Page 2670 - Week 07 - Thursday, 3 July 2008
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before trial without having to confront the accused personally in the courtroom. The witness gives evidence in a separate room to the courtroom and is then cross-examined and re-examined via audiovisual link by the defence in the courtroom in the presence of the judge, prosecutor, accused and anyone else the court orders should be present. This evidence is recorded and then later played at the actual trial as a substitute for the witness’s oral testimony at trial, eliminating the need for the witness to attend the trial to give their evidence.
It is also recognised that there may be occasions where prerecording other witnesses’ evidence might be necessary to ensure that the best evidence of that witness is taken. For example, it may be necessary for an adult complainant in a sexual offence proceeding to give their evidence at a pre-trial hearing because of a special vulnerability where they might suffer further severe emotional trauma as to be prevented from giving satisfactory evidence at a later time at trial. These amendments will ensure that the court has the discretion to order prerecording of such witnesses where the court is satisfied that it is necessary.
Evidence which is prerecorded, either as part of a police interview or at a pre-trial hearing which is admissible in a sexual assault or violent offence proceeding will also be admissible in later proceedings, such as a rehearing or appeal or in another proceeding arising as a result of the original proceeding, for example, in Family Court proceedings. In these circumstances, appropriate safeguards will remain for the defence to recall the witness to give further evidence, if required.
These amendments will also permit alleged victims of violent offences and witnesses in sexual or violent offence proceedings who are giving similar evidence in relation to abuse they allege has also been committed upon them by the accused to give their evidence via audiovisual link in a room separate to the courtroom, similar to other sexual assault victims. Where a witness chooses to give their evidence in court, arrangements will be made to block the view of the accused from the victim in sexual and violent offence proceedings and similar act witnesses.
Witnesses will also be protected from the distress, intimidation and humiliation that can occur as a result of being questioned by an alleged offender by prohibiting a self-represented accused in sexual and violent offence proceedings from personally cross-examining certain witnesses. Complainants, similar act witnesses, children and witnesses with a mental or physical disability which affects their ability to give evidence will be protected from this further humiliation. In the interests of justice, the accused will continue to be entitled to cross-examine these witnesses, but must do so via a legal representative and will be entitled to free legal representation for this purpose if necessary.
Complainants and similar act witnesses in sexual and violent offence proceedings, and children and witnesses with a mental or physical disability in any court proceedings will be entitled to have a support person present while they are giving evidence. The court will have discretion to close the court to the public while alleged victims and witnesses in sexual assault and violent offences proceedings are giving evidence. This measure will reduce the embarrassment these witnesses might experience while giving evidence about highly personal details. The court will also have discretion to order closure of the court for other witnesses where the interests of justice require it.
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