(3) A vulnerable adult complainant need not be involved in the vulnerable adult proceeding or the initiation of that proceeding.
15YAB Special witnesses
Meaning of special witness
(1) In a proceeding for a Commonwealth offence, the court may declare a person to be a special witness in relation to the proceeding if satisfied that the person is unlikely to be able to satisfactorily give evidence in the ordinary manner because of:
(a) a disability; or
(b) intimidation, distress or emotional trauma arising from:
(i) the person’s age, cultural background or relationship to a party to the proceeding; or
(ii) the nature of the evidence; or
(iii) some other relevant factor.
Note: Such a declaration can also be made in a related proceeding (see subsection 15Y(5)).
(2) A declaration under subsection (1) may be made on the court’s own initiative or on application by or on behalf of a party to the proceeding.
Orders that certain protections apply to a special witness
(3) In a special witness proceeding, the court may order that one or more of the following provisions apply to a special witness:
(d) section 15YL (about alternative arrangements);
(e) section 15YM (about use of video or audio recordings of interviews);
(ea) section 15YNB (about original evidence admissible in new proceedings);
(f) section 15YO (about accompanying adults);
(g) section 15YP (about excluding people from the courtroom);
(h) subparagraph 15YR(1)(c)(iii) (about publications that identify vulnerable persons).
(4) An order under subsection (3) may be made on the court’s own initiative or on application by or on behalf of the special witness.
15YAC Child complainants
(1) A child complainant, in relation to a child proceeding:
(a) is a child who is, or is alleged to be, a victim of an offence, of a kind referred to in subsection 15Y(1), to which the proceeding relates (whether or not the child is involved in the proceeding or was involved in the initiation of the proceeding); and
(b) includes a person who was such a child at the time the offence concerned was alleged to have been committed.
(2) However, a person who is 18 or over is not a child complainant if the person informs the court that the person does not wish to be treated as such a complainant.
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15YAD Child witnesses
(1) A child witness, in relation to a child proceeding:
(a) is a child (including a child complainant) who is a witness in the proceeding; and
(b) includes a witness in the proceeding who was a child at the time the offence concerned was alleged to have been committed.
(2) However, a person who is 18 or over is not a child witness if the person informs the court that the person does not wish to be treated as such a witness.
Division 2—Admissibility of evidence
15YB Evidence of sexual reputation—child proceedings
Evidence of a child witness’ or child complainant’s reputation with respect to sexual activities is inadmissible in a child proceeding.
15YC Evidence of sexual experience—child proceedings
(1) Evidence of a child witness’ or child complainant’s experience with respect to sexual activities is inadmissible in a child proceeding, unless the court gives leave.
(2) The court must not give leave unless satisfied that:
(a) the evidence is substantially relevant to facts in issue in the proceeding; and
(b) the evidence has substantial probative value; and
(c) either:
(i) the evidence is of sexual activity that is alleged to form part of a connected set of circumstances in which the alleged offence was committed; or
(ii) if the evidence is of sexual activities with a defendant in the proceeding—the evidence relates to sexual activity that occurred or was recent at the time of the commission of the alleged offence.
(3) For the purposes of paragraph (2)(a), the evidence is not to be treated as being substantially relevant to facts in issue merely because of inferences it may raise as to the child witness’ or child complainant’s general disposition.
(4) Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value for the purposes of paragraph (2)(b), it is to have regard to:
(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and
(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred; and
(c) whether the probative value of the evidence outweighs any distress, humiliation or embarrassment to the child witness or child complainant.
(5) This section does not apply if the child is a defendant in the proceeding.
15YCA Evidence of sexual reputation—vulnerable adult proceedings
Evidence of a vulnerable adult complainant’s reputation with respect to sexual activities is inadmissible in a vulnerable adult proceeding.
15YCB Evidence of sexual experience—vulnerable adult proceedings
(1) Evidence of a vulnerable adult complainant’s experience with respect to sexual activities is inadmissible in a vulnerable adult proceeding, unless the court gives leave.
(2) The court must not give leave unless the court is satisfied that:
(a) the evidence is substantially relevant to facts in issue in the proceeding; and
(b) the evidence has substantial probative value; and
(c) either:
(i) the evidence is of sexual activity that is alleged to form part of a connected set of circumstances in which the alleged offence was committed; or
(ii) if the evidence is of sexual activities with a defendant in the proceeding—the evidence relates to sexual activity that occurred or was recent at the time of the commission of the alleged offence.
(3) For the purposes of paragraph (2)(a), the evidence is not to be treated as being substantially relevant to facts in issue merely because of inferences it may raise as to the vulnerable adult complainant’s general disposition.
