(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 section.
15YHA Committal proceedings—cross‑examination of vulnerable persons
(1) A person is not to cross‑examine, at committal proceedings or proceedings of a similar kind, a person to whom subsection (2) applies.
(2) 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 for whom an order under subsection 15YAB(3) is in force for this section.
Division 4—Special facilities for vulnerable persons to give evidence
15YI Closed‑circuit television
(1) Subject to Division 2A, evidence in a proceeding from a person to whom subsection (1A) applies (the vulnerable person) must be given by means of closed‑circuit television unless:
(a) the vulnerable person is at least 16 and chooses not to give evidence by that means; or
(b) the court orders that the vulnerable person is not to give evidence by that means; or
(c) the court is not equipped with facilities for evidence to be given by means of closed‑circuit television.
Note: Section 15YL provides for alternative arrangements if a vulnerable person does not give evidence by means of closed‑circuit television.
(1A) 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 for whom an order under subsection 15YAB(3) is in force for this section.
(2) The court must not make an order under paragraph (1)(b) unless satisfied that it is not in the interests of justice for the vulnerable person’s evidence to be given by means of closed‑circuit television.
(3) This section does not affect the operation of any law in relation to the competence of a person to give evidence.
15YJ Giving evidence by closed‑circuit television
(1) If the vulnerable person’s evidence is given by means of closed‑circuit television from a location outside a courtroom:
(a) that location is taken to be part of the courtroom in which the proceeding is being held; and
(b) the court may order that a court officer be present at that location; and
(c) the court may order that another person be present with the vulnerable person:
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(i) to act as an interpreter; or
(ii) to assist the vulnerable person with any difficulty in giving evidence associated with a disability; or
(iii) to provide the vulnerable person with other support.
(2) An order under paragraph (1)(b) or (c) does not limit the operation of section 15YO (about accompanying adults).
(3) 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 by means of closed‑circuit television if:
(a) the court is not equipped with facilities for evidence to be given by means of closed‑circuit television; or
(b) the court otherwise considers it appropriate to do so.
15YK Viewing evidence given by closed‑circuit television
(1) If the vulnerable person’s evidence is given by means of closed‑circuit television, the facilities used are to be operated in such a way that the people who have an interest in the proceeding can see the vulnerable person, and any person present with the vulnerable person, on one or more television monitors.
(2) The following must be allowed to see the vulnerable person, and any person present with the vulnerable person, on one or more television monitors while the evidence is given:
(a) a defendant and the defendant’s legal representative (if any);
(b) if there is a jury in the proceeding—the members of the jury.
15YL Alternative arrangements for giving evidence
(1) If evidence in a proceeding from a person to whom subsection (3) applies is not to be given by means of closed‑circuit television (or under Division 2A), the court:
(a) must make arrangements in order to restrict contact (including visual contact) that the person may have with any defendant while giving evidence; and
(b) may make arrangements in order to restrict contact (including visual contact) that the person may have with members of the public while giving evidence.
(2) The arrangements may include either of the following:
(a) using screens;
(b) planning seating arrangements for people who have an interest in the proceeding, including:
(i) the level at which they are seated; and
(ii) the people in the person’s line of vision.
Persons to whom these alternative arrangements apply
(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 for whom an order under subsection 15YAB(3) is in force for this section;
unless that person is at least 16 and chooses not to give evidence under the arrangements.
15YLA Recording of evidence given in person
(1) The court must order that evidence given in person by a person to whom subsection (2) applies is to be recorded if:
(a) the court is satisfied that the evidence could be used in another proceeding; and
(b) the court is equipped with the necessary facilities; and
(c) the person agrees to the evidence being recorded.
(2) 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 for whom an order under subsection 15YAB(3) is in force for this section.
(3) The recording may be a video or audio recording.
(4) Subsection (1) applies whether or not the evidence is given by closed‑circuit television.
Division 5—Use of video or audio recordings of interviews
15YM Use of video or audio recordings of interviews
(1) A video or audio recording of an interview of a person to whom subsection (1A) applies in a proceeding may be admitted as evidence in chief if a constable, or a person of a kind specified in the regulations, conducted the interview.
