28.141 Chapter 26 noted that some jurisdictions provide that pre-recorded audiovisual evidence of complainants in sexual offence proceedings may be admissible in evidence in a re-trial or appeal.
28.142 Such provisions may also apply to a recording of a complainant’s evidence at trial. For example, the Criminal Procedure Act 2009 (Vic) provides that such a recording ‘is admissible in evidence as if its contents were the direct testimony of the complainant’, including, unless the relevant court otherwise orders, in ‘any new trial of, or appeal from, the proceeding’.
28.143 NSW has introduced broader provisions relating to evidence in re-trials of sexual offence proceedings. The Criminal Procedure Act 1986 (NSW) provides that if a person is convicted of a prescribed sexual offence and, on an appeal against the conviction, a new trial is ordered, the prosecutor may tender as evidence in the new trial ‘a record of the original evidence of the complainant’, despite the rule against hearsay evidence. While the original evidence might include any pre-recorded evidence used in the trial, it covers ‘all evidence given by the complainant in the proceedings from which the conviction arose’, including court transcripts of evidence. If a record of the original evidence of the complainant is admitted in proceedings, the complainant is not compellable to give any further evidence in the proceedings, including for the purpose of any examination in chief, cross-examination or re-examination.
28.144 The problem addressed by the provision was described as being that:
Not surprisingly, some complainants who have given evidence that resulted in a conviction decide they simply cannot return to give evidence again if a new trial is ordered on appeal. Significant time will have passed and the complainant will have tried as best as possible to put the matter out of their mind.
28.145 Similar, but more limited, provisions have been enacted in other jurisdictions. For example, in South Australia, an ‘official record’ of the evidence of a vulnerable witness may be admitted as evidence in later proceedings, at the discretion of the court. Where such evidence is admitted it ‘may relieve the witness, wholly or in part, from an obligation to give evidence in the later proceedings’.
Submissions and consultations
28.146 In the Consultation Paper, the Commissions asked whether federal, state and territory legislation should permit prosecutors to tender a record of the original evidence of the complainant in any re-trial ordered on appeal. The Commissions suggested that such legislation might be modelled on that in NSW.
28.147 Stakeholders who addressed the question generally expressed support for such reform. The National Association of Services Against Sexual Violence noted that such provisions alleviate ‘the need to apply more stress on a victim and re– traumatise them by having to repeat evidence, often years after the event. It prevents them from being able to get on with their lives and can effectively put their lives “on hold” ’. The Women’s Legal Service Queensland noted concerns that, if the jury on re-trial do not see the complainant, re-trials simply using records of the original evidence ‘may just become yet another acquittal’.
28.148 In the Commissions’ view it would be desirable to harmonise federal, state and territory approaches to the use in re-trials, of records of the original evidence of the complainant—including pre-recorded or recorded audiovisual evidence. The NSW legislation, discussed above, provides the most comprehensive model on which to base reform.
28.149 The Commissions note that the SCAG National Working Group on Evidence work is expected to include consideration of using audiovisual records of a witness to give evidence in a re-trial.
Recommendation 28–6 Federal, state and territory legislation should permit prosecutors to tender a record of the original evidence of the complainant in any re-trial ordered on appeal.
 For example, Criminal Procedure Act 1986 (NSW) pt 5 div 3; Criminal Procedure Act 2009 (Vic) s 374.
 Criminal Procedure Act 2009 (Vic) s 379.
 Criminal Procedure Act 1986 (NSW) pt 5 div 3 inserted by the Criminal Procedure Amendment (Evidence) Act 2005 (NSW).
 Criminal Procedure Act 1986 (NSW) s 306B.
 Such as a recording of a police interview: Ibid s 306U.
 Ibid s 306B.
 Ibid s 306C.
 New South Wales, Parliamentary Debates, Legislative Assembly, 3 March 2005, 14649 (B Debus—Attorney General and Minister for the Environment).
 Evidence Act 1929 (SA) s 13D.
 Consultation Paper, Question 18–14.
 For example, National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; C Pragnell, Submission FV 70, 2 June 2010.
 National Association of Services Against Sexual Violence, Submission FV 195, 25 June 2010.
 Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.
 Australian Government Attorney-General’s Department, Submission FV 166, 25 June 2010.