity:

(i) the Agency primarily responsible for law and the administration of justice;

(iv) an Agency primarily responsible for health, welfare and community services; or

(c) for an investigation into a complaint made by or on behalf of a complainant; or

(d) for the purposes of preparing for or conducting an examination of witnesses, a trial or an appeal proceeding arising from a trial; or

(e) in accordance with a court order or direction made under section 9.

(2) For section 7(2), a statement or representation is also exempted if:

(a) it is published or made in a report about an examination of witnesses that discloses any particular of a defendant referred to in section 7(1)(c) who, as a result of the examination, is committed for trial or sentence on a charge of having committed a sexual offence; and

(c) it does not disclose any particular of any other defendant who is not committed.