(4) Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value for the purposes of paragraph (2)(b), it is to have regard to:
(a) whether the evidence tends to prove that the vulnerable adult complainant knowingly or recklessly made a false representation when the complainant was under an obligation to tell the truth; and
(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred; and
(c) whether the probative value of the evidence outweighs any distress, humiliation or embarrassment to the vulnerable adult complainant.
15YD Leave under this Division
(1) An application for leave under this Division:
(a) must be in writing; and
(b) if there is a jury in the proceeding in question—must be made in the jury’s absence; and
(c) must not be determined before the court has considered such submissions and other evidence as it thinks necessary for determining the application.
(2) If the court gives leave under this Division, the court must:
(a) state its reasons in writing; and
(b) cause those reasons to be entered in the court’s records.
Division 2A—Evidence recording hearings
15YDA Application
This Division applies to a person (the vulnerable person) as follows:
(a) for a child proceeding—a child witness;
(b) for a vulnerable adult proceeding—a vulnerable adult complainant;
(c) for a special witness proceeding—a special witness for whom an order under subsection 15YAB(3) is in force for this Division.
15YDB Evidence recording hearings
(1) The court may, if it is satisfied that it is in the interests of justice to do so, order a hearing (the evidence recording hearing) for the vulnerable person to give evidence.
(2) For the purposes of subsection (1), the court must take into account:
(a) whether each party to the proceeding has sufficient time to prepare for the evidence recording hearing and the proceeding; and
(b) the availability of:
(i) the prosecutor in the proceeding; and
(ii) if the defendant has a legal representative—the defendant’s legal representative; and
(iii) if the defendant does not have a legal representative—the defendant; and
(c) the circumstances and wishes of the vulnerable person; and
(d) the availability of court and other facilities to enable the video or audio recording of evidence given at the evidence recording hearing.
(3) The order may relate to some or all of the following:
(a) evidence in chief;
(b) cross‑examination;
(c) re‑examination.
Note: For rules about cross‑examination, see Division 3.
(4) The order may be made:
(a) on the court’s own initiative or on application by or on behalf of a party to the proceeding; and
(b) at any time during the proceeding; and
(c) for the evidence recording hearing to be held at any time during the proceeding (including after the trial in the proceeding has begun).
(5) To avoid doubt, evidence in chief may also include a recording of an earlier interview (see section 15YM).
Adjourning proceedings to enable recording
(6) The court may adjourn the proceeding, or a part of the proceeding, to a court or other place that is equipped with facilities for evidence to be given in accordance with this section if:
(a) the court is not equipped with the necessary facilities; or
(b) the court otherwise considers it appropriate to do so.
15YDC Arrangements for persons at the hearing
(1) The vulnerable person must not be able to see the defendant during the evidence recording hearing.
(2) However, the defendant must be able to:
(a) if the vulnerable person gives evidence from another room—by closed‑circuit television, see and hear the vulnerable person giving evidence; or
(b) if the vulnerable person and the defendant are in the same room—hear the vulnerable person giving evidence.
(3) If there is a jury in the proceeding, the evidence recording hearing must be held in the jury’s absence.
(4) Otherwise, the court may determine who is to be present at the evidence recording hearing.
15YDD Evidence must be recorded
(1) A recording must be made of the evidence given by the vulnerable person at the evidence recording hearing.
(1A) The recording must be a video recording unless the court is satisfied that extraordinary circumstances require the use of audio recording only.
(2) The recording of the evidence must:
(a) be played at the hearing of the proceeding; and
(b) be admitted in evidence as the vulnerable person’s evidence at the hearing as if the vulnerable person gave the evidence at the hearing in person.
(3) Subsection (2) has effect subject to section 15YDE (admissibility of evidence).
15YDE Admissibility of evidence
The court may refuse to admit the whole or part of the contents of the recording.
15YDF Access to recordings and transcripts
Defendants’ access to recordings
(1) Neither a defendant in the proceeding nor the defendant’s legal representative is entitled to be given a video or audio recording (the original recording) made in an evidence recording hearing, or a copy of the original recording.
(2) However, they must be given reasonable access to the original recording in order to view or listen to it.
Note: This may require access on more than one occasion.
(3) Neither the defendant nor the defendant’s legal representative may:
(a) make a recording (or other copy) of the original recording; or
(b) do anything (whether directly or indirectly) that would damage or alter the original recording.
Transcripts
(4) The court must give each party to the proceeding and the jury (if any) access to, or a copy of, a transcript of the original recording.
(5) To avoid doubt, subsections (1), (2) and (4) do not apply in relation to any part of a recording the court has refused to admit (see section 15YDE (admissibility of evidence)).
