EVIDENCE ACT 1929 - SECT 12AB

EVIDENCE ACT 1929 - SECT 12AB

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, 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.