South Australian Numbered Acts South Australian Numbered ActsAfter section 12A insert:
12AB—Pre-trial special hearings
(1) Subject to this section, if—
(a) the evidence of a witness to whom this section applies is necessary for the purposes of the trial of a charge of an offence to which this section applies; and
(b) the facilities necessary to take the evidence of the witness are readily available to the court and it is otherwise practicable to make arrangements for a special hearing to be convened as a proceeding preliminary to the trial (a "pre-trial special hearing ); and
(c) the arrangements can be made without prejudice to any party to the proceedings,
the court should, on application under this section, order that arrangements be made relating to the giving of evidence by the witness at a pre-trial special hearing.
(2) An order for a pre-trial special hearing—
(a) must make provision for each of the following matters:
(i) that a hearing be convened as a proceeding preliminary to the trial of the charge of the offence for the purpose of taking the evidence of the witness in any setting that the court thinks fit in the circumstances (including an informal setting);
(ii) if the witness has a physical disability or cognitive impairment—that the evidence be taken in a particular way (to be specified by the court) that will, in the court's opinion, facilitate the taking of evidence from the witness or minimise the witness's embarrassment or distress (including, if the witness has complex communication needs, with such communication assistance as may be specified by the court);
Note—
Communication assistance for a witness may be provided, for example, by a communication partner or by using a device (such as a speak-and-spell communication device).
(iii) that an audio visual record of the evidence be made;
(iv) that the taking of evidence at the hearing be transmitted to the defendant by means of closed circuit television;
(v) if the defendant attends the hearing in person—that appropriate measures be taken to prevent the witness and the defendant from directly seeing or hearing each other before, during or after the hearing; and
(b) may make provision for the witness to be accompanied at the hearing by a relative, friend or other person for the purpose of providing emotional support; and
(c) may specify that the hearing is convened for any (or all) of the following purposes:
(i) examination of the witness;
(ii) cross-examination of the witness;
(iii) re-examination of the witness; and
(d) may make provision for any other matter that the court thinks fit.
(3) An order for a pre-trial special hearing must not be made if the effect of the order would be—
(a) to relieve a witness from the obligation to give evidence; or
(b) to relieve a witness from the obligation to submit to cross-examination; or
(c) to prevent the judge or defendant from observing the witness's demeanour in giving evidence (but the observation may be direct or by live transmission of the witness's voice and image); or
(d) to prevent the defendant from instructing counsel while the witness is giving evidence.
(4) If a witness to whom this section applies is accompanied by a person for the purpose of providing emotional support or communication assistance—
(a) the accompanying person must be visible to the judge while the witness is giving evidence; and
(b) if the defendant is prevented from seeing the accompanying person directly while the witness is giving evidence—the court must ensure that the defendant is able to observe that person by direct transmission of images of the witness together with that person while the witness is giving evidence; and
(c) the audio visual record of the evidence must show the accompanying person throughout the taking of the evidence.
(5) A person may only provide communication assistance—
(a) if the person—
(i) is a communication partner or has been approved by the court to provide such assistance to the witness; and
(ii) takes an oath or makes an affirmation that he or she will communicate accurately with both the witness and the court; and
(b) in a case where a party to the proceedings disputes the person's ability or impartiality in providing communication assistance—if the judge is satisfied as to the person's ability and impartiality.
(6) The fact that a person has provided communication assistance to a witness in a pre-trial special hearing under this section does not of itself prevent that person also from being called as a witness in the trial of the charge of the offence or in any other relevant proceedings.
(7) An application for a pre-trial special hearing order must—
(a) be made in writing by the party calling the witness to whom this section applies to give evidence; and
(b) be filed in the court as a proceeding preliminary to the commencement of the trial; and
(c) within 14 days of being filed in the court—be served on the other party to the proceedings (the "respondent"); and
(d) specify why the witness is a witness to whom this section applies and the reasons why the special hearing is sought; and
(e) otherwise be made in accordance with the rules of court.
(8) The respondent may, if of the opinion that the witness on whose behalf the application has been made is not in fact a witness to whom this section applies, within 14 days of being served with the application (the "prescribed period"), file an answering document in the court objecting to the application on that ground.
(9) If an objection to the application is filed within the prescribed period, the court must determine the application before the commencement of the trial—
(a) in the absence of the applicant and respondent; or
(b) by conducting a hearing in a room closed to the public.
(10) If no objection to the application is filed within the prescribed period, the court must, subject to subsection (1)(b)
and (c)
, make a pre-trial special hearing order pursuant to this section.
(11) A pre-trial special hearing order may be made, varied or revoked on the court's own initiative, or on the application of a party to the proceedings.
(12) A determination or order made by a judge under this section is binding on the judge presiding at the trial of the defendant, whether the trial is the first or a new trial following a stay of the proceedings, discontinuance of an earlier trial or an appeal, unless the trial judge considers that it would not be in the interests of justice for the determination or order to be binding or the determination or order is inconsistent with an order made on such an appeal.
(13) Subject to section 13BA, an audio visual record of the evidence of a witness made at a pre-trial special hearing is admissible as evidence of the witness in the trial of a charge of an offence to which this section applies.
(14) In this section—
"trial of a charge of an offence to which this section applies" means—
(a) the trial of a charge of a serious offence against the person; or
(b) the trial of a charge of an offence of contravening or failing to comply with an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009
; or
(c) the trial of a charge of an offence of contravening or failing to comply with a restraining order under the Summary Procedure Act 1921
;
"witness to whom this section applies" means—
(a) a young child; or
(b) a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions.