Evidence Act 1929

In proceedings in which a person is charged with a sexual offence, a statement not made in oral evidence in the proceedings (an out of court statement) is admissible as evidence of any matter stated if—

oral evidence given in the proceedings by the person who made the out of court statement would be admissible as evidence of that matter; and

the person who made the out of court statement is identified to the court's satisfaction; and

each of the conditions specified in subsection (2) is satisfied.

The conditions are as follows:

the person who made the out of court statement is the alleged victim of the sexual offence;

the person will not be called as a witness in the proceedings because the judge is satisfied that, at the time the person made the out of court statement, the person was—

a young child; or

a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions;

the out of court statement was not made by the person to an investigating or other authority as part of a formal interview process conducted in relation to the alleged offence;

after considering the out of court statement, the circumstances in which it was made and any other relevant factor, the judge is of the opinion that the evidence has sufficient probative value to justify its admission.

Subsection (2)(b) applies regardless of the age of the person or the person's capacity at the time the judge is considering whether to admit the evidence of the out of court statement in the proceedings.

Evidence of an out of court statement admitted under this section may be used to prove the truth of the facts asserted in the statement.

If evidence of an out of court statement is admitted under this section, the judge must warn the jury to treat the evidence of the out of court statement with particular care because it has not been tested by way of examination or cross‑examination of the alleged victim.