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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
LEGISLATIVE COUNCIL
Acts Amendment (Video and Audio Links)
Bill 1998
A Bill for
An Act to amend:
• The Criminal Code;
• the Evidence Act 1906;
• the Justices Act 1902; and
• the Sentencing Act 1995.
The Parliament of Western Australia enacts as follows:
15--1
Acts Amendment (Video and Audio Links) Bill 1998
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Acts Amendment (Video and Audio
Links) Act 1998.
5 2. Commencement
This Act comes into operation on such day as is fixed by
proclamation.
3. Power to use certain technology not affected
(1) Nothing in the amended provisions is to be taken as preventing
10 the use by a court or other person acting judicially of a video link
or audio link (as those terms are defined in section 121 of the
Evidence Act 1906) in any case where the court or person thinks
fit and where the use of the video link or audio link would not be
contrary to law.
15 (2) In subsection (1) --
"amended provisions" means --
(a) The Criminal Code;
(b) the Evidence Act 1906;
(c) the Justices Act 1902; and
20 (d) the Sentencing Act 1995,
as amended by this Act.
page 2
Acts Amendment (Video and Audio Links) Bill 1998
The Criminal Code amended Part 2
s. 4
Part 2 -- The Criminal Code amended
4. The Act amended
The amendments in this Part are to The Criminal Code*.
[* Reprinted as at 21 April 1997 as the Schedule to the
5 Criminal Code Act 1913 appearing in Appendix B to the
Criminal Code Compilation Act 1913.
For subsequent amendments see 1997 Index to Legislation of
Western Australia, Table 1, p. 58 and Acts Nos. 15 and 29
of 1998.]
10 5. Section 635 amended
Section 635 is amended by inserting after the third paragraph the
following paragraph --
"
Nothing in this section prevents a court from taking
15 evidence from an accused person by video link or audio
link under section 121 of the Evidence Act 1906.
".
6. Section 647 inserted
After section 646 the following section is inserted --
20 "
647. Video link may be used
(1) If --
(a) a person is committed for trial or sentence
before any court for an indictable offence;
25 (b) the person is in custody, whether in relation to
the offence or not; and
page 3
Acts Amendment (Video and Audio Links) Bill 1998
Part 2 The Criminal Code amended
s. 6
(c) a video link or other device exists whereby, at
the same time, the court in one place can see
and hear the person in another place and vice
versa,
5 the court may, instead of ordering that the person be
brought personally before the court, order that the
person be brought before the video link or other device.
(2) The court may make an order under subsection (1) on
its own initiative or on the application of a party to the
10 proceeding.
".
page 4
Acts Amendment (Video and Audio Links) Bill 1998
Evidence Act 1906 amended Part 3
s. 7
Part 3 -- Evidence Act 1906 amended
7. The Act amended
The amendments in this Part are to the Evidence Act 1906*.
[* Reprinted as at 10 September 1996.
5 For subsequent amendments see 1997 Index to Legislation of
Western Australia, Table 1, p. 79 and Act No. 15 of 1998.]
8. Section 106N amended
Section 106N(2)(a) and (b) is amended by deleting "closed
circuit television" in both places where it occurs and inserting
10 instead --
" video link as defined in section 120 ".
9. Headings and sections 120 to 132 inserted
After section 119 the following headings and sections are
inserted --
15 "
Interpretation of sections 120 to 132
120. Interpretation
(1) In this section and sections 121 to 132, unless the
contrary intention appears --
20 "audio link" means facilities (including telephone) that
enable, at the same time, a court at one place to
hear a person giving evidence or making a
submission at another place and vice versa;
page 5
Acts Amendment (Video and Audio Links) Bill 1998
Part 3 Evidence Act 1906 amended
s. 9
"Australia" includes the Territories of the
Commonwealth (whether internal or external)
for the government of which as a Territory
provision is made by any Commonwealth Act;
5 "participating jurisdiction" means --
(a) another State or a Territory in which provisions
of an Act in terms substantially corresponding
to this section and sections 121 to 132, are in
force; or
10 (b) any other jurisdiction outside the State
prescribed to be a participating jurisdiction;
"recognized court" means a court or tribunal of a
participating jurisdiction --
(a) that is authorized by the provisions of an Act of
15 that jurisdiction in terms substantially
corresponding to this section and sections 121
to 132 to direct that evidence be taken or a
submission be made by video link or audio link
from this State; or
20 (b) that is prescribed to be a recognized court;
"tribunal" of a State or Territory means a person or
body authorized by or under a law of the State
or Territory to take evidence on oath or
affirmation;
25 "video link" means facilities (including closed circuit
television) that enable, at the same time, a court
at one place to see and hear a person giving
evidence or making a submission at another
place and vice versa;
page 6
Acts Amendment (Video and Audio Links) Bill 1998
Evidence Act 1906 amended Part 3
s. 9
"WA court" means --
(a) the Supreme Court; or
(b) a court or tribunal established in this State under
a written law.