Offence
(6) A person commits an offence if:
(a) the person:
(i) makes a recording (or other copy) of the original recording, or a part of the original recording; or
(ii) does anything (whether directly or indirectly) to damage or alter the original recording, or a part of the original recording; or
(iii) possesses or supplies the original recording, or a part of the original recording; or
(iv) possesses or supplies a copy of the original recording, or a part of the original recording; and
(b) the person does so without lawful authority or excuse.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
(7) The fault element for paragraph (6)(a) is intention.
15YDG Vulnerable person need not give further evidence unless court orders
(1) If evidence given by the vulnerable person in an evidence recording hearing is admitted in the proceeding, the vulnerable person need not give any further evidence in the proceeding unless the court orders that this is necessary:
(a) to clarify the vulnerable person’s evidence given in the evidence recording hearing; or
(b) to give proper consideration of information or material that has become available since the evidence recording hearing; or
(c) in the interests of justice.
Note: This subsection covers further evidence that could otherwise be given on examination in chief, on cross‑examination or on re‑examination.
(2) If the court makes an order under subsection (1), the court must:
(a) order that the evidence is to be given in an evidence recording hearing; and
(b) ensure that the vulnerable person is questioned in the hearing only about the matters specified in the order.
(3) An order under subsection (1) may be made on the court’s own initiative or on application by or on behalf of a party to the proceeding, including the vulnerable person.
15YDH Division applies despite other rules of evidence
This Division has effect despite the Evidence Act 1995, any other law and any other rules of evidence or procedure.
Division 3—Cross‑examination
15YE Disallowing inappropriate or aggressive cross‑examination
(1) The court must disallow a question put to a person in cross‑examination in a proceeding if:
(a) the question is inappropriate or unnecessarily aggressive; and
(b) the person is a person to whom subsection (3) applies.
(2) In considering whether a question is inappropriate or unnecessarily aggressive, the court is to have regard to the person’s personal characteristics, including his or her age, culture, mental capacity and gender.
(3) This subsection applies to the following persons:
(a) for a child proceeding—a child witness;
(b) for a vulnerable adult proceeding—a vulnerable adult complainant;
(c) for a special witness proceeding—a special witness.
15YF Unrepresented defendants—cross‑examination of child complainants
(1) A defendant in a child proceeding who is not represented by counsel is not to cross‑examine a child complainant.
Note: A person is not to cross‑examine certain persons at committal proceedings or proceedings of a similar kind—see section 15YHA.
(2) A person appointed by the court is to ask the child any questions that the defendant requests the person to ask the child.
15YFA Unrepresented defendants—cross‑examination of vulnerable adult complainants
(1) A defendant in a vulnerable adult proceeding who is not represented by counsel is not to cross‑examine a vulnerable adult complainant.
Note: A person is not to cross‑examine certain persons at committal proceedings or proceedings of a similar kind—see section 15YHA.
(2) A person appointed by the court is to ask the vulnerable adult complainant any questions that the defendant requests the person to ask the complainant.
15YG Unrepresented defendants—cross‑examination of vulnerable persons
(1) A defendant in a proceeding who is not represented by counsel is not to cross‑examine a person to whom subsection (1A) applies (the vulnerable person), unless the court gives leave.
Note: A person is not to cross‑examine certain persons at committal proceedings or proceedings of a similar kind—see section 15YHA.
(1A) This subsection applies to the following persons:
(a) for a child proceeding—a child witness (other than a child complainant);
(c) for a special witness proceeding—a special witness for whom an order under subsection 15YAB(3) is in force for this section.
(2) The court must not give leave under subsection (1) unless satisfied that the vulnerable person’s ability to testify under cross‑examination will not be adversely affected if the defendant conducts the cross‑examination.
(3) In considering whether that ability will be adversely affected, the court is to have regard to any trauma that could be caused if the defendant conducts the cross‑examination.
(4) An application for leave under this section:
(aa) if the vulnerable person is a vulnerable adult complainant—may be made by or on behalf of the defendant or the vulnerable person; and
(a) must be in writing; and
(b) must not be determined before the court has considered such submissions and other evidence as it thinks necessary for determining the application.
(5) If the court refuses leave, a person appointed by the court is to ask the vulnerable person any questions that the defendant requests the person to ask the vulnerable person.
15YH Represented defendants—cross‑examination of vulnerable persons
(1) A defendant in a proceeding who is represented by counsel is not to cross‑examine, except through counsel, a person to whom subsection (2) applies.
Note: A person is not to cross‑examine certain persons at committal proceedings or proceedings of a similar kind—see section 15YHA.
(2) This subsection applies to the following persons: