South Australian Current Acts South Australian Current Acts12AB—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, or by a canine court companion, 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
(ca) may
specify that the hearing include an initial hearing for the purpose of taking
any evidence (if required), hearing submissions and making rulings as to the
admissibility of any evidence and a subsequent hearing (or hearings) for the
examination, cross-examination or re-examination of the
witness to whom this section applies (if required) and any other matters; and
(d) may
make provision for any other matter that the court thinks fit.
(3) An order must not
be made for, or in, a pre-trial special hearing if the effect of the order
would be—
(a) to
relieve a witness from the obligation to give sworn or unsworn evidence or to
submit to cross-examination (except where recorded evidence is admitted under
section 13BA and permission of the court for further examination,
cross-examination or re-examination of the witness is not granted); 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.
(6a) If a
witness to whom this section applies is accompanied by a canine
court companion for the purpose of providing emotional support—
(a) the
witness may also be accompanied by a person who will act as a handler for the
dog and subsection (4) applies to the handler as if they were an
accompanying person providing emotional support to the witness; and
(b) if
practicable, the dog should not be visible in the audio visual record of the
evidence.
(7) An application for
a pre-trial special hearing 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 an order for a pre-trial
special hearing pursuant to this section.
(11) An order for a
pre-trial special hearing may be varied or revoked on the court's own
initiative, or on the application of a party to the proceedings.
(11a) If an order has
been made for a pre-trial special hearing in relation to a witness in a trial
of a charge of a child sexual offence, the court may also (at the time of
making that order, at the pre-trial special hearing or at any other time) give
1 or more of the following directions:
(a) a
direction about the manner of questioning the witness;
(b) a
direction about the duration of questioning the witness;
(c) a
direction about the questions that may or may not be put to the witness;
(d) if
there is more than 1 accused, a direction about the allocation among the
accused of the topics about which the witness may be asked;
(e) a
direction about the use of models, plans, body maps or similar aids to help
communicate a question or an answer;
(f) a
direction that if a party intends to lead evidence that contradicts or
challenges the evidence of the witness or that otherwise discredits the
witness, the party is not obliged to put that evidence in its entirety to the
witness in cross-examination;
(g) any
other direction the court thinks necessary for the fair and efficient conduct
of the proceeding.
(12) Subject to this
section, a pre-trial special hearing will be conducted as the court thinks
fit.
(13) At a pre-trial
special hearing the court may do any of the following:
(a) make
orders under section 13BA as to the admission of any recorded evidence of
the witness made pursuant to Part 17 Division 3 of the
Summary Offences Act 1953 ;
(b) if
any such recorded evidence is to be admitted—hear and determine any
application for further examination, cross-examination or re-examination of
the witness made pursuant to section 13BA;
(c) if
no such recorded evidence exists or is to be admitted or if an application
referred to in paragraph (b) is granted—permit examination,
cross-examination or re-examination of the witness at the pre-trial special
hearing;
(d) make
orders under section 13BA as to the admission of the audio visual record
of any examination, cross-examination or re-examination of the witness at the
pre-trial special hearing;
(e) make
orders (on the court's own initiative, or on the application of a party to the
proceedings) as to any other matter that the court thinks fit (including,
without limitation, any orders of a kind referred to in section 13A(2)).
(13a) The court may
only permit examination, cross-examination or re-examination of the witness at
the pre-trial special hearing if the court is satisfied as to the witness's
capacity to give sworn or unsworn evidence at the time of the pre-trial
special hearing.
(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; or
(c) in
the case of a trial of a charge of a child sexual offence, any of the
following witnesses:
(i)
an alleged victim of the offence (regardless of their age
at the time of the trial);
(ii)
a child;
(iii)
a vulnerable witness;
(iv)
any other witness if the court is satisfied that they
should be allowed to give evidence in a manner contemplated by this section;
or
(d) in
the case of a trial of an offence involving domestic abuse (within the meaning
of the Intervention Orders (Prevention of Abuse) Act 2009 )—an
alleged victim of the domestic abuse.