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EVIDENCE (CHILDREN AND SPECIAL WITNESSES) ACT 2001 - SECT 8 Special witness

EVIDENCE (CHILDREN AND SPECIAL WITNESSES) ACT 2001 - SECT 8

PART 3 - Declaration of Special Witness Special witness

(1)  A judge may make an order declaring that a person who is giving, or is to give, evidence in a proceeding is a special witness if satisfied that –
(a) by reason of intellectual, mental or physical disability, the person is, or is likely to be, unable to give evidence satisfactorily in the ordinary manner; or
(b) by reason of age, cultural background, relationship to any party to the proceeding, the nature of the subject matter of the evidence or any other factor the court considers relevant, the person is likely –
(i) to suffer severe emotional trauma; or
(ii) to be so intimidated or distressed as to be unable to give evidence or to give evidence satisfactorily.
(2)  An order made under subsection (1) may –
(a) be made on the application of a party to the proceeding or the prosecutor or on the motion of the judge; and
(b) include any one or more of the following orders:
(i) an order that the special witness have near him or her a person approved by the judge who may provide him or her with support;
(ii) an order that the evidence of the special witness be given by audio visual link;
(iia) an order admitting into evidence a prior statement of the special witness as if the special witness were an affected child or prescribed witness in respect of whom section 5 applies;
(iib) an order that a special hearing be held to take and record evidence as if the special witness were an affected person in respect of whom section 6 applies;
(iic) if an order is made under subparagraph (iib) , an order that the special witness not be present at the trial;
(iii) an order that, while the special witness is giving evidence, all persons other than those specified in the order be excluded from the courtroom.
(2A)  If a person, who is an alleged victim of a family violence offence, is giving or is to give evidence in a proceeding in which a person has been charged with a family violence offence, a judge –
(a) must consider whether or not he or she should make an order under paragraph (b) ; and
(b) may make an order declaring that the person, who is the alleged victim of the family violence offence, is a special witness.
(2B)  An order made under subsection (2A) may include any one or more of the orders referred to in subsection (2)(b) .
(3)  The judge may only approve a person for the purpose of subsection (2)(b)(i) if that person is not, or is not likely to be, a witness in or a party to the proceeding.
(4)  A judge may revoke or vary an order made under this section.
(5)  A judge is not to make an order under this section in respect of an affected child or a prescribed witness.
(6)  While a special witness is giving evidence by audio visual link, only the following persons may be present in the room with the special witness:
(a) a person approved by the judge for the purpose of subsection (2)(b)(i) ;
(b) one person employed at the court in which the proceedings are being conducted.
(7)  .  .  .  .  .  .  .  .