South Australian Numbered Acts South Australian Numbered Acts40—Application for disclosure of operative's identity etc in proceedings
(1) If a
witness identity protection certificate in respect of an operative has been
filed in a court in relation to proceedings, a party to the proceedings or a
lawyer assisting the court in the proceedings may, at any time after the
certificate has been filed, apply to the court—
(a) for
permission—
(i)
to ask a question of a witness (including the operative)
that may lead to the disclosure of the operative's identity or where the
operative lives; or
(ii)
for a person involved in the proceedings to make a
statement that discloses, or may lead to the disclosure of, the operative's
identity or where the operative lives; or
(b) for
an order requiring a witness (including the operative) to answer a question,
give evidence or provide information that discloses, or may lead to the
disclosure of, the operative's identity or where the operative lives.
(2) An application
under this section must be heard in the absence of the jury (if any).
(3) The court may give
permission or make an order under this section if (and only if) the court is
satisfied that—
(a)
there is evidence that, if accepted, would substantially call into question
the operative's credibility; and
(b) it
would be impractical to test properly the credibility of the operative without
risking the disclosure of, or disclosing, the operative's identity or where
the operative lives; and
(c) it
is in the interests of justice that the operative's credibility be tested.
(4) Each party to the
proceedings must be informed of any proposal by the court to give permission
or make an order under this section and, if the proposed permission or order
relates to a witness who is the operative in respect of whom the
witness identity protection certificate has been filed—
(a) if
the witness has not yet given evidence in the proceedings—the party
calling the witness must be given the opportunity to withdraw the witness (in
which case, the permission or order relating to that witness lapses);
(b) if
the witness has already given evidence in the proceedings—the court may,
and if a party so requests must, warn the jury of the need for caution in
determining whether to accept the evidence and the weight to be given to it.
(5) Unless the court
considers that the interests of justice require otherwise, the court must be
closed—
(a) when
an application is made under this section; and
(b) if
permission is given or an order made in response to the application—when
the evidence is given or information provided that discloses, or may lead to
the disclosure of, the operative's identity or where the operative lives.
(6) The court must
make an order suppressing the publication of anything said—
(a) when
an application is made under this section; and
(b) if
permission is given or an order made in response to the application—when
the evidence is given or information provided that discloses, or may lead to
the disclosure of, the operative's identity or where the operative lives.
(7) The court may,
under this section, make any other order it considers appropriate to protect
the operative's identity or to prevent the disclosure of where the operative
lives.
(8) Nothing in this
section prevents the taking of a transcript of court proceedings but the court
may make an order for how the transcript is to be dealt with, including an
order suppressing its publication.
(9) A person is guilty
of an offence if—
(a) the
person knows, or is reckless as to whether, an order has been made under this
section; and
(b) the
person intentionally, knowingly or recklessly contravenes the order.
Maximum penalty: Imprisonment for 2 years.
(10) Subsection (9)
does not limit the court's power to punish for contempt.