Evidence on re-trial or appeal

Some jurisdictions provide that pre-recorded audio-visual evidence of complainants in sexual offence proceedings may be admissible in evidence in a re-trial or appeal. Such provisions may also apply to a recording of a complainant’s evidence at trial.

NSW has introduced 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 where, on 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.

Section 306C of the Act provides that 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.

The problem addressed by the provision was described by the NSW Attorney-General 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.^[27]

The Commissions are interested in comment on whether Commonwealth, state and territory governments should develop legislation, modelled on that in NSW, to permit prosecutors to tender a record of the original evidence of the complainant in any re-trial ordered on appeal.