(1A) 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 for whom an order under subsection 15YAB(3) is in force for this section.
(2) However, a recording that is an audio recording only must not be admitted under subsection (1) unless the court is satisfied that extraordinary circumstances require the use of audio recording only.
(4) Subject to Divisions 2A and 3, if a video or audio recording of an interview of a person is admitted as evidence in chief under subsection (1), the person must be available for cross‑examination and re‑examination.
Note 1: Division 4 provides for this evidence to be given using closed‑circuit television or other arrangements.
Note 2: Division 3 imposes limitations on cross‑examinations. For example, a person is not to cross‑examine certain persons at committal proceedings or proceedings of a similar kind—see section 15YHA.
Offence
(5) A person commits an offence if:
(a) the person:
(i) makes a recording (or other copy) of a recording, or a part of a recording, to which subsection (1) applies; or
(ii) does anything (whether directly or indirectly) to damage or alter a recording, or a part of a recording, to which subsection (1) applies; or
(iii) possesses or supplies a recording, or a part of a recording, to which subsection (1) applies; or
(iv) possesses or supplies a copy of a recording, or a part of a recording, to which subsection (1) applies; and
(b) the person does so without lawful authority or excuse.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
(6) The fault element for paragraph (5)(a) is intention.
15YN Admissibility of evidence given using video or audio recordings of interviews
(1) The admissibility of the evidence given by video or audio recording is not affected by the fact that it is evidence of previous representations that the person made in the interview that was being recorded.
(2) Evidence given by video or audio recording under section 15YM is not admissible if the court is satisfied that:
(a) any defendant in the proceeding (other than the person if the person is a defendant); or
(b) the defendant’s lawyer (if any);
was not given a reasonable opportunity to view or listen to the recording.
(3) The court may refuse to admit the whole or part of the contents of a recording adduced as evidence under section 15YM.
Division 5A—Special rules for later trials
15YNA When this Division applies
This Division applies if a proceeding (the original proceeding) involving the trial of one or more defendants:
(a) concludes and, on appeal, a new proceeding involving the trial of any or all of the defendants is ordered; or
(b) is discontinued and a new proceeding involving the trial of any or all of the defendants is ordered.
15YNB Original evidence admissible in new proceeding
(1) For the new proceeding, the prosecutor may prepare a record of all the evidence given by any person to whom subsection (4) applies (the vulnerable person) in the original proceeding if:
(a) the record is in a form, and is authenticated in a way, prescribed under subsection (5); and
(b) the prosecutor gives written notice to the court, and to the defendants in the new proceeding, of the prosecutor’s intention to tender that record as evidence in the new proceeding; and
(c) that notice is so given:
(i) at least 21 days before the court commences hearing the new proceeding; or
(ii) within such other period as the court allows.
Note: The record would include all the evidence given in the original proceeding by the vulnerable person (whether evidence on examination in chief, on cross‑examination or on re‑examination), which could include evidence recorded at an evidence recording hearing or in an interview.
(2) However, the prosecutor may alter or edit that record with the agreement of each defendant in the new proceeding.
(3) Both of the following are admissible as evidence in the new proceeding:
(a) a record of evidence prepared under subsection (1) and (2);
(b) the exhibits tendered in the original proceeding in connection with that evidence.
(4) This subsection applies to the following persons:
(a) if the original proceeding was a child proceeding—a child witness;
(b) if the original proceeding was a vulnerable adult proceeding—a vulnerable adult complainant;
(c) if the original proceeding was a special witness proceeding—a special witness for whom an order under subsection 15YAB(3) is in force for this section.
(5) The Minister may, in writing, prescribe the form, and ways for authenticating, records prepared under subsection (1).
15YNC Vulnerable person not to be made to give further evidence
(1) A vulnerable person whose evidence is included in a record admitted under section 15YNB need not give any further evidence in the new proceeding unless the court orders that this is necessary:
(a) to clarify the vulnerable person’s evidence given in the original proceeding; or
(b) to give proper consideration of information or material that has become available since the original proceeding; 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 is to ensure that the vulnerable person is questioned in the new proceeding 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 new proceeding.
