South Australian Numbered Acts

STATUTES AMENDMENT (VULNERABLE WITNESSES) ACT 2015 (NO 16 OF 2015) - SECT 10

10—Insertion of section 13BA

After section 13B insert:

13BA—Admissibility of recorded evidence by certain witnesses in certain criminal proceedings

        (1)         Subject to this section, the court may, in the trial of a charge of an offence order that the evidence of a witness be admitted in the form of an audio visual record.

        (2)         An application for an order under subsection (1)

must—

            (a)         be made in writing by the party wishing to have the audio visual record of the evidence admitted in the trial; and

            (b)         be filed in the court; and

            (c)         within 14 days of being filed in the court—be served on the other party to the proceedings (the "respondent"); and

            (d)         otherwise be made in accordance with the rules of court.

        (3)         An audio visual record of the evidence of a witness may be admitted under this section if—

            (a)         the recording has been made pursuant to—

                  (i)         section 12AB; or

                  (ii)         Part 17 Division 3 of the Summary Offences Act 1953

; and

            (b)         the court is satisfied as to the witness's capacity to give sworn or unsworn evidence at the time the recording was made; and

            (c)         the court is satisfied that the respondent has been given a reasonable opportunity to view the recording; and

            (d)         during the course of the trial, the witness is available, if required, for further examination, cross-examination or re-examination.

        (4)         The court's discretion to exclude evidence is not affected by subsection (3)

and the court may—

            (a)         rule as inadmissible the whole or any part of the recording; or

            (b)         before admitting the recording, order that it be edited so as to exclude evidence that is inadmissible for any reason.

        (5)         Despite subsection (3)(d)

, the witness cannot be further examined, cross-examined or re-examined on the evidence admitted in the trial without the permission of the court which may only be given, on application by a party to the proceedings—

            (a)         if the court is satisfied that a party to the proceedings has, since the making of the audio visual record, become aware of a matter of which the party could not reasonably have been aware at the time the record was made; or

            (b)         if the witness gives evidence in the trial apart from or in addition to evidence admitted under this section in the form of an audio visual record and the court is satisfied that it is in the interests of justice that the witness be further examined, cross-examined or re-examined; or

            (c)         if the court is satisfied that it is otherwise in the interests of justice to permit the witness to be further examined, cross-examined or re-examined.

        (6)         If a court admits evidence in the form of an audio visual record under this section, the judge must—

            (a)         explain to the jury that the law allows the court to admit evidence in this form; and

            (b)         warn the jury—

                  (i)         not to draw from the admission of evidence in that form any inference adverse to the defendant; and

                  (ii)         not to allow the admission of evidence in that form to influence the weight to be given to the evidence.