Table Of Contents

Evidence (Audio and Audio Visual Links) Amendment Act 2000 No 16

An Act to amend the Evidence (Audio and Audio Visual Links) Act 1998 to make further provision to facilitate the taking of evidence, and the making of submissions, by audio links and audio visual links; and for other purposes.
2   Commencement
This Act commences on a day or days to be appointed by proclamation.
Schedule 1 Amendments
(Section 3)
[1]   Section 3 Interpretation
Insert at the end of the section:
  
(2)  A reference in this Act to making a submission to a court includes a reference to making an appearance before the court.
(3)  A requirement by or under any other Act that a person appear before a court is taken to be satisfied if the person appears before the court by way of an audio link or audio visual link under this Act.
[2]   Section 5 Application of Act
Insert after section 5 (1):
  
(1A)  This Act is not intended to exclude or limit the operation of any other law of the State or another place that makes provision for the taking of evidence or making of submissions in the State for the purposes of a proceeding in the State.
Note—
See, for example, Part 7A of the Supreme Court Act 1970.
[3]   Section 5 (3)
Insert “(other than Part 1A)” after “Act”.
[4]   Section 5 (4)
Insert after section 5 (3):
  
(4)  Part 1A extends to any proceeding pending in a NSW court or court of a place outside New South Wales on the commencement of this subsection.
[5]   Part 1A
Insert after Part 1:
  
Part 1A Use of audio links or audio visual links with places in NSW, non-participating States and foreign countries in proceedings in NSW courts
5A   Application of this Part
(1)  This Part applies to any proceeding (including a criminal proceeding) in or before a NSW court.
(2)  An application cannot be made, and the court may not give a direction, under this Part for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place outside New South Wales that is a participating State.
(3)  An application cannot be made, and the court may not give a direction, under this Part for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place in New Zealand.
Note—
Parts 4 and 5 of the Evidence and Procedure (New Zealand) Act 1994 of the Commonwealth make provision for audio links and audio visual links with New Zealand.
5B   Taking evidence and submissions from outside courtroom or place where court is sitting
(1)  Subject to any applicable rules of court, a NSW court may, on the application of a party to a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting.
(2)  The court must not make such a direction if:
(a)  the necessary facilities are unavailable or cannot reasonably be made available, or
(b)  the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or
(c)  the court is satisfied by a party opposing the making of the direction that the direction would be unfair to the party, or
(d)  the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission.
(3)  In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so.
5C   Premises to be considered part of court
(1)  Any place within or outside New South Wales at which audio link or audio visual link facilities are being used for the purpose of a person giving evidence or making a submission in any proceeding under this Part is taken to be part of the NSW court that is sitting at a courtroom or other place for the purpose of conducting the proceeding.
(2)  Subsection (1) has effect, for example, for the purposes of the laws relating to evidence, procedure, contempt of court or perjury.
(3)  Subsection (1) also has the effect that any offence committed at the place where the person giving the evidence or making the submission is located is to be taken to have been committed at the courtroom or other place where the court is sitting for the purposes of the laws in force in New South Wales.
5D   Administration of oaths and affirmations
(1)  Subject to subsection (2), an oath to be sworn or affirmation to be made by a person giving evidence by audio link or audio visual link under this Part may be administered either:
(a)  by means of the audio link or audio visual link, as nearly as practicable in the same way as if the person were to give evidence in the courtroom or other place where the NSW court is sitting, or
(b)  at the direction of, or on behalf of, the court at the place where the person is giving the evidence by a person authorised by the court.
(2)  A person giving evidence by audio link or audio visual link under this Part from a foreign country is not required to give the evidence on oath or affirmation if:
(a)  the law in force in that country:
(i)  does not permit the person to give evidence on oath or affirmation for the purposes of the proceeding, or
(ii)  would make it inconvenient for the person to give evidence on oath or affirmation for the purposes of the proceeding, and
(b)  the NSW court is satisfied that it is appropriate for the evidence to be given otherwise than on oath or affirmation.
(3)  If evidence is given otherwise than on oath or affirmation, the NSW court is to give the evidence such weight as it thinks fit in the circumstances.
(4)  Subsections (2) and (3) apply despite anything to the contrary in the Evidence Act 1995 or any other law of this State.
[6]   Part 2, heading
Insert “with a participating State” after “visual links”.
[7]   Section 8 Giving evidence or making submissions by audio visual link
Renumber the section as section 20A and insert it in appropriate order in Part 4.
[8]   Section 9 Giving evidence or making submissions by audio link
Renumber the section as section 20B and insert it in appropriate order in Part 4.
[9]   Section 10 Expenses
Renumber the section as section 20C and insert it in appropriate order in Part 4.
[10]   Part 3, heading
Insert “with NSW” after “visual links”.
[11]   Section 20A (as renumbered by item [7])
Omit “Part”. Insert instead “Act”.
[12]   Section 20B (as renumbered by item [8])
Omit “Part”. Insert instead “Act”.
[13]   Section 20C (as renumbered by item [9])
Omit “in a participating State”. Insert instead “under this Act”.
[14]   Sections 20D and 20E
Insert after section 20C (as renumbered by item [9]):
  
20D   Failure of audio link or audio visual link
If an audio link or audio visual link being used in accordance with this Act for the purposes of a proceeding before a NSW court fails during the proceeding, the court may adjourn the proceeding or make such other orders as are appropriate in the circumstances as if a person present at the place at which the audio link or audio visual link facilities are located were in the presence of the court.
20E   Putting documents to a remote person
If in the course of examination of a person by audio link or audio visual link it is necessary to put a document to the person, the NSW court may permit the document to be put to the person:
(a)  if the document is at the courtroom or other place where the court is sitting, by transmitting by any means a copy of it to the place where the person is giving evidence or making a submission and the copy so transmitted being then put to the person, or
(b)  if the document is at the place where the person is giving evidence or making a submission, by putting it to the person and then transmitting by any means a copy of it to the courtroom or other place.