Part 2—Witnesses
6—Oaths, affirmations etc
(1) An oath shall be administered and taken as follows:
(a) the person taking the oath shall hold a copy of the Bible (being a book that contains the New Testament, the Old Testament or both) in his hand and, after the oath has been tendered to him, shall say "I swear"; or
(b) in any other manner and form which the person taking the oath declares to be binding on his conscience; or
(c) in any other manner or form authorised or permitted by law.
(2) Where an oath has been lawfully administered and taken, the fact that the person taking the oath had no religious belief, or that the oath was not taken so as to be binding on his conscience, shall not affect, at law, the validity or effect of the oath.
(3) A person is permitted, and should be offered the choice, to make an affirmation instead of an oath in all circumstances in which, and for all purposes for which, an oath is required or permitted by law.
(4) An affirmation is to be administered to a person by asking the person "Do you solemnly and truly affirm" followed by the words of the appropriate oath (omitting any words of imprecation or calling to witness) after which the person must say "I do solemnly and truly affirm".
(5) Every affirmation has, at law, the same force and effect as an oath.
(6) No oath or affirmation is invalid by reason of a procedural or formal error or deficiency.
7—Oaths or affirmations taken before a court
(1) Every court has authority to administer an oath or an affirmation.
(2) Where an oath or affirmation is to be taken before a court, or in connection with proceedings before a court, it may be administered by—
(a) the court itself; or
(b) an officer of the court; or
(c) any person authorised by the court to administer the oath or affirmation; or
(d) any other person authorised by law to administer the oath or affirmation.
9—Unsworn evidence
(1) A person is presumed to be capable of giving sworn evidence in any proceedings unless the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
(2) If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that—
(a) the judge—
(i) is satisfied that the person understands the difference between the truth and a lie; and
(ii) tells the person that it is important to tell the truth; and
(b) the person indicates that he or she will tell the truth.
(3) In determining a question under this section, the judge is not bound by the rules of evidence, but may inform himself or herself as the judge thinks fit.
(4) If unsworn evidence is given under this section in a criminal trial, the judge—
(a) must explain to the jury the reason the evidence is unsworn; and
(b) may, and if a party so requests must, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(5) A justice to whom it appears that a person who desires to lay a complaint or information does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence may ascertain by inquiry the subject matter of the complaint or information and reduce it into the appropriate form, and any action or proceedings may be taken on the complaint or information in all respects as if the complainant or informant had deposed to the truth of the contents on oath or affirmation.
(6) Subject to this Act, this section does not apply to a statement made outside of a court admitted as evidence in any proceedings under an exception to the rule against hearsay at common law or under this Act.
12—Evidence of young children
(4) A young child who is called as a witness is, while giving evidence, entitled to have present in the court, and within reasonable proximity, a person of his or her choice to provide emotional support (but the person must not interfere in the proceedings).
(5) Unless the court otherwise allows, a witness or prospective witness in the proceedings cannot be chosen under subsection (4) to provide emotional support for a young child.
12A—Warning relating to uncorroborated evidence of child in criminal proceedings
(1) In a criminal trial, a judge must not warn the jury that it is unsafe to convict on a child's uncorroborated evidence unless—
(a) the warning is warranted because there are, in the circumstances of the particular case, cogent reasons, apart from the fact that the witness is a child, to doubt the reliability of the child's evidence; and
(b) a party asks that the warning be given.
(2) In giving any such warning, the judge is not to make any suggestion that the evidence of children is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults.
12AB—Pre‑trial special hearings
(a) the evidence of a witness to whom this section applies is necessary for the purposes of the trial of a charge of an offence to which this section applies; and
(b) the facilities necessary to take the evidence of the witness are readily available to the court and it is otherwise practicable to make arrangements for a special hearing to be convened as a proceeding preliminary to the trial (a pre‑trial special hearing); and
(c) the arrangements can be made without prejudice to any party to the proceedings,
the court should, on application under this section, order that arrangements be made relating to the giving of evidence by the witness at a pre‑trial special hearing.
(2) An order for a pre‑trial special hearing—
(a) must make provision for each of the following matters:
(i) that a hearing be convened as a proceeding preliminary to the trial of the charge of the offence for the purpose of taking the evidence of the witness in any setting that the court thinks fit in the circumstances (including an informal setting);
(ii) if the witness has a physical disability or cognitive impairment—that the evidence be taken in a particular way (to be specified by the court) that will, in the court's opinion, facilitate the taking of evidence from the witness or minimise the witness's embarrassment or distress (including, if the witness has complex communication needs, with such communication assistance as may be specified by the court);
Communication assistance for a witness may be provided, for example, by a communication partner or by using a device (such as a speak‑and‑spell communication device).
(iii) that an audio visual record of the evidence be made;
(iv) that the taking of evidence at the hearing be transmitted to the defendant by means of closed circuit television;
(v) if the defendant attends the hearing in person—that appropriate measures be taken to prevent the witness and the defendant from directly seeing or hearing each other before, during or after the hearing; and
(b) may make provision for the witness to be accompanied at the hearing by a relative, friend or other person, or by a canine court companion, for the purpose of providing emotional support; and
(c) may specify that the hearing is convened for any (or all) of the following purposes:
(i) examination of the witness;
(ii) cross‑examination of the witness;
(iii) re‑examination of the witness; and
(ca) may specify that the hearing include an initial hearing for the purpose of taking any evidence (if required), hearing submissions and making rulings as to the admissibility of any evidence and a subsequent hearing (or hearings) for the examination, cross‑examination or re‑examination of the witness to whom this section applies (if required) and any other matters; and
(d) may make provision for any other matter that the court thinks fit.
(3) An order must not be made for, or in, a pre‑trial special hearing if the effect of the order would be—
(a) to relieve a witness from the obligation to give sworn or unsworn evidence or to submit to cross‑examination (except where recorded evidence is admitted under section 13BA and permission of the court for further examination, cross‑examination or re‑examination of the witness is not granted); or
(c) to prevent the judge or defendant from observing the witness's demeanour in giving evidence (but the observation may be direct or by live transmission of the witness's voice and image); or
(d) to prevent the defendant from instructing counsel while the witness is giving evidence.
