South Australian Current Acts South Australian Current Acts13A—Special arrangements for protecting vulnerable witnesses when giving
evidence in criminal proceedings
(1) Subject to this
section, if—
(a) a
vulnerable witness is to give evidence in criminal proceedings; 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 must, on application under this section, 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
vulnerable witness while giving evidence;
(e) 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 vulnerable witness or minimise the witness's embarrassment or
distress, including (for example)—
(i)
that the witness be accompanied by a relative, friend or
other person, or by a canine court companion, for the purpose of providing
emotional support; and
(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); and
Note—
Communication assistance for a vulnerable witness with complex
communication needs may be provided, for example, by a communication partner
or by using a device (such as a speak-and-spell communication device).
(iii)
that extra allowance be made for breaks during, and time
to be given for, the taking of evidence; and
(iv)
that, while the evidence is being taken, the judge and
any lawyer present in the court not wear a wig or gown (or both).
(3) Special
arrangements made under this section may relate to the vulnerable witness's
evidence as a whole or to particular aspects of the witness's evidence, such
as cross-examination and re-examination.
(4) An order must not
be made under this section if the effect of the order would be—
(a) to
relieve a vulnerable witness from the obligation to give sworn evidence; or
(b) to
relieve a vulnerable witness from the obligation to submit to
cross-examination; or
(c) to
prevent the judge, jury or defendant from observing the vulnerable 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 vulnerable witness is
giving evidence.
(5) If a vulnerable
witness is accompanied by a person for the purpose of providing emotional
support or communication assistance, 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.
(5a) A person may only
provide communication assistance to a witness—
(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.
(5b) The fact that a
person has provided communication assistance to a witness in proceedings under
this section does not of itself prevent that person also from being called as
a witness to give evidence in the proceedings or in any other relevant
proceedings.
(5c) 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 (5) applies to the handler as if they were an
accompanying person providing emotional support to the witness;
(b) 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;
(c) if
practicable, the dog should not be visible in any audio visual record of the
evidence.
(6) An application for
an order under this section must—
(a) be
made in writing by the party calling the vulnerable witness to give evidence;
and
(b) be
filed in the court before 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 the nature of the vulnerability of the witness, the special
arrangements sought and the reasons for the arrangements; and
(e)
otherwise be made in accordance with the rules of court.
(7) The respondent
may, if of the opinion that the witness on whose behalf the application has
been made is not in fact a vulnerable witness, 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.
(8) 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.
(9) 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
vulnerable 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.
(10) If no objection
to the application is filed within the prescribed period, the court may order
that appropriate special arrangements be made for taking the evidence of the
vulnerable witness at the trial.
(11) The court—
(a) may
dispense with special arrangements for taking the evidence of a
vulnerable witness in criminal proceedings if—
(i)
the witness is an adult; and
(ii)
the court is satisfied that—
(A) the facilities necessary for the
special arrangements are not readily available to the court; and
(B) taking into account the following
matters, it is not reasonably practicable to make the facilities available:
• the cost,
inconvenience and delay involved in procuring the necessary facilities or in
adjourning to some other place where the necessary facilities are available;
• the urgency of
the proceedings; and
(b) must
give reasons for its decision.
(12) If, in a criminal
trial, a court makes special arrangements for taking the evidence of a
vulnerable 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.
(13) An order under
this section may be made, varied or revoked on the court's own initiative, or
on the application of a party to the proceedings.
(14) If an order has
been made under this section 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 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.