(4) Despite subsection (1), the vulnerable person may seek leave of the court to give further evidence in the new proceeding. Subsections (1) and (2) cease to apply to the person if leave is given.
15YND Defendants’ access to video or audio recordings
(1) If a record prepared under subsections 15YNB(1) and (2) includes a video or audio recording, neither:
(a) the defendants in the new proceeding; nor
(b) their legal representatives in the new proceeding;
are entitled to be given the recording or a copy of it.
(2) However, they must be given reasonable access to the recording in order to view or listen to it.
Note: This may require access on more than one occasion.
15YNE Warnings etc. not to be given about vulnerable persons’ evidence
If there is a jury in the new proceeding, the judge is not to warn the jury, or suggest to the jury in any way, that the law requires greater or lesser weight to be given to evidence that is included in a record admitted under section 15YNB.
15YNF 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 6—Miscellaneous
15YO Adults accompanying vulnerable persons
(1) A person to whom subsection (1A) applies may choose an adult to accompany the person while the person is giving evidence in a proceeding or at an evidence recording hearing (including while giving evidence by closed‑circuit television).
(1A) 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 for whom an order under subsection 15YAB(3) is in force for this section.
(2) The adult chosen under subsection (1) may accompany the person as mentioned in subsection (1), unless the court determines that it is not appropriate for the adult to accompany the person.
(3) The court may permit more than one adult to accompany the person if the court considers it in the interests of justice to do so.
(4) An adult accompanying the person under this section must not:
(a) prompt the person or otherwise influence the person’s answers; or
(b) disrupt the questioning of the person.
(5) Any words spoken by an adult accompanying the person under this section must be able to be heard by:
(a) the judge; and
(b) if there is a jury in the proceeding—the members of the jury.
15YOA Right to interpreter
(1) If the court is satisfied that a person to whom subsection (2) applies is unable, because of inadequate knowledge of the English language or a disability, to communicate orally with reasonable fluency in that language, the court must arrange for the presence of an interpreter to assist the person to understand, and participate in, the proceeding.
(2) 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 for whom an order under subsection 15YAB(3) is in force for this section.
15YP Excluding people from the courtroom
The court may order that some or all of the members of the public be excluded from the courtroom in which any of the following persons is giving evidence in a proceeding:
(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 section.
15YQ Warnings etc. not to be given about vulnerable persons evidence
(1) If there is a jury in a proceeding in which a person to whom subsection (2) applies has given or will give evidence, the judge is not to warn the jury, or suggest to the jury in any way:
(a) that the law regards persons to whom subsection (2) applies as an unreliable class of witness; or
(b) that the law requires greater or lesser weight to be given to evidence that is given by closed‑circuit television or alternative arrangements under Division 4; or
(c) that the law requires greater or lesser weight to be given to evidence that is given by a video or audio recording under Division 5; or
(d) that the law requires greater or lesser weight to be given to evidence because an adult accompanies the person under section 15YO.
(2) 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.
15YR Publication identifying another person as a child witness, child complainant, vulnerable adult complainant or special witness
(1) A person commits an offence if:
(a) the person publishes any matter; and
(b) the person does not have the leave of the court to publish the matter; and
(c) the matter identifies, or is likely to lead to the identification of, another person (the vulnerable person) as:
(i) a child witness or child complainant in a child proceeding; or
(ii) a vulnerable adult complainant in a vulnerable adult proceeding; or
(iii) in the case of a special witness in a special witness proceeding for whom an order under subsection 15YAB(3) is in force for this subparagraph—a special witness in a special witness proceeding; and
(d) the vulnerable person is not a defendant in the proceeding.
Penalty: Imprisonment for 12 months, or 60 penalty units, or both.
(2) Subsection (1) does not apply if:
(a) the publication is in an official publication in the course of, and for the purpose of, the proceeding; or
(b) the publication is in a document prepared for use in particular legal proceedings (whether or not the legal proceedings are a proceeding within the meaning of this Part); or