South Australian Current Acts South Australian Current Acts13—Special arrangements for protecting witnesses from embarrassment,
distress etc when giving evidence
(1) Subject to this
section, if—
(a) it
is desirable to make special arrangements for taking evidence from a witness
in a trial in order to protect the witness from embarrassment or distress, to
protect the witness from being intimidated by the atmosphere of the courtroom
or for any other proper reason; and
(b) the
facilities necessary for the special arrangements are readily available to the
court and it is otherwise practicable to make the special arrangements; and
(c) the
special arrangements can be made without prejudice to any party to the
proceedings,
the court should, on its own initiative, order that special arrangements be
made for taking the evidence of the witness.
(2) Without limiting
the kind of order that may be made under this section, the court may make 1 or
more of the following orders:
(a) an
order that the evidence be given outside the trial court and transmitted to
the trial court by means of closed circuit television;
(b) an
order that the evidence be taken outside the trial court, and that an audio
visual record of the evidence be made and replayed in the trial court;
(c) an
order that a screen, partition or one-way glass be placed to obscure the view
of a party to whom the evidence relates or some other person;
(d) an
order that a defendant be excluded from the place where the evidence is taken,
or otherwise be prevented from directly seeing and hearing the witness while
giving evidence;
(e) an
order that the witness be accompanied by a relative or friend, or by a
canine court companion, for the purpose of providing emotional support;
(f) if
the witness has a physical disability or cognitive impairment—an order
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.
(3) The court may, if
of the opinion that expert evidence would assist the court to determine the
special arrangements that should be made for taking the evidence of the
witness, receive such evidence and, if the native language of the witness is
not English and the witness is not reasonably fluent in English, evidence
about any additional difficulty that may be caused by the witness giving
evidence through an interpreter.
(4) Special
arrangements made under this section may relate to the witness's evidence as a
whole or to particular aspects of the witness's evidence, such as
cross-examination and re-examination.
(5) An order must not
be made under this section if the effect of the order would be—
(a) to
relieve a witness from the obligation to give sworn evidence; or
(b) to
relieve a witness from the obligation to submit to cross-examination; or
(c) to
prevent the judge, jury 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 by replay of a recording of the witness's
voice and image); or
(d) to
prevent the defendant from instructing counsel while the witness is giving
evidence.
(6) If a witness is
accompanied by a relative or friend for the purpose of providing emotional
support, that person must be visible to the judge and jury (if any) while the
witness is giving evidence and, if, in consequence of an order under this
section, a party is prevented from seeing that person directly while the
witness gives evidence, the court must ensure that the party is able to
observe that person either—
(a) by
direct transmission of images of the witness together with that person while
the witness is giving evidence; or
(b) by
the later replay of a recording of images of the witness together with that
person made while the witness was giving evidence.
(6a) If a witness is
accompanied by a canine court companion for the purpose of providing emotional
support, the following provisions apply:
(a) the
witness may also be accompanied by a person who will act as a handler for the
dog and subsection (6) applies to the handler as if they were an
accompanying person providing emotional support to the witness;
(b) in a
criminal trial—
(i)
if the witness is accompanied by the dog while giving
evidence before a jury—if practicable, the dog should not be visible to
the jury while the witness is giving the evidence; and
(ii)
if practicable, the dog should not be visible in any
audio visual record of the evidence.
(7) If, in a criminal
trial, a court makes special arrangements for taking the evidence of a
witness, the judge must warn the jury not to draw from that fact any inference
adverse to the defendant, and not to allow the special arrangements to
influence the weight to be given to the evidence.
(8) An order under
this section may be made, varied or revoked on the court's own initiative, or
on the application of a party or witness.