(4) If a witness to whom this section applies is accompanied by a person for the purpose of providing emotional support or communication assistance—
(a) the accompanying person must be visible to the judge while the witness is giving evidence; and
(b) if the defendant is prevented from seeing the accompanying person directly while the witness is giving evidence—the court must ensure that the defendant is able to observe that person by direct transmission of images of the witness together with that person while the witness is giving evidence; and
(c) the audio visual record of the evidence must show the accompanying person throughout the taking of the evidence.
(5) A person may only provide communication assistance—
(ii) takes an oath or makes an affirmation that he or she will communicate accurately with both the witness and the court; and
(b) in a case where a party to the proceedings disputes the person's ability or impartiality in providing communication assistance—if the judge is satisfied as to the person's ability and impartiality.
(6) The fact that a person has provided communication assistance to a witness in a pre‑trial special hearing under this section does not of itself prevent that person also from being called as a witness in the trial of the charge of the offence or in any other relevant proceedings.
(6a) If a witness to whom this section applies is accompanied by a canine court companion for the purpose of providing emotional support—
(a) the witness may also be accompanied by a person who will act as a handler for the dog and subsection (4) applies to the handler as if they were an accompanying person providing emotional support to the witness; and
(b) if practicable, the dog should not be visible in the audio visual record of the evidence.
(7) An application for a pre‑trial special hearing must—
(a) be made in writing by the party calling the witness to whom this section applies to give evidence; and
(b) be filed in the court as a proceeding preliminary to the commencement of the trial; and
(c) within 14 days of being filed in the court—be served on the other party to the proceedings (the respondent); and
(d) specify why the witness is a witness to whom this section applies and the reasons why the special hearing is sought; and
(e) otherwise be made in accordance with the rules of court.
(8) The respondent may, if of the opinion that the witness on whose behalf the application has been made is not in fact a witness to whom this section applies, within 14 days of being served with the application (the prescribed period), file an answering document in the court objecting to the application on that ground.
(9) If an objection to the application is filed within the prescribed period, the court must determine the application before the commencement of the trial—
(a) in the absence of the applicant and respondent; or
(b) by conducting a hearing in a room closed to the public.
(10) If no objection to the application is filed within the prescribed period, the court must, subject to subsection (1)(b) and (c), make an order for a pre‑trial special hearing pursuant to this section.
(11) An order for a pre‑trial special hearing may be varied or revoked on the court's own initiative, or on the application of a party to the proceedings.
(11a) If an order has been made for a pre-trial special hearing in relation to a witness in a trial of a charge of a child sexual offence, the court may also (at the time of making that order, at the pre‑trial special hearing or at any other time) give 1 or more of the following directions:
(a) a direction about the manner of questioning the witness;
(b) a direction about the duration of questioning the witness;
(c) a direction about the questions that may or may not be put to the witness;
(d) if there is more than 1 accused, a direction about the allocation among the accused of the topics about which the witness may be asked;
(e) a direction about the use of models, plans, body maps or similar aids to help communicate a question or an answer;
(f) a direction that if a party intends to lead evidence that contradicts or challenges the evidence of the witness or that otherwise discredits the witness, the party is not obliged to put that evidence in its entirety to the witness in cross-examination;
(g) any other direction the court thinks necessary for the fair and efficient conduct of the proceeding.
(12) Subject to this section, a pre‑trial special hearing will be conducted as the court thinks fit.
(13) At a pre‑trial special hearing the court may do any of the following:
(a) make orders under section 13BA as to the admission of any recorded evidence of the witness made pursuant to Part 17 Division 3 of the Summary Offences Act 1953;
(b) if any such recorded evidence is to be admitted—hear and determine any application for further examination, cross‑examination or re‑examination of the witness made pursuant to section 13BA;
(c) if no such recorded evidence exists or is to be admitted or if an application referred to in paragraph (b) is granted—permit examination, cross‑examination or re‑examination of the witness at the pre‑trial special hearing;
(d) make orders under section 13BA as to the admission of the audio visual record of any examination, cross‑examination or re‑examination of the witness at the pre‑trial special hearing;
(e) make orders (on the court's own initiative, or on the application of a party to the proceedings) as to any other matter that the court thinks fit (including, without limitation, any orders of a kind referred to in section 13A(2)).
(13a) The court may only permit examination, cross‑examination or re‑examination of the witness at the pre‑trial special hearing if the court is satisfied as to the witness's capacity to give sworn or unsworn evidence at the time of the pre‑trial special hearing.
(14) In this section—
trial of a charge of an offence to which this section applies means—
(a) the trial of a charge of a serious offence against the person; or
(b) the trial of a charge of an offence of contravening or failing to comply with an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009; or
(c) the trial of a charge of an offence of contravening or failing to comply with a restraining order under the Summary Procedure Act 1921;
witness to whom this section applies means—
(a) a young child; or
(b) a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions; or
(c) in the case of a trial of a charge of a child sexual offence, any of the following witnesses:
(i) an alleged victim of the offence (regardless of their age at the time of the trial);
(ii) a child;
(iii) a vulnerable witness;
(iv) any other witness if the court is satisfied that they should be allowed to give evidence in a manner contemplated by this section; or
(d) in the case of a trial of an offence involving domestic abuse (within the meaning of the Intervention Orders (Prevention of Abuse) Act 2009)—an alleged victim of the domestic abuse.
12AC—Effect of orders made at pre‑trial special hearing
(1) An order made by the court at the pre‑trial special hearing as to the admission of a recording of evidence of a witness (being an order under section 13BA) is taken to have been made for the purposes of the trial and, subject to subsection (2), is binding on the trial court provided that, during the course of the trial, the witness is available, if required, for further examination, cross‑examination or re‑examination.
