Evidence Bill 2025
Part 7 Witness assistance measures
Division 5 Admission of recorded interviews
s. 252
page 200
(b) any criminal proceeding, if the court is satisfied that the1
person interviewed —2
(i) was a child at the time of the interview; or3
(ii) is a person with a mental impairment who,4
because of that mental impairment, is a special5
witness in the proceeding.6
(2) The court must not admit the recorded interview under this7
Division unless —8
(a) the court is satisfied that —9
(i) the person who conducted the interview in the10
recorded interview was qualified to conduct the11
interview under the interview admissibility12
regulations; and13
(ii) the recorded interview meets any other14
requirements of the interview admissibility15
regulations to the extent required by those16
regulations;17
and18
(b) the accused is given an opportunity to cross-examine the19
person interviewed.20
(3) A recorded interview with a person is admissible under this21
Division —22
(a) whether or not the interview was conducted with the23
consent of a parent or guardian of the person; and24
(b) irrespective of the age or maturity of the person at the25
time of the proceeding; and26
(c) even if the person is capable of giving evidence at the27
proceeding; and28
(d) even if conducted before the proceeding commenced.29
Evidence Bill 2025
Witness assistance measures Part 7
Admission of recorded interviews Division 5
s. 253
page 201
(4) This section does not affect the operation of section 57.1
Compare:2
Evidence Act 1906 s. 106HA and 106HB3
253. Regulations may specify admissibility requirements for4
interviews5
(1) Regulations made for the purposes of this section (the interview6
admissibility regulations) may specify requirements relating to7
the admission of recorded interviews under this Division,8
including, without limitation, the following —9
(a) the class of persons who are qualified to conduct the10
interview that is recorded;11
(b) the manner in which the interview must be conducted;12
(c) the manner in which the interview must be recorded;13
(d) the information that must be recorded;14
(e) requirements relating to apparent level of understanding15
or cognitive functioning of the person being16
interviewed;17
(f) the extent to which any specified requirements must be18
met.19
(2) The interview admissibility regulations may specify the class of20
persons who are qualified to conduct an interview by reference21
to the office or position held by the person, by reference to22
training or experience, or by a combination of those criteria.23
(3) The requirements specified by the interview admissibility24
regulations may be different for different classes of person25
interviewed.26
Compare:27
Evidence Act 1906 s. 106HC28
Evidence Bill 2025
Part 7 Witness assistance measures
Division 5 Admission of recorded interviews
s. 254
page 202
254. Interview must be provided to accused1
(1) A court must not admit a recorded interview under this Division2
unless —3
(a) a transcript of the interview has been given to the4
accused and the accused’s legal counsel; and5
(b) a copy of the recorded interview has been given to the6
accused’s legal counsel; and7
(c) if the accused is not represented by legal counsel, the8
accused has been given a reasonable opportunity, in9
accordance with the regulations, to view the recorded10
interview.11
(2) Subsection (1)(b) and (c) refer to a copy of the original version12
of the recorded interview that has not been altered, even if an13
altered version is to be played to the court.14
(3) The accused is not entitled to be in possession of, or of a copy15
of —16
(a) a recorded interview; or17
(b) any visual recording or audio recording of evidence that18
incorporates a recorded interview.19
Compare:20
Evidence Act 1906 s. 106HB(2) and (3)21
255. Application of rules of evidence22
(1) The hearsay rule does not prevent the admission or use of23
evidence of a representation made by a person in a recorded24
interview to prove the existence of an asserted fact.25
(2) The opinion rule does not prevent the admission or use of26
evidence of an opinion expressed by a person in a recorded27
interview to prove the existence of a fact about the existence of28
which the opinion was expressed.29
Evidence Bill 2025
Witness assistance measures Part 7
Admission of recorded interviews Division 5
s. 256
page 203
(3) The rule that leading questions must not be put to a witness in1
examination in chief provided for in section 46 does not prevent2
a court from allowing any part of a recorded interview to be3
admitted as the evidence in chief of a person if the court is4
satisfied that the manner in which the interview was conducted5
complies with the interview admissibility regulations to the6
extent required by those regulations.7
Compare:8
Evidence Act 1906 s. 106HB(4)9
256. Presentation of recorded interview10
(1) A court may give directions as to the manner in which a11
recorded interview must be presented to the court and the12
excision of matters from it.13
(2) Without limiting subsection (1), the court may give any of the14
following directions —15
(a) a direction that the recorded interview be played to the16
court;17
(b) a direction that the recorded interview be tendered to the18
court;19
(c) a direction that a transcript of the recorded interview be20
tendered to the court.21
(3) A jury in the proceeding may, with the leave of the court, be22
given access to a transcript of a recorded interview.23
Compare:24
Evidence Act 1906 s. 106HB(5)(a)25
257. Further evidence26
If a recorded interview is admitted as all or part of the evidence27
in chief of a person, the court may give directions as to —28
(a) the manner in which further evidence in chief of the29
person may be given at the proceeding; and30
Evidence Bill 2025
Part 7 Witness assistance measures
Division 5 Admission of recorded interviews
s. 258
page 204
(b) the manner in which any cross-examination or1
re-examination of the person must be conducted at the2
proceeding.3
Compare:4
Evidence Act 1906 s. 106HB(5)(b)5
258. Presence of person interviewed not required during6
presentation of interview7
(1) A person interviewed in a recorded interview may, but is not8
required to, be present in the courtroom when the recorded9
interview is played to the court.10
(2) The court may direct that arrangements be made that enable the11
person to view the proceeding from outside the courtroom when12
the recorded interview is played, by closed-circuit television or13
otherwise.14
(3) The arrangements that enable the person to view the proceeding15
from outside the courtroom must ensure that the person is not16
visible or audible to anyone in the court, other than the judge.17
(4) Subsection (1) does not prevent the court from directing the18
person to leave the courtroom while the recorded interview is19
played if the court considers it appropriate to do so in the20
interests of justice.21
Compare:22
Evidence Act 1906 s. 106HB(6a)23
259. Warning and comments to jury24
(1) A judge in any proceeding before a jury in which a recorded25
interview is admitted under this Division as the whole or part of26
the evidence in chief of a person must instruct the jury that —27
(a) the procedure is a routine practice of the court; and28
(b) the jury should not draw an inference as to the guilt of29
the accused from the use of the procedure.30
Evidence Bill 2025
Witness assistance measures Part 7
Admission of recorded interviews Division 5
s. 260
page 205
(2) In a proceeding before a jury, the judge, the accused or the1
accused’s legal counsel must not comment to the jury about a2
failure by the prosecutor to adduce a recorded interview with a3
person as the evidence in chief of the person under this4
Division.5
(3) Subsection (2) does not prevent a judge from directing the jury6
about a contravention of that subsection by the accused or the7
accused’s legal counsel if it is in the interests of justice to do so.8
Compare:9
Evidence Act 1906 s. 106HB(7)10
260. Other regulations11
The regulations may make further provision for recorded12
interviews that are admissible under this Division or made for13
use as evidence under this Division, including, without14
limitation, for or with respect to the following —15
(a) the alteration, playing, custody, possession, storage,16
copying, transcription or destruction of recorded17
interviews;18
(b) the records that are to be kept about a recorded19
interview;20
(c) access to a recorded interview by the prosecutor for the21
purposes of any proceeding in which the recorded22
interview may be admitted as evidence in chief of a23
person;24
(d) access to and use of a recorded interview for the25
purposes of any proceeding in the Children’s Court or26
the Family Court (whether or not it has been admitted in27
evidence under this Division);28
(e) access to and use of a recorded interview otherwise than29
for the purposes of a proceeding in which the interview30
may be admitted under this Division or as referred to in31
paragraph (d);32
Evidence Bill 2025
Part 7 Witness assistance measures
Division 6 Pre-recording procedure
s. 261
page 206
(f) the manner in which compliance with any of the1
requirements for admissibility under this Division may2
be proved in a proceeding.3
Compare:4
Evidence Act 1906 s. 106HC5
Division 6 — Pre-recording procedure6
261. Terms used7
In this Division —8
pre-recording order has the meaning given in section 262(1);9
special hearing means a special hearing held for the purposes of10
a pre-recording procedure.11
262. General provisions about pre-recording orders12
(1) A pre-recording order is an order of a court under section 26313
directing that the whole or any part of the evidence of a witness14
in a proceeding be given using a pre-recording procedure.15
(2) A pre-recording order may be made by a court —16
(a) on the application of the party proposing to call the17
witness; or18
(b) on the court’s own initiative.19
(3) A pre-recording order may include any directions the court20
making the order thinks fit relating to the pre-recording21
procedure, including, but not limited to, the following —22
(a) the conduct of the special hearing at which the evidence23
of the witness is to be given;24
(b) arrangements for examination of the witness, including25
the presentation and incorporation of any recorded26
statement or recorded interview of the witness at the27
special hearing;28
(c) arrangements for cross-examination or re-examination29
of the witness;30
Evidence Bill 2025
Witness assistance measures Part 7
Pre-recording procedure Division 6
s. 263
page 207
(d) the place at which the special hearing is to be held1
(whether in the courtroom or a separate room);2
(e) the persons who may be present in the same room as the3
witness when the witness’s evidence is given;4
(f) arrangements for an accused or a party to observe or5
listen to the special hearing.6
(4) A pre-recording order must not be inconsistent with the7
requirements for a pre-recording procedure specified in this8
Division.9
(5) A pre-recording order may be varied or revoked by further order10
of the court made —11
(a) on the application of a party; or12
(b) on the court’s own initiative.13
(6) A party to a proceeding must be served with a copy of an14
application by another party for —15
(a) a pre-recording order; or16
(b) the variation or revocation of a pre-recording order.17
Compare:18
Evidence Act 1906 s. 106I, 106K and 106RA19
263. Circumstances in which pre-recording order may be made20
(1) A court may make a pre-recording order directing that the21
whole or any part of the evidence of a witness be given using a22
pre-recording procedure —23
(a) if the witness is a child when the proceeding24
commences; or25
(b) if the witness —26
(i) is the complainant in a criminal proceeding for a27
sexual offence; and28
Evidence Bill 2025
Part 7 Witness assistance measures
Division 6 Pre-recording procedure
s. 263
page 208
(ii) was a child at the time of the offence (regardless1
of the witness’s age at the time of the2
proceeding);3
or4
(c) if the witness is a special witness in a criminal5
proceeding; or6
(d) if the court is satisfied that the witness is likely to be out7
of the State at the time of the proceeding and will not be8
able to give evidence at the proceeding by means of a9
video link or an audio link; or10
(e) in any circumstances specified in the regulations for the11
purposes of this paragraph; or12
(f) in any other circumstances that, in the opinion of the13
court, justify the use of a pre-recording procedure.14
(2) A court must have regard to the interests of justice in deciding15
whether to make a pre-recording order in respect of a witness16
under this section, including —17
(a) the needs of the witness; and18
(b) the length of time until a trial is likely to be held.19
(3) A power to specify circumstances under subsection (1)(e)20
includes a power to specify circumstances by reference to any21
of the following —22
(a) the characteristics of the witness;23
(b) the type of proceeding;24
(c) the location of the proceeding.25
(4) In deciding whether the court is satisfied of the circumstances26
referred to in subsection (1)(e) or (f), the court may inform itself27
as it thinks fit.28
Compare:29
Evidence Act 1906 s. 106I and 106RA30
Evidence Bill 2025
Witness assistance measures Part 7
Pre-recording procedure Division 6
s. 264
page 209
264. Conduct of special hearing1
(1) A witness may give evidence at a special hearing in accordance2
with a pre-recording order, subject to the control of the3
presiding judge.4
(2) The usual rules of evidence apply to the special hearing, except5
as otherwise provided by this Division.6
(3) More than 1 special hearing may be held for the purposes of7
obtaining the evidence of the witness and, in that case, this8
Division applies in relation to each special hearing with any9
necessary modifications.10
Compare:11
Evidence Act 1906 s. 106K(3) and (5)12
265. Restrictions on persons who may be present at special13
hearing14
(1) A person (including an accused) must not be in the same room15
as a witness when the witness’s evidence is given at a special16
hearing unless the person is the presiding judge or a person17
authorised by a pre-recording order.18
(2) In a criminal proceeding or child protection proceeding, an19
accused must not be in, and cannot be authorised by a20
pre-recording order to be in, the same room as a witness when21
the witness’s evidence is given at a special hearing —22
(a) if the witness is a child when the proceeding23
commences; or24
(b) if the witness —25
(i) is the complainant in a criminal proceeding for a26
sexual offence; and27
(ii) was a child at the time of the offence (regardless28
of the witness’s age at the time of the29
proceeding);30
or31
Evidence Bill 2025
Part 7 Witness assistance measures
Division 6 Pre-recording procedure
s. 266
page 210
(c) if the witness is a special witness; or1
(d) in any other circumstances specified in the regulations2
for the purposes of this paragraph.3
(3) However, the accused must —4
(a) be able to observe the special hearing by means of a5
video link or, if section 266 applies, to listen to the6
special hearing by means of an audio link; and7
(b) at all times have the means of communicating with the8
accused’s legal counsel or, if the accused is not9
represented, with the court.10
(4) This section applies despite the Criminal Procedure Act 200411
section 88.12
(5) If an accused gives evidence at a special hearing under a13
pre-recording order, a reference in subsections (1) to (3) to the14
accused is a reference to any other accused in the proceeding.15
Compare:16
Evidence Act 1906 s. 106K(3)17
266. Alternative arrangements for attendance at special hearing18
(1) A court may direct that an