sec.21AEvidence of special witnesses

### sec.21A Evidence of special witnesses This section applies if a special witness is to give or is giving evidence in any proceeding. This section does not apply to a child to the extent division 4A applies to the child. The court may, of its own motion or upon application made by a party to the proceeding, make or give 1 or more of the following orders or directions— in the case of a criminal proceeding—that the person charged or other party to the proceeding— be excluded from the room in which the court is sitting while the special witness is giving evidence or is required to appear in court for any other purpose; or be obscured from the view of the special witness while the special witness is giving evidence or is required to appear in court for any other purpose; that, while the special witness is giving evidence, all persons other than those specified by the court be excluded from the room in which it is sitting; that the special witness give evidence in a room— other than that in which the court is sitting; and from which all persons other than those specified by the court are excluded; that a person approved by the court be present while the special witness is giving evidence or is required to appear in court for any other purpose in order to provide emotional support to the special witness; that a videorecording of the evidence of the special witness or any portion of it be made under such conditions as are specified in the order and that the videorecorded evidence be viewed and heard in the proceeding instead of the direct testimony of the special witness; another order or direction the court considers appropriate about the giving of evidence by the special witness, including, for example, any of the following— a direction about rest breaks for the special witness; a direction that questions for the special witness be kept simple; a direction that questions for the special witness be limited by time; a direction that the number of questions for a special witness on a particular issue be limited. In the case of a relevant proceeding, the court must, on the application of a party to the proceedings, make or give an order or direction under subsection (2) (a) (ii) , (c), (d), or (e) unless— the court is satisfied that it would not be in the interests of justice to do so; or subject to subsection (9) , appropriate equipment and facilities are unavailable to accommodate an order or direction under those paragraphs. A party to a proceeding who seeks to apply under subsection (2) or (3) for an order or direction must give reasonable notice to each other party of their intention to apply. Subject to any order made pursuant to subsection (5) , in any criminal proceeding, including a relevant proceeding, an order shall not be made pursuant to subsection (2) (a) , (b) or (c) excluding the person charged from the room in which a special witness is giving evidence unless provision is made, by means of an electronic device or otherwise, for that person to see and hear the special witness while the special witness is giving evidence. An order must not be made under subsection (2) (b) or (c) or (5) excluding from the room in which a special witness is giving evidence an intermediary under division 4C for the witness. Where the making of a videorecording of the evidence of a special witness is ordered pursuant to subsection (2) (e) , the court may further order that all persons other than those specified by the court be excluded from the room in which the special witness is giving that evidence. However, any person entitled in the proceeding to examine or cross-examine the special witness shall be given reasonable opportunity to view any portion of the videorecording of the evidence relevant to the conduct of that examination or cross-examination. A videorecording made under this section of evidence given by a special witness, or a lawfully edited copy of the videorecording— is as admissible as if the evidence were given orally in the proceeding in accordance with the usual rules and practice of the court; and is, unless the relevant court otherwise orders, admissible in— any rehearing or retrial of, or appeal from, the proceeding; or in the case of evidence given for a criminal proceeding— another proceeding in the same court for the relevant charge or for another charge arising out of the same, or the same set of, circumstances; or a civil proceeding arising from the commission of the offence. A reference in subsection (6) to a videorecording made under this section includes a reference to a copy of the videorecording on a separate data storage medium if— the videorecording is a digital recording; and the copy of the videorecording on the separate data storage medium has been made by— the principal registrar of a court; or a person authorised by the principal registrar of a court to copy the videorecording onto the separate data storage medium. The room in which a special witness gives evidence pursuant to an order made pursuant to subsection (2) (c) or (e) shall be deemed to be part of the court in which the proceeding is being held. If evidence is given or presented, or to be given or presented, in a proceeding on indictment under an order or direction under subsection (2) (a) to (e) or section 21AAA (2) , the judge presiding at the proceeding must instruct the jury that— they should not draw any inference as to the defendant’s guilt from the order or direction; and the probative value of the evidence is not increased or decreased because of the order or direction; and the evidence is not to be given any greater or lesser weight because of the order or direction. To remove any doubt, it is declared that the court may make any other order it thinks fit to facilitate an order or direction under subsection (2) (a) (ii) , (c), (d), or (e) made pursuant to an application under subsection (3) . s 21A ins 1989 No. 17 s 63 amd 1995 No. 58 s 4 sch 1 ; 2000 No. 43 s 46 ; 2003 No. 55 s 59 ; 2009 No. 53 s 153 ; 2015 No. 17 s 11 ; 2016 No. 62 s 173 ; 2017 No. 6 s 30 ; 2017 No. 8 s 8 ; 2018 No. 23 s 28 ; 2020 No. 15 s 75 ; 2020 No. 32 s 42 ; 2024 No. 5 s 68 ; 2024 No. 48 ss 16 , 18 (sec.21A-ssec.1) This section applies if a special witness is to give or is giving evidence in any proceeding. (sec.21A-ssec.1A) This section does not apply to a child to the extent division 4A applies to the child. (sec.21A-ssec.2) The court may, of its own motion or upon application made by a party to the proceeding, make or give 1 or more of the following orders or directions— in the case of a criminal proceeding—that the person charged or other party to the proceeding— be excluded from the room in which the court is sitting while the special witness is giving evidence or is required to appear in court for any other purpose; or be obscured from the view of the special witness while the special witness is giving evidence or is required to appear in court for any other purpose; that, while the special witness is giving evidence, all persons other than those specified by the court be excluded from the room in which it is sitting; that the special witness give evidence in a room— other than that in which the court is sitting; and from which all persons other than those specified by the court are excluded; that a person approved by the court be present while the special witness is giving evidence or is required to appear in court for any other purpose in order to provide emotional support to the special witness; that a videorecording of the evidence of the special witness or any portion of it be made under such conditions as are specified in the order and that the videorecorded evidence be viewed and heard in the proceeding instead of the direct testimony of the special witness; another order or direction the court considers appropriate about the giving of evidence by the special witness, including, for example, any of the following— a direction about rest breaks for the special witness; a direction that questions for the special witness be kept simple; a direction that questions for the special witness be limited by time; a direction that the number of questions for a special witness on a particular issue be limited. (sec.21A-ssec.3) In the case of a relevant proceeding, the court must, on the application of a party to the proceedings, make or give an order or direction under subsection (2) (a) (ii) , (c), (d), or (e) unless— the court is satisfied that it would not be in the interests of justice to do so; or subject to subsection (9) , appropriate equipment and facilities are unavailable to accommodate an order or direction under those paragraphs. (sec.21A-ssec.3A) A party to a proceeding who seeks to apply under subsection (2) or (3) for an order or direction must give reasonable notice to each other party of their intention to apply. (sec.21A-ssec.4) Subject to any order made pursuant to subsection (5) , in any criminal proceeding, including a relevant proceeding, an order shall not be made pursuant to subsection (2) (a) , (b) or (c) excluding the person charged from the room in which a special witness is giving evidence unless provision is made, by means of an electronic device or otherwise, for that person to see and hear the special witness while the special witness is giving evidence. (sec.21A-ssec.5AA) An order must not be made under subsection (2) (b) or (c) or (5) excluding from the room in which a special witness is giving evidence an intermediary under division 4C for the witness. (sec.21A-ssec.5) Where the making of a videorecording of the evidence of a special witness is ordered pursuant to subsection (2) (e) , the court may further order that all persons other than those specified by the court be excluded from the room in which the special witness is giving that evidence. (sec.21A-ssec.5A) However, any person entitled in the proceeding to examine or cross-examine the special witness shall be given reasonable opportunity to view any portion of the videorecording of the evidence relevant to the conduct of that examination or cross-examination. (sec.21A-ssec.6) A videorecording made under this section of evidence given by a special witness, or a lawfully edited copy of the videorecording— is as admissible as if the evidence were given orally in the proceeding in accordance with the usual rules and practice of the court; and is, unless the relevant court otherwise orders, admissible in— any rehearing or retrial of, or appeal from, the proceeding; or in the case of evidence given for a criminal proceeding— another proceeding in the same court for the relevant charge or for another charge arising out of the same, or the same set of, circumstances; or a civil proceeding arising from the commission of the offence. (sec.21A-ssec.6A) A reference in subsection (6) to a videorecording made under this section includes a reference to a copy of the videorecording on a separate data storage medium if— the videorecording is a digital recording; and the copy of the videorecording on the separate data storage medium has been made by— the principal registrar of a court; or a person authorised by the principal registrar of a court to copy the videorecording onto the separate data storage medium. (sec.21A-ssec.7) The room in which a special witness gives evidence pursuant to an order made pursuant to subsection (2) (c) or (e) shall be deemed to be part of the court in which the proceeding is being held. (sec.21A-ssec.8) If evidence is given or presented, or to be given or presented, in a proceeding on indictment under an order or direction under subsection (2) (a) to (e) or section 21AAA (2) , the judge presiding at the proceeding must instruct the jury that— they should not draw any inference as to the defendant’s guilt from the order or direction; and the probative value of the evidence is not increased or decreased because of the order or direction; and the evidence is not to be given any greater or lesser weight because of the order or direction. (sec.21A-ssec.9) To remove any doubt, it is declared that the court may make any other order it thinks fit to facilitate an order or direction under subsection (2) (a) (ii) , (c), (d), or (e) made pursuant to an application under subsection (3) . - (a) in the case of a criminal proceeding—that the person charged or other party to the proceeding— (i) be excluded from the room in which the court is sitting while the special witness is giving evidence or is required to appear in court for any other purpose; or (ii) be obscured from the view of the special witness while the special witness is giving evidence or is required to appear in court for any other purpose; - (i) be excluded from the room in which the court is sitting while the special witness is giving evidence or is required to appear in court for any other purpose; or - (ii) be obscured from the view of the special witness while the special witness is giving evidence or is required to appear in court for any other purpose; - (b) that, while the special witness is giving evidence, all persons other than those specified by the court be excluded from the room in which it is sitting; - (c) that the special witness give evidence in a room— (i) other than that in which the court is sitting; and (ii) from which all persons other than those specified by the court are excluded; - (i) other than that in which the court is sitting; and - (ii) from which all persons other than those specified by the court are excluded; - (d) that a person approved by the court be present while the special witness is giving evidence or is required to appear in court for any other purpose in order to provide emotional support to the special witness; - (e) that a videorecording of the evidence of the special witness or any portion of it be made under such conditions as are specified in the order and that the videorecorded evidence be viewed and heard in the proceeding instead of the direct testimony of the special witness; - (f) another order or direction the court considers appropriate about the giving of evidence by the special witness, including, for example, any of the following— (i) a direction about rest breaks for the special witness; (ii) a direction that questions for the special witness be kept simple; (iii) a direction that questions for the special witness be limited by time; (iv) a direction that the number of questions for a special witness on a particular issue be limited. - (i) a direction about rest breaks for the special witness; - (ii) a direction that questions for the special witness be kept simple; - (iii) a direction that questions for the special witness be limited by time; - (iv) a direction that the number of questions for a special witness on a particular issue be limited. - (i) be excluded from the room in which the court is sitting while the special witness is giving evidence or is required to appear in court for any other purpose; or - (ii) be obscured from the view of the special witness while the special witness is giving evidence or is required to appear in court for any other purpose; - (i) other than that in which the court is sitting; and - (ii) from which all persons other than those specified by the court are excluded; - (i) a direction about rest breaks for the special witness; - (ii) a direction that questions for the special witness be kept simple; - (iii) a direction that questions for the special witness be limited by time; - (iv) a direction that the number of questions for a special witness on a particular issue be limited. - (a) the court is satisfied that it would not be in the interests of justice to do so; or - (b) subject to subsection (9) , appropriate equipment and facilities are unavailable to accommodate an order or direction under those paragraphs. - (a) is as admissible as if the evidence were given orally in the proceeding in accordance with the usual rules and practice of the court; and - (b) is, unless the relevant court otherwise orders, admissible in— (i) any rehearing or retrial of, or appeal from, the proceeding; or (ii) in the case of evidence given for a criminal proceeding— (A) another proceeding in the same court for the relevant charge or for another charge arising out of the same, or the same set of, circumstances; or (B) a civil proceeding arising from the commission of the offence. - (i) any rehearing or retrial of, or appeal from, the proceeding; or - (ii) in the case of evidence given for a criminal proceeding— (A) another proceeding in the same court for the relevant charge or for another charge arising out of the same, or the same set of, circumstances; or (B) a civil proceeding arising from the commission of the offence. - (A) another proceeding in the same court for the relevant charge or for another charge arising out of the same, or the same set of, circumstances; or - (B) a civil proceeding arising from the commission of the offence. - (i) any rehearing or retrial of, or appeal from, the proceeding; or - (ii) in the case of evidence given for a criminal proceeding— (A) another proceeding in the same court for the relevant charge or for another charge arising out of the same, or the same set of, circumstances; or (B) a civil proceeding arising from the commission of the offence. - (A) another proceeding in the same court for the relevant charge or for another charge arising out of the same, or the same set of, circumstances; or - (B) a civil proceeding arising from the commission of the offence. - (A) another proceeding in the same court for the relevant charge or for another charge arising out of the same, or the same set of, circumstances; or - (B) a civil proceeding arising from the commission of the offence. - (a) the videorecording is a digital recording; and - (b) the copy of the videorecording on the separate data storage medium has been made by— (i) the principal registrar of a court; or (ii) a person authorised by the principal registrar of a court to copy the videorecording onto the separate data storage medium. - (i) the principal registrar of a court; or - (ii) a person authorised by the principal registrar of a court to copy the videorecording onto the separate data storage medium. - (i) the principal registrar of a court; or - (ii) a person authorised by the principal registrar of a court to copy the videorecording onto the separate data storage medium. - (a) they should not draw any inference as to the defendant’s guilt from the order or direction; and - (b) the probative value of the evidence is not increased or decreased because of the order or direction; and - (c) the evidence is not to be given any greater or lesser weight because of the order or direction.