(2) An order referred to in subsection (1) is not, however, binding on the trial court if the trial court is satisfied, on application by a party to proceedings and based only on matters that have arisen or become known after the making of the order at the pre‑trial special hearing, that the order should not be binding (either in respect of all or part of the evidence to which the order relates, as the court considers appropriate).
(3) Despite subsection (1), the witness cannot be further examined, cross‑examined or re‑examined at the trial on the evidence admitted pursuant to an order made at the pre‑trial special hearing without the permission of the trial court which may only be given—
(a) if the trial court is satisfied, on application by a party to proceedings, that a party to the proceedings has, since the pre‑trial special hearing, become aware of a matter of which the party could not reasonably have been aware at the time of the pre‑trial special hearing; or
(b) if the witness gives evidence in the trial apart from or in addition to evidence admitted pursuant to an order made at the pre‑trial special hearing and the trial court is satisfied that it is in the interests of justice that the witness be further examined, cross‑examined or re‑examined at the trial; or
(c) if the trial court is satisfied that it is otherwise in the interests of justice to permit the witness to be further examined, cross‑examined or re‑examined.
(4) A reference in this section to the trial court includes any subsequent trial following a stay of proceedings, discontinuance of an earlier trial or an appeal.
13—Special arrangements for protecting witnesses from embarrassment, distress etc when giving evidence
(a) it is desirable to make special arrangements for taking evidence from a witness in a trial in order to protect the witness from embarrassment or distress, to protect the witness from being intimidated by the atmosphere of the courtroom or for any other proper reason; and
(b) the facilities necessary for the special arrangements are readily available to the court and it is otherwise practicable to make the special arrangements; and
(c) the special arrangements can be made without prejudice to any party to the proceedings,
the court should, on its own initiative, order that special arrangements be made for taking the evidence of the witness.
(2) Without limiting the kind of order that may be made under this section, the court may make 1 or more of the following orders:
(a) an order that the evidence be given outside the trial court and transmitted to the trial court by means of closed circuit television;
(b) an order that the evidence be taken outside the trial court, and that an audio visual record of the evidence be made and replayed in the trial court;
(c) an order that a screen, partition or one-way glass be placed to obscure the view of a party to whom the evidence relates or some other person;
(d) an order that a defendant be excluded from the place where the evidence is taken, or otherwise be prevented from directly seeing and hearing the witness while giving evidence;
(e) an order that the witness be accompanied by a relative or friend, or by a canine court companion, for the purpose of providing emotional support;
(f) if the witness has a physical disability or cognitive impairment—an order that the evidence be taken in a particular way (to be specified by the court) that will, in the court's opinion, facilitate the taking of evidence from the witness or minimise the witness's embarrassment or distress.
(3) The court may, if of the opinion that expert evidence would assist the court to determine the special arrangements that should be made for taking the evidence of the witness, receive such evidence and, if the native language of the witness is not English and the witness is not reasonably fluent in English, evidence about any additional difficulty that may be caused by the witness giving evidence through an interpreter.
(4) Special arrangements made under this section may relate to the witness's evidence as a whole or to particular aspects of the witness's evidence, such as cross‑examination and re‑examination.
(5) An order must not be made under this section if the effect of the order would be—
(a) to relieve a witness from the obligation to give sworn evidence; or
(b) to relieve a witness from the obligation to submit to cross‑examination; or
(c) to prevent the judge, jury or defendant from observing the witness's demeanour in giving evidence (but the observation may be direct or by live transmission of the witness's voice and image or by replay of a recording of the witness's voice and image); or
(d) to prevent the defendant from instructing counsel while the witness is giving evidence.
(6) If a witness is accompanied by a relative or friend for the purpose of providing emotional support, that person must be visible to the judge and jury (if any) while the witness is giving evidence and, if, in consequence of an order under this section, a party is prevented from seeing that person directly while the witness gives evidence, the court must ensure that the party is able to observe that person either—
(a) by direct transmission of images of the witness together with that person while the witness is giving evidence; or
(b) by the later replay of a recording of images of the witness together with that person made while the witness was giving evidence.
(6a) If a witness is accompanied by a canine court companion for the purpose of providing emotional support, the following provisions apply:
(a) the witness may also be accompanied by a person who will act as a handler for the dog and subsection (6) applies to the handler as if they were an accompanying person providing emotional support to the witness;
(b) in a criminal trial—
(i) if the witness is accompanied by the dog while giving evidence before a jury—if practicable, the dog should not be visible to the jury while the witness is giving the evidence; and
(ii) if practicable, the dog should not be visible in any audio visual record of the evidence.
(7) If, in a criminal trial, a court makes special arrangements for taking the evidence of a witness, the judge must warn the jury not to draw from that fact any inference adverse to the defendant, and not to allow the special arrangements to influence the weight to be given to the evidence.
(8) An order under this section may be made, varied or revoked on the court's own initiative, or on the application of a party or witness.
13A—Special arrangements for protecting vulnerable witnesses when giving evidence in criminal proceedings
(a) a vulnerable witness is to give evidence in criminal proceedings; and
(b) the facilities necessary for the special arrangements are readily available to the court and it is otherwise practicable to make the special arrangements; and
(c) the special arrangements can be made without prejudice to any party to the proceedings,
the court must, on application under this section, order that special arrangements be made for taking the evidence of the witness.
(2) Without limiting the kind of order that may be made under this section, the court may make 1 or more of the following orders:
(a) an order that the evidence be given outside the trial court and transmitted to the trial court by means of closed circuit television;
(b) an order that the evidence be taken outside the trial court, and that an audio visual record of the evidence be made and replayed in the trial court;
(c) an order that a screen, partition or one‑way glass be placed to obscure the view of a party to whom the evidence relates or some other person;
(d) an order that a defendant be excluded from the place where the evidence is taken, or otherwise be prevented from directly seeing and hearing the vulnerable witness while giving evidence;
(e) an order that the evidence be taken in a particular way (to be specified by the court) that will, in the court's opinion, facilitate the taking of evidence from the vulnerable witness or minimise the witness's embarrassment or distress, including (for example)—
(i) that the witness be accompanied by a relative, friend or other person, or by a canine court companion, for the purpose of providing emotional support; and
(ii) if the witness has a physical disability or cognitive impairment—that the evidence be taken in a particular way (to be specified by the court) that will, in the court's opinion, facilitate the taking of evidence from the witness or minimise the witness's embarrassment or distress (including, if the witness has complex communication needs, with such communication assistance as may be specified by the court); and
Communication assistance for a vulnerable witness with complex communication needs may be provided, for example, by a communication partner or by using a device (such as a speak‑and‑spell communication device).
