EVIDENCE ACT 1906 - SECT 106K

EVIDENCE ACT 1906 - SECT 106K

106K .         Child’s evidence in full, special hearing to take and record

        (1)         A judge who hears an application under section 106I(1)(b) may make such order as the judge thinks fit which is to include —

            (a)         directions, with or without conditions, as to the conduct of the special hearing, including directions as to —

                  (i)         whether the affected child is to be in the courtroom, or in a separate room, when the child’s evidence is being taken; and

                  (ii)         the persons who may be present in the same room as the affected child when the child’s evidence is being taken;

            (b)         subject to section 106HB(3), directions, with or without conditions, as to the persons, or classes of persons, who are authorised to have possession of the visual recording of the evidence,

                and, without limiting section 106M but subject to section 106HB(3), may include directions and conditions as to the giving up of possession and as to the playing, copying or erasure of the recording.

        (2)         An order under subsection (1) may be varied or revoked by the judge who made the order or a judge who has jurisdiction co-extensive with that judge.

        (3)         At a special hearing ordered under subsection (1) —

            (a)         the accused must not be in the same room as the affected child when the child’s evidence is being taken but must be able to —

                  (i)         observe the proceedings by means of a closed circuit television system and at all times have the means of communicating with the accused’s counsel; or

                  (ii)         in accordance with subsection (3A), listen to the proceedings by means of an audio link and at all times have the means of communicating with the accused’s counsel;

                and

            (b)         no person other than a person authorised by the judge under subsection (1) is to be present in the same room as the affected child when the child’s evidence is being taken; and

            (c)         subject to the control of the presiding judge, the affected child is to give his or her evidence and be cross-examined and re-examined; and

            (d)         except as provided by this section, the usual rules of evidence apply.

        (3A)         Subsection (3)(a)(ii) applies to the accused if, in the opinion of the judge, it is not desirable for the accused to attend court due to the accused’s health or another reason the judge thinks fit.

        (3B)         If the accused hears the proceedings by means of an audio link under subsection (3)(a)(ii), the accused must be provided with a reasonable opportunity to view a copy of the visually recorded evidence before the evidence is presented to the court.

        (4)         If an order is made under subsection (1), nothing in this section or section 106I prevents a visually recorded interview from being presented under section 106HB as the whole or a part of the affected child’s evidence in chief at the special hearing, and in that event the judge may give directions as to the manner in which the visually recorded interview is to be —

            (a)         presented at the special hearing; and

            (b)         recorded on, incorporated with or referred to in the visual recording of the evidence taken at the special hearing.

        (4A)         A person must not make a copy of, or otherwise reproduce, the proceedings, or any part of the proceedings, heard by means of an audio link under subsection (3)(a)(ii).

        Penalty for this subsection: a fine of $5 000.

        (4B)         A person must not play, supply or offer to supply any copy of, or reproduction of, the proceedings, or any part of the proceedings, heard by means of an audio link under subsection (3)(a)(ii).

        Penalty for this subsection: a fine of $5 000.

        (4C)         A person must not broadcast the proceedings, or any part of the proceedings, heard by means of an audio link under subsection (3)(a)(ii).

        Penalty for this subsection: imprisonment for 1 year and a fine of $100 000.

        (5)         Where circumstances so require, more than one special hearing may be held under this section for the purpose of taking the evidence of the affected child, and section 106I and this section are to be read with all changes necessary to give effect to any such requirement.

        [Section 106K inserted: No. 36 of 1992 s. 8; amended: No. 53 of 1992 s. 39; No. 71 of 2000 s. 22 and 29; No. 46 of 2004 s. 14(4) and 23; No. 84 of 2004 s. 82; No. 34 of 2020 s. 90.]

[ 106L.         Deleted: No. 71 of 2000 s. 23.]