5 (2) In this section and sections 121 to 132, a reference to a
place outside the State shall be taken to refer to a place
outside the State whether within or outside Australia.
Use of video links or audio links by WA courts
121. WA court may take evidence or receive a
10 submission by video link or audio link
(1) Subject to this section, a WA court may, on its own
initiative or on the application of a party to a
proceeding in or before the court, direct that in that
proceeding evidence be taken or a submission be
15 received by video link or audio link from a person at a
place, whether in or outside this State, that is outside
the courtroom or other place where the court is sitting.
(2) The court shall not make such a direction unless the
court is satisfied that --
20 (a) the video link or audio link is available or can
reasonably be made available; and
(b) the direction is in the interests of justice.
(3) For the purposes of taking evidence or receiving a
submission by video link or audio link from a place in
25 this State in accordance with such a direction, the place
shall be taken to be part of the court.
page 7
Acts Amendment (Video and Audio Links) Bill 1998
Part 3 Evidence Act 1906 amended
s. 9
(4) For the purposes of taking evidence or receiving a
submission by video link or audio link from a place in a
participating jurisdiction, the court may exercise in that
place any of its powers that the court is permitted,
5 under the law of the jurisdiction, to exercise in that
place.
122. Counsel entitled to practise
Despite section 76(1) of the Legal Practitioner's
Act 1893, a person who is entitled to practise as a legal
10 practitioner in a participating jurisdiction is entitled to
practise as a barrister, solicitor or both --
(a) in relation to the examination,
cross-examination or re-examination of a
witness in the participating jurisdiction whose
15 evidence is being given by video link or audio
link before a WA court; and
(b) in relation to the making of a submission by
video link or audio link from the participating
jurisdiction in a proceeding before a WA court.
20 Use of video links or audio links in this State by
recognized courts
123. Recognized court may take evidence or receive a
submission from a person in this State
A recognized court may, for the purposes of a
25 proceeding in or before it, take evidence or receive a
submission by video link or audio link from a person in
this State.
page 8
Acts Amendment (Video and Audio Links) Bill 1998
Evidence Act 1906 amended Part 3
s. 9
124. Powers of a recognized court
(1) For the purposes of the proceeding the recognized
court may exercise in this State any of its powers in
relation to the taking of evidence or the receipt of a
5 submission except its powers --
(a) to punish for contempt; and
(b) to enforce or execute its orders or process.
(2) The laws of the participating jurisdiction (including
rules of court) that apply to the proceeding in that
10 jurisdiction also apply, by force of this subsection, to
the practice and procedure of the recognized court in
taking evidence or receiving a submission by video link
or audio link from a person in this State.
(3) For the purposes of the court exercising its powers
15 under subsection (1), the place in this State where the
evidence is given or the submission is made shall be
taken to be part of the court.
125. Orders made by a recognized court
Without limiting section 124, the recognized court may,
20 by order --
(a) direct that the proceeding, or a part of the
proceeding, be conducted in private;
(b) require a person to leave a place in this State
where the giving of evidence or the making of a
25 submission is taking place or is going to take
place; or
(c) prohibit or restrict the publication of evidence
given in the proceeding or of the name of a
party to, or a witness in, the proceeding.
page 9
Acts Amendment (Video and Audio Links) Bill 1998
Part 3 Evidence Act 1906 amended
s. 9
126. Enforcement of an order under section 125
(1) An order under section 125 shall be complied with.
(2) Subject to rules of court, the order may be enforced by
the Supreme Court as if the order were an order of that
5 court.
(3) Without limiting subsection (2), a person who
contravenes the order --
(a) shall be taken to be in contempt of the Supreme
Court; and
10 (b) is punishable accordingly,
unless the person establishes that the contravention
should be excused.
127. Privileges, protection and immunity of participants
in proceedings in a recognized court
15 (1) A person acting judicially in a proceeding in or before a
recognized court has, in connection with evidence being
taken or a submission being received by video link or
audio link from a person in this State, the same
privileges, protection and immunity as a judge of the
20 Supreme Court.
(2) A person appearing as a legal practitioner in a
proceeding in or before a recognized court has, in
connection with evidence being taken or a submission
being received by video link or audio link from a person
25 in this State, the same protection and immunity as a
barrister has in appearing for a party in a proceeding, in
or before the Supreme Court.
page 10
Acts Amendment (Video and Audio Links) Bill 1998
Evidence Act 1906 amended Part 3
s. 9
(3) A person appearing as a witness in a proceeding in or
before a recognized court by video link or audio link
from this State has the same protection as a witness in a
proceeding in or before the Supreme Court.
