Under the NSW Child Sexual Offence Evidence Program Scheme all cases of sexual offending involving a complainant under the age of 18 in Sydney and Newcastle are part of a separately managed list with its own procedures and specialised judges. It is important to understand the ways in which the Child Sexual Assault List operates differently from other matters.
The Child Sexual Offence Evidence Program Scheme (‘the Program’) commenced on 31 March 2016, in the Sydney District Court (Downing Centre) and Newcastle District Court. It introduced several special measures:
- Witness intermediaries to assess children’s needs and communication capacities;
- Pre-recorded evidence hearings for child complainants and witnesses prior to the balance of the trial; and
- Specialist District Court Judges trained in the management of child sexual assault matters.
From 6 August 2019, all prescribed sexual offences (s 3 CP Act) committed for trial from the Local Court to the Downing Centre District Court, where the complainant is under 18 at the time of committal for trial, became part of the Program. These matter are listed for arraignment and case management call over on a Monday at 9.15am, no later than 14 days after committal for trial. The list is known as the Child Sexual Assault List and is managed separately from the general arraignments list by judges who are part of the Program.
For matters in the Child Sexual Assault List, the Judge will set a timetable for the filing of the Prosecutor’s Notice (s 142 of the CP Act), the Defence Response (s 143 of the CP Act) and the Prosecutor’s Response to the Defence Response (s 144 of the CP Act). The timetable is cognisant of the legislation affirming that pre-recorded hearings are to be “held as soon as practicable” after the first appearance in court: s 85(1). The Court will expect the Prosecution to present an indictment in accordance with s 129 of the CP Act (within 4 weeks of committal for trial) and with an expectation that an indictment be filed in court as soon as possible after committal.
The Court will set a ground rule hearing date (GRH), a pre-recorded evidence date (PRH) and fix a trial date for the balance of the trial. A GRH concerns the provision of information to the Court about how counsel should question the witness to elicit reliable evidence. For example, by not allowing tag questions or negative suggestive statements. Witness intermediaries, who are officers of the Court, are appointed to assist the parties and the Court prior to and during a GRH and then during a PRH to communicate with child complainants. Their role includes explaining questions to, and the answers of, child complainants (ss 88-90).
Pre-recorded evidence hearings are conducted where oral evidence in chief, cross-examination and re-examination is recorded before specific judges who run the Program. The child gives evidence from a remote witness room in the presence of a witness intermediary, support person and court officer. The only people in the court room are the Judge, defence counsel, defendant and prosecution. There is no jury. The recorded evidence is then played to the jury at the later trial. These hearings are different from conventional trials and attempts to dispense with the usual formality of court where possible. For example, Judges and legal personal often forgo their robes and wigs and different rules of questioning can apply.
The Crown is expected to provide the Court with a copy of the indictment, Crown Case Statement, s 142 Notice and s 143 Notice, JIRT interviews, discs and exhibits at least 2 weeks prior to the PRH. There is also an expectation that representatives for both the Crown and Defence appearing at the pre-recorded hearing will continue as representatives in the balance of the trial. A witness who gives evidence at a PRH cannot give further evidence without the leave of the Court (s 87).
This blog is intended to provide general information about matters that come before the court and is not legal advice. If you are charged with sexual offending involving a child, please reach out to us and speak to one of our lawyers on (02) 9696 1361 (Sydney) or (02) 5104 9640 (Canberra) or by email at firstname.lastname@example.org
Rebecca Kriesler, Lawyer