EVIDENCE ACT 1929 - SECT 13A

EVIDENCE ACT 1929 - SECT 13A

13A—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.