5 128. Recognized court may administer an oath in
the State
(1) A recognized court may, for the purpose of obtaining in
the proceeding by video link or audio link the testimony
of a person in this State, administer an oath or
10 affirmation in accordance with the practice and
procedure of the recognized court.
(2) Evidence given by a person on oath or affirmation so
administered is, for the purposes of The Criminal Code,
testimony given in a judicial proceeding.
15 129. Assistance to a recognized court
An officer of a WA court may, at the request of a
recognized court --
(a) attend at the place in the State where evidence
is to be or is being given, or submissions are to
20 be or are being made, in the proceeding;
(b) take such action as the recognized court directs
to facilitate the proceeding; and
(c) assist with the administering by the recognized
court of an oath or affirmation.
page 11
Acts Amendment (Video and Audio Links) Bill 1998
Part 3 Evidence Act 1906 amended
s. 9
130. Contempt of a recognized court
(1) A person shall not, while evidence is being given or a
submission is being made in this State by video link or
audio link, in the proceeding in a recognized court --
5 (a) threaten, intimidate or wilfully insult any of the
following:
(i) a person acting judicially in the
proceeding;
(ii) a Master, Registrar, Deputy Registrar or
10 other officer of that court who is taking
part in or assisting in the proceeding;
(iii) a person appearing in the proceeding as
a legal practitioner;
(iv) a witness in the proceeding; or
15 (v) a juror in the proceeding;
(b) wilfully interrupt or obstruct the proceeding; or
(c) wilfully and without lawful excuse disobey an
order or direction of the court.
(2) A person who contravenes subsection (1) is taken to
20 commit a contempt of the Supreme Court and is
punishable accordingly by that court.
page 12
Acts Amendment (Video and Audio Links) Bill 1998
Evidence Act 1906 amended Part 3
s. 9
General provisions relating to the use of video links or
audio links
131. Regulations for fees and expenses relating to the use
of a video link or an audio link
5 The Governor may make regulations with respect to
fixing and requiring the payment of fees and expenses
relating to the taking of evidence or receiving of a
submission by video link or audio link.
132. Operation of other laws
10 Sections 120 to 132 are not intended to exclude or limit
the operation of any other law of the State that makes
provision for the taking of evidence or making of a
submission --
(a) in the State for the purpose of a proceeding in
15 the State;
(b) outside the State for the purpose of a
proceeding in the State; and
(c) in the State for the purpose of a proceeding
outside the State.
20 ".
page 13
Acts Amendment (Video and Audio Links) Bill 1998
Part 4 Justices Act 1902 amended
s. 10
Part 4 -- Justices Act 1902 amended
10. The Act amended
The amendments in this Part are to the Justices Act 1902*.
[* Reprinted as at 4 June 1997.
5 For subsequent amendments see 1997 Index to Legislation of
Western Australia, Table 1, p. 122 and Act No. 29 of 1998.]
11. Section 86A amended
(1) Section 86A (1) is amended by deleting "is may," and inserting
instead --
10 " is shall, unless an order is made under subsection (2), ".
(2) Section 86A(2) is amended by inserting after "The justices
may" --
"
, on their own initiative or on the application of a party
15 to the proceeding,
".
page 14
Acts Amendment (Video and Audio Links) Bill 1998
Sentencing Act 1995 Part 5
s. 12
Part 5 -- Sentencing Act 1995
12. The Act amended
The amendments in this Part are to the Sentencing Act 1995*.
[* Act No. 76 of 1995.
5 For subsequent amendments see 1997 Index to Legislation of
Western Australia, Table 1, pp. 211-12 and Acts Nos. 23 and
29 of 1998.]
13. Section 14 amended
Section 14(1) is amended by deleting the full stop and inserting
10 instead --
"
or appears before the court by video link under
section 14A.
".
15 14. Section 14A inserted
After section 14 the following section is inserted --
"
14A. Court may sentence by video link
(1) A court sentencing an offender may, on its own
20 initiative or on an application by the prosecutor or the
offender, direct that the offender appear before it by
video link from a place in this State.
page 15
Acts Amendment (Video and Audio Links) Bill 1998
Part 5 Sentencing Act 1995
s. 15
(2) The court shall not make a direction under
subsection (1) unless it is satisfied that --
(a) the video link is available or can reasonably be
made available; and
5 (b) the direction is in the interests of justice.
(3) The place where an offender attends for sentencing by
video link is taken to be part of the court for the
purposes of the sentencing.
(4) In this section --
10 "video link" means facilities (including closed circuit
television) that enable, at the same time, a court
at one place to see and hear a person at another
place and vice versa.
".
15 15. Section 34 amended
Section 34 is amended by inserting after "present in court" --
"
or appearing before the court by video link under
section 14A
20 ".
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