(iii) that extra allowance be made for breaks during, and time to be given for, the taking of evidence; and
(iv) that, while the evidence is being taken, the judge and any lawyer present in the court not wear a wig or gown (or both).
(3) Special arrangements made under this section may relate to the vulnerable witness's evidence as a whole or to particular aspects of the witness's evidence, such as cross‑examination and re‑examination.
(4) An order must not be made under this section if the effect of the order would be—
(a) to relieve a vulnerable witness from the obligation to give sworn evidence; or
(b) to relieve a vulnerable witness from the obligation to submit to cross‑examination; or
(c) to prevent the judge, jury or defendant from observing the vulnerable witness's demeanour in giving evidence (but the observation may be direct or by live transmission of the witness's voice and image or by replay of a recording of the witness's voice and image); or
(d) to prevent the defendant from instructing counsel while the vulnerable witness is giving evidence.
(5) If a vulnerable witness is accompanied by a person for the purpose of providing emotional support or communication assistance, that person must be visible to the judge and jury (if any) while the witness is giving evidence and, if, in consequence of an order under this section, a party is prevented from seeing that person directly while the witness gives evidence, the court must ensure that the party is able to observe that person either—
(a) by direct transmission of images of the witness together with that person while the witness is giving evidence; or
(b) by the later replay of a recording of images of the witness together with that person made while the witness was giving evidence.
(5a) A person may only provide communication assistance to a witness—
(ii) takes an oath or makes an affirmation that he or she will communicate accurately with both the witness and the court; and
(b) in a case where a party to the proceedings disputes the person's ability or impartiality in providing communication assistance—if the judge is satisfied as to the person's ability and impartiality.
(5b) The fact that a person has provided communication assistance to a witness in proceedings under this section does not of itself prevent that person also from being called as a witness to give evidence in the proceedings or in any other relevant proceedings.
(5c) If a witness is accompanied by a canine court companion for the purpose of providing emotional support, the following provisions apply:
(a) the witness may also be accompanied by a person who will act as a handler for the dog and subsection (5) applies to the handler as if they were an accompanying person providing emotional support to the witness;
(b) if the witness is accompanied by the dog while giving evidence before a jury—if practicable, the dog should not be visible to the jury while the witness is giving the evidence;
(c) if practicable, the dog should not be visible in any audio visual record of the evidence.
(6) An application for an order under this section must—
(a) be made in writing by the party calling the vulnerable witness to give evidence; and
(b) be filed in the court before the commencement of the trial; and
(c) within 14 days of being filed in the court—be served on the other party to the proceedings (the respondent); and
(d) specify the nature of the vulnerability of the witness, the special arrangements sought and the reasons for the arrangements; and
(e) otherwise be made in accordance with the rules of court.
(7) The respondent may, if of the opinion that the witness on whose behalf the application has been made is not in fact a vulnerable witness, within 14 days of being served with the application (the prescribed period), file an answering document in the court objecting to the application on that ground.
(8) If an objection to the application is filed within the prescribed period, the court must determine the application before the commencement of the trial—
(a) in the absence of the applicant and respondent; or
(b) by conducting a hearing in a room closed to the public.
(9) The court may, if of the opinion that expert evidence would assist the court to determine the special arrangements that should be made for taking the evidence of the vulnerable witness, receive such evidence and, if the native language of the witness is not English and the witness is not reasonably fluent in English, evidence about any additional difficulty that may be caused by the witness giving evidence through an interpreter.
(10) If no objection to the application is filed within the prescribed period, the court may order that appropriate special arrangements be made for taking the evidence of the vulnerable witness at the trial.
(11) The court—
(a) may dispense with special arrangements for taking the evidence of a vulnerable witness in criminal proceedings if—
(i) the witness is an adult; and
(ii) the court is satisfied that—
(A) the facilities necessary for the special arrangements are not readily available to the court; and
(B) taking into account the following matters, it is not reasonably practicable to make the facilities available:
• the cost, inconvenience and delay involved in procuring the necessary facilities or in adjourning to some other place where the necessary facilities are available;
• the urgency of the proceedings; and
(b) must give reasons for its decision.
(12) If, in a criminal trial, a court makes special arrangements for taking the evidence of a vulnerable witness, the judge must warn the jury not to draw from that fact any inference adverse to the defendant, and not to allow the special arrangements to influence the weight to be given to the evidence.
(13) An order under this section may be made, varied or revoked on the court's own initiative, or on the application of a party to the proceedings.
(14) If an order has been made under this section in relation to a witness in a trial of a charge of a child sexual offence, the court may also (at the time of making that order or at any other time) give 1 or more of the following directions:
(a) a direction about the manner of questioning the witness;
(b) a direction about the duration of questioning the witness;
(c) a direction about the questions that may or may not be put to the witness;
(d) if there is more than 1 accused, a direction about the allocation among the accused of the topics about which the witness may be asked;
(e) a direction about the use of models, plans, body maps or similar aids to help communicate a question or an answer;
(f) a direction that if a party intends to lead evidence that contradicts or challenges the evidence of the witness or that otherwise discredits the witness, the party is not obliged to put that evidence in its entirety to the witness in cross-examination;
(g) any other direction the court thinks necessary for the fair and efficient conduct of the proceeding.
13B—Cross‑examination of certain witnesses
(1) A defendant is not to be permitted to cross‑examine a witness who is the alleged victim of an offence to which this section applies—
(a) in a criminal trial (whether or not related to the offence) unless the cross‑examination is by counsel;
(b) in civil proceedings relating to the offence unless—
(i) the cross‑examination is by counsel; or
(ii) if the defendant is not legally represented in the proceedings—to be undertaken—
(A) by the defendant submitting to the judge, in the manner required by the judge, the questions the defendant proposes the witness be asked in cross‑examination and the judge (or the judge's delegate) asking the witness those of the questions submitted that are determined by the judge to be allowable in cross‑examination; or
(B) as otherwise directed by the judge.
(3) If a defendant is not legally represented in a criminal trial that will involve the taking of evidence from any such witness, the court must ensure that the defendant—
(a) has been warned of the limitation on the right of cross‑examination imposed by this section; and
(b) has been informed—
(i) that he or she may be entitled to legal assistance under the Legal Services Commission Act 1977;
(ii) in any case—of his or her rights under the Criminal Law (Legal Representation) Act 2001 to obtain the assistance of counsel for the purpose of cross‑examining the witness; and
(c) has had a reasonable opportunity to obtain the assistance of counsel before the evidence is taken.
(4) If, in a criminal trial, an unrepresented defendant obtains the assistance of counsel for the purpose of cross‑examining such a witness, the judge must—
(a) explain to the jury the limitation imposed by this section on the defendant's right to personally cross‑examine the witness; and
(b) warn the jury that no adverse inference may be drawn against the defendant from the requirement for the unrepresented defendant to obtain the assistance of counsel to cross‑examine the witness.
offence to which this section applies means—
(aa) an offence under section 24 of the Criminal Law Consolidation Act 1935; or
(a) a serious offence against the person; or
(ab) an aggravated offence under section 20 of the Criminal Law Consolidation Act 1935, where the aggravating circumstances of the offence are the circumstances referred to in section 5AA(1)(g) of that Act; or
(b) an offence of contravening or failing to comply with an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009; or
(c) an offence of contravening or failing to comply with a restraining order under the Summary Procedure Act 1921.
13BA—Admissibility of recorded evidence by certain witnesses in certain criminal proceedings
(1) Subject to this section, the court may, in the trial of a charge of an offence, or in a pre‑trial special hearing conducted in accordance with section 12AB, order that the evidence of a witness be admitted in the form of an audio visual record.
(2) Subject to subsection (2a), an application for an order under subsection (1) must—
(a) be made in writing by the party wishing to have the audio visual record of the evidence admitted under this section; and
(b) be filed in the court; and
(c) within 14 days of being filed in the court—be served on the other party to the proceedings (the respondent); and
(d) otherwise be made in accordance with the rules of court.
(2a) An application for an order to admit an audio visual record of the examination, cross‑examination or re‑examination of a witness at a pre‑trial special hearing may be made orally at the pre‑trial special hearing or in accordance with any directions of the court.
(3) An audio visual record of the evidence of a witness may be admitted under this section if the recording—
(a) has been made in a pre‑trial special hearing conducted in accordance with section 12AB; or
(b) has been made pursuant to Part 17 Division 3 of the Summary Offences Act 1953 and—
(i) the court is satisfied as to the witness's capacity to give sworn or unsworn evidence at the time the recording was made; and
(ii) the court is satisfied that the respondent has been given a reasonable opportunity to view the recording; and
(iii) the witness is available, if required, for further examination, cross‑examination or re‑examination during the course of the trial or, if the order for admission of the recording is being sought in a pre‑trial special hearing under section 12AB, during the course of the pre‑trial special hearing.
(4) The court's discretion to exclude evidence is not affected by subsection (3) and the court may—
(a) rule as inadmissible the whole or any part of the recording; or
(b) before admitting the recording, order that it be edited so as to exclude evidence that is inadmissible for any reason.
(5) Despite subsection (3)(b)(iii), the witness cannot be further examined, cross‑examined or re‑examined on the evidence admitted under this section without the permission of the court which may only be given, on application by a party to the proceedings—
(a) if the court is satisfied that a party to the proceedings has, since the making of the audio visual record, become aware of a matter of which the party could not reasonably have been aware at the time the record was made; or
(b) if the witness gives evidence in the trial or, if the order for admission of the recording is being sought in a pre‑trial special hearing under section 12AB, during the course of the pre‑trial special hearing, apart from or in addition to evidence admitted under this section in the form of an audio visual record and the court is satisfied that it is in the interests of justice that the witness be further examined, cross‑examined or re‑examined; or
(c) if the court is satisfied that it is otherwise in the interests of justice to permit the witness to be further examined, cross‑examined or re‑examined.
(6) If a court admits evidence in the form of an audio visual record under this section, the judge must—
(a) explain to the jury that the law allows the court to admit evidence in this form; and
(b) warn the jury—
(i) not to draw from the admission of evidence in that form any inference adverse to the defendant; and
(ii) not to allow the admission of evidence in that form to influence the weight to be given to the evidence.
13BB—Admissibility of recorded evidence in domestic violence proceedings
(1) This section applies in addition to section 13BA and any other law allowing evidence to be admitted in the form of a recording.
(2) In proceedings for a domestic violence offence, the evidence of a complainant may be admitted in the form of a recording made by a police officer—
(a) if—
(i) the evidence is in the form of a prescribed recording; and
(ii) the court is satisfied as to the complainant's capacity to give sworn or unsworn evidence at the time the recording was made; and
(iii) the court is satisfied that the defendant has been given a reasonable opportunity to listen to or view the recording; and
(iv) during the course of the trial, the complainant is available, if required, for further examination, cross‑examination or re‑examination; or
(b) if the court is satisfied that the interests of justice require the admission of the evidence (whether or not any of the requirements specified in paragraph (a) are satisfied).
(3) The court's discretion to exclude evidence is not affected by this section and the court may—
(a) rule as inadmissible the whole or any part of the recording; or
(b) before admitting the recording, order that it be edited so as to exclude evidence that is inadmissible for any reason.
(4) Despite subsection (2)(a)(iv) but subject to subsections (5) and (6), the complainant cannot be further examined, cross‑examined or re‑examined on the evidence admitted in the trial without the permission of the court which may only be given, on application by a party to the proceedings, if—
(a) the court is satisfied that a party to the proceedings has, since the making of the recording, become aware of a matter of which the party could not reasonably have been aware at the time the recording was made; or
(b) the complainant gives evidence in the trial apart from, or in addition to, evidence admitted under this section in the form of a recording and the court is satisfied that it is in the interests of justice that the complainant be further examined, cross‑examined or re‑examined; or
(c) the court is satisfied that it is otherwise in the interests of justice to permit the complainant to be further examined, cross‑examined or re‑examined.
(5) The prosecution may, with the permission of the court and in accordance with any directions of the court, question the complainant about—
(a) evidence given by the complainant that is unfavourable to the prosecution case; or
(b) a matter of which the complainant may reasonably be supposed to have knowledge and about which it appears to the court the complainant is not, in examination‑in‑chief, making a genuine attempt to give evidence; or
(c) whether the complainant has, at any time, made a prior inconsistent statement,
(and, for the avoidance of doubt, the requirements of subsection (4)(a), (b) and (c) do not apply to the giving of permission under this subsection).
(6) Questioning under subsection (5) must be conducted as if it were (and is, for the purposes of this Act other than provisions relating to re-examination, taken to be) cross‑examination.
(7) Subsections (5) and (6) apply in addition to section 27.
(8) If a court admits evidence in the form of a recording under this section, the judge must—
(a) explain to the jury that the law allows the court to admit evidence in this form; and
(b) warn the jury—
(i) not to draw from the admission of evidence in that form any inference adverse to the defendant; and
(ii) not to allow the admission of evidence in that form to influence the weight to be given to the evidence.
(9) Without limiting section 73, the regulations may—
(a) prescribe additional requirements in relation to recordings under this section; and
(b) require that additional material be provided to the court with a recording in certain circumstances (such as a transcript or translation); and
(c) prescribe requirements in relation to access to, or service of, recordings and other material; and
(d) prescribe requirements in relation to custody of recordings; and
(e) impose restrictions on copying or distribution of recordings.
(10) In this section—
complainant, in proceedings for a domestic violence offence, means the person against whom the domestic violence offence is alleged to have been committed, but does not include a person who—
(a) is under 16 years of age; or
(b) is cognitively impaired;
domestic violence offence means any offence involving domestic abuse (within the meaning of the Intervention Orders (Prevention of Abuse) Act 2009);
informed consent means consent given in accordance with requirements prescribed by the regulations;
prescribed recording means a recording made by a police officer of a representation made by a complainant when the complainant was questioned by a police officer in connection with the investigation of the commission of a domestic violence offence where—
(a) the questioning occurred as soon as practicable after the commission of the offence; and
(b) the recording was made with the informed consent of the complainant; and
(c) the recording contains the following statements by the complainant:
(i) a statement as to the complainant's age;
(ii) a statement as to the truth of the representation;
(iii) any other matter required by the regulations or by rules of court;
recording means an audio record or an audio visual record.
13C—Court's power to make audio visual record of evidence of vulnerable witnesses in criminal proceedings
(1) If a vulnerable witness is to give evidence in criminal proceedings, the following provisions apply:
(a) in the case of a vulnerable witness who is the alleged victim of a child sexual offence—the court must order that an audio visual record be made of the witness's evidence before the court (unless an order has already been made in respect of the witness's evidence under section 12AB(2)(a) or 13A(2)(b));
(b) in the case of any other vulnerable witness—the court may, on application by the prosecution, order that an audio visual record be made of the witness's evidence before the court if—
(i) the facilities necessary for making an audio visual record of the evidence are readily available to the court; and
(ii) it is otherwise practicable to make such a record.
(2) Subject to subsection (3), an audio visual record of evidence (whether made by order under this section, section 12AB(2)(a) or 13A(2)(b)) is to be kept in the custody of the court.
(2a) Rules of court may be made regulating access to, and responsibility for, an audio visual record in the custody of the court.
(3) The court (or a superior court) may authorise a person to take custody of the audio visual record of evidence, or to have some other form of access to it, if satisfied that the custody or access is reasonably necessary for the purposes of related proceedings that have been commenced or are in contemplation.
(4) Despite any other law, access to an audio visual record of evidence is not to be allowed except as provided by this section.
13D—Court's power to admit evidence taken in earlier proceedings
(1) If, on application by a party to civil or criminal proceedings before a court, the court is satisfied that—
(a) evidence given by a witness in earlier criminal proceedings is relevant to the proceedings before the court; and
(b) the witness—
(i) has died; or
(ii) has become too ill or infirm to give evidence; or
(iii) has not, after diligent search, been found; or
(iv) is a vulnerable witness,
the court in the later proceedings has a discretion to admit an official record of the evidence.
(2) An official record of evidence is a record made at the direction or with the approval of the court before which the evidence was taken and, if an audio or audio visual record of the evidence was taken at the direction or with the approval of the court, in addition to a written transcript, the official record of evidence includes the audio or audio visual record.
(3) Before the court admits an official record into evidence in proceedings under this section, the record must be edited—
(a) as agreed between the parties to those proceedings so as to exclude material that is not relevant to those proceedings; and
(b) so as to exclude evidence that is inadmissible in those proceedings for any other reason.
(4) If the court admits an official record into evidence under this section, it may relieve the witness, wholly or in part, from an obligation to give evidence in the later proceedings.
14—Entitlement of a witness to be assisted by an interpreter
(a) the native language of a witness who is to give oral evidence in any proceedings is not English; and
(b) the witness is not reasonably fluent in English,
the witness is entitled to give that evidence through an interpreter.
(1a) A person may only act as an interpreter—
(a) if the person takes an oath or makes an affirmation to interpret accurately; and
(b) in a case where a party to the proceeding disputes the person's ability or impartiality as an interpreter, if the judge is satisfied as to the person's ability and impartiality.
(2) An affidavit or other written deposition in a language other than English shall be received in evidence in the same circumstances as an affidavit or other written deposition in English if it has annexed to it—
(a) a translation of its contents into English; and
(b) an affidavit by the translator to the effect that the translation accurately reproduces in English the contents of the original.
14A—Entitlement of witness to be given communication assistance in certain circumstances
(a) a witness in proceedings is a person with complex communication needs; and
(b) assistance of a kind to meet the needs of the witness with understanding and communicating with the court during proceedings is readily available and it is otherwise practicable to make the assistance available,
the court may, on application under this section or on its own initiative, order that the evidence be given by the witness using assistance of a kind specified in the order (communication assistance).
(2) An order under this section need not be made in respect of a witness if the court is satisfied that the witness is able to understand and communicate with the court during the proceedings, including the ability to answer questions put orally and respond to them.
(3) Without limiting the kind of order that may be made under this section, the court may make 1 or more of the following orders:
(a) an order that the witness be accompanied by a communication partner;
(b) an order that the witness use a device or device of a kind, approved by the court, for the purpose of facilitating the taking of evidence from the witness;
(c) an order that the evidence be taken in some other particular way (to be specified by the court) that will, in the court's opinion, facilitate the taking of evidence from the witness.
(4) A person may only provide communication assistance to a witness—
(ii) takes an oath or makes an affirmation that he or she will communicate accurately with both the witness and the court; and
(b) in a case where a party to the proceeding disputes the person's ability or impartiality in providing communication assistance—if the judge is satisfied as to the person's ability and impartiality.
15—Witness not disqualified by interest or crime
No person shall be excluded from giving evidence on the ground—
(a) that he has or may have an interest in the matter in question or in the event of the proceeding, or
(b) that he has previously been convicted of any crime or offence.
16—Parties and their spouses competent and compellable in civil proceedings
In any proceeding not being a criminal proceeding the parties thereto and the persons on whose behalf such proceeding is brought or defended, and the spouses of such parties or persons respectively, shall, subject to the provisions of this Act, be competent and compellable to give evidence on behalf of either or any of the parties to such proceeding.
18—Accused persons competent to give evidence
(1) Every person charged with an offence shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person: Provided as follows:
(a) a person so charged shall not be called as a witness in pursuance of this Act except upon his own application;
(b) the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution;
(c) a person charged and being a witness in pursuance of this Act may be asked any question in cross-examination notwithstanding that it would tend to criminate him as to the offence charged;
(d) a person charged and called as a witness in pursuance of this Act shall not be asked, and if asked, shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless—
(i) the evidence to be elicited by the question is admissible as tending to show that he is guilty or not guilty of the offence with which he is charged; or
(ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character or has given evidence of his good character; or
(iii) he forfeits the protection of this paragraph by virtue of subsection (2); or
(iv) he has given evidence against any other person charged with the same offence;
(e) every person called as a witness in pursuance of this Act shall, unless otherwise ordered by the court, give his evidence from the witness box or other place from which the other witnesses give their evidence;
(f) nothing herein contained shall affect the provisions of section 110 of the Justices Act 1921.
(2) A defendant forfeits the protection of subsection (1)(d) if—
(a) the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or a witness for the prosecution; and
(b) the imputations are not such as would necessarily arise from a proper presentation of the defence.
(3) Notwithstanding the provisions of subsection (2), a defendant does not forfeit the protection of subsection (1)(d) by reason of imputations on the character of the prosecutor or a witness for the prosecution arising from evidence of the conduct of the prosecutor or witness—
(a) in the events or circumstances on which the charge is based; or
(b) in the investigation of those events or circumstances, or in assembling evidence in support of the charge; or
(c) in the course of the trial, or proceedings preliminary to the trial.
18A—Abolition of right to make unsworn statement
A person charged with an offence is not entitled to make at the trial for the offence any unsworn statement of fact in defence of the charge (except in the course of giving unsworn evidence under section 9).
21—Competence and compellability of witnesses
(1) A close relative of a person charged with an offence is competent and compellable to give evidence for the defence and, subject to this section, is competent and compellable to give evidence for the prosecution.
(2) If a person is charged with an offence and a close relative of the accused is required by law (whether by subpoena or other process) to give evidence against the accused in any proceedings related to the charge (including proceedings for the grant, variation or revocation of bail, or an appeal at which fresh evidence is to be taken), the prospective witness may apply to the court for an exemption from the requirement to give evidence against the accused in the proceedings.
(3) If, on an application under subsection (2), the court considers that—
(a) if the prospective witness were to give evidence, or evidence of a particular kind, against the accused, there would be a substantial risk of—
(i) serious harm to the relationship between the prospective witness and the accused; or
(ii) serious harm of a material, emotional or psychological nature to the prospective witness; and
(b) having regard to the nature and gravity of the alleged offence and the importance to the proceedings of the evidence that the prospective witness is in a position to give, there is insufficient justification for exposing the prospective witness to that risk,
the court may exempt the prospective witness (wholly or in part) from the requirement to give evidence against the accused in the proceedings before the court.
(4) A court may, on its own initiative, grant an exemption under subsection (3) where no application has been made under subsection (2) if—
(a) the prospective witness who is required by law to give evidence against the accused is a young child or is cognitively impaired; and
(b) the court is of the opinion that such an exemption should be granted.
(5) Despite subsection (4), in proceedings in which a close relative of an accused person is called as a witness against the accused, the court is not required to make any inquiry about whether the prospective witness—
(a) is aware of his or her right to apply for an exemption under this section; or
(b) is incapable (whether by reason of age or some other reason) of understanding his or her right to apply for an exemption under this section.
(6) If a court is constituted of a judge and jury—
(a) an application for an exemption under this section must be heard and determined by the judge in the absence of the jury; and
(b) the following matters may not be made the subject of a question put to a witness in the presence of the jury or of any comment to the jury by counsel or the judge:
(i) whether or not a person applied for an exemption under this section;
(ii) whether or not the court considered granting an exemption under this section;
(iii) whether a person has been granted or refused an exemption under this section.
(7) A decision or order of a court made under this section, or the failure of a court to make an inquiry under subsection (5), does not give rise to a ground of appeal under section 157(1)(a)(i) or (ii) of the Criminal Procedure Act 1921.
(8) This section does not operate to make a person who has been charged with an offence compellable to give evidence in proceedings related to that charge.
(9) In this section—
close relative of an accused person means a spouse, domestic partner, parent or child.
22—Certain questions may be disallowed
In any proceeding in any court, whether civil or criminal, the judge may disallow any questions put in cross-examination of any party or other witness which may appear to him to be vexatious and not relevant to any matter proper to be inquired into in the proceeding.
23—Rules as to relevancy
In deciding whether a question affecting the credibility of a witness is relevant, or ought to be allowed, the judge shall have regard to the following considerations:
(a) such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies;
(b) such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect only in a slight degree, the opinion of the court as to the credibility of the witness on the matter to which he testifies;
(c) such questions are improper if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his evidence.
24—Disallowance of certain questions in cross-examination
(1) If any question put to a witness upon cross-examination relates to a matter not relevant to the proceeding, except in so far as it affects the credit of the witness by injuring his character, it shall be the duty of the court to decide whether or not the witness shall be compelled to answer it, and the court may, if it thinks fit, inform the witness that he is not obliged to answer it.
(2) In exercising this discretion the court shall have regard to the considerations referred to in section 23.
25—Disallowance of inappropriate questions
(1) A question is an inappropriate question if—
(a) the question is misleading or confusing; or
(ab) the question is expressed in language that is unnecessarily complicated; or
(b) the question is apparently based on a stereotype, including a sexual, racial, ethnic or cultural stereotype or a stereotype based on age or physical or mental disability; or
(c) the question is unnecessarily repetitive, offensive or oppressive, or is 1 of a series of questions that is unnecessarily repetitive, offensive or oppressive; or
(d) the question is put in a humiliating, insulting or otherwise inappropriate manner or tone.
(2) A question is not, however, inappropriate only because—
(a) it challenges the truthfulness of the witness, or the consistency or accuracy of statements made by the witness; or
(b) it deals with matters the witness would find distasteful or intrudes on the witness's privacy.
(3) If an inappropriate question is put to a witness in cross‑examination, the court must—
(a) disallow the question; and
(b) inform the witness that the question need not be answered.
(4) In determining whether a question is inappropriate, the court may take into account—
(a) the age, personality and educational level of the witness; and
(b) any physical disability or cognitive impairment of the witness; and
(c) the witness's ethnic and cultural background; and
(d) any other characteristics of the witness that may be relevant; and
(e) the context in which the question is put, including—
(i) the nature of the proceedings and, if the proceedings are criminal proceedings, the nature of the offence to which they relate; and
(ii) the relationship (if any) between the witness and a party to the proceedings; and
(f) any other relevant factor.
(5) The failure to exercise the discretion in relation to a question does not affect the admissibility of any answer given in response to the question.
25A—Abolition of oath belief rule
The rule of law or practice known as the oath belief rule that allows a witness in a trial to be questioned and express an opinion about whether the evidence given on oath by another witness in court is credible is abolished.
See R v J, SM [2013] SASFC 96
26—Proof of previous conviction of witness may be given
A witness may, subject to any other provisions of this Act, be questioned as to whether he has been convicted of any offence, and upon being so questioned, if he either denies or does not admit the fact, or refuses to answer, it shall be lawful for the cross-examining party to prove such conviction.
27—How far a party may discredit his or her own witness
A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but if the judge is of opinion that the witness is adverse, the party may—
(a) contradict the witness by other evidence; or
(b) with the permission of the judge, prove that the witness has made, at any other time, a statement inconsistent with his present testimony: Provided that, before giving such last-mentioned proof, the circumstances of the supposed statement sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made the statement.
28—Proof of contradictory statements of adverse witness
If any witness, upon cross-examination as to a former statement made by him, relative to the subject matter of the cause, and inconsistent with his present testimony, does not distinctly admit that he has made the statement, proof may be given that he did in fact make it; but before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made the statement.
29—Cross-examination as to previous statements in writing
A witness may be cross-examined as to previous statements made by him in writing, or reduced into writing, relative to the subject matter of the cause, without the writing being shown to him; but if it is intended to contradict the witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always, that the judge, at any time during the trial, may require the production of the writing for his inspection; and may thereupon make such use of it, for the purposes of the trial, as he thinks fit.
29A—Victim or alleged victim who is a witness entitled to be present in court unless court orders otherwise
(1) A court in a criminal proceeding may only order a victim, or alleged victim, of the offence who is a witness in the proceeding to leave the courtroom until required to give evidence if the court considers it appropriate to do so, whether to ensure a fair trial or for any other reason.
(2) Nothing in this section prevents a court from ordering a victim, or alleged victim, who is a witness in the proceeding to leave the courtroom at any time after giving evidence if the court considers it appropriate to do so.
29B—Prohibited direction in relation to doubts regarding truthfulness or reliability of victim's evidence
(1) In a trial in which more than one offence is charged, the trial judge must not direct the jury that if the jury doubts the truthfulness or reliability of the victim's evidence in relation to a charge, that doubt must be taken into account in assessing the truthfulness or reliability of the victim's evidence generally or in relation to other charges.
(2) Any rule of common law under which a trial judge is required or permitted to give the jury a direction referred to in subsection (1) is abolished.
29C—Evidence of opinions based on specialised knowledge of child behaviour etc
(1) Despite any other provision of this Act, or any other Act or law, if a person has specialised knowledge, based on the person's training, study or experience, of child development and child behaviour then evidence of that person's opinion that is wholly or substantially based on that specialised knowledge is admissible in proceedings relating to sexual abuse of a child.
(2) A reference in subsection (1) to an opinion of a person includes a reference to an opinion relating to—
(a) the development and behaviour of children generally; or
(b) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.
sexual abuse of a child includes any unlawful conduct of a sexual nature committed to, or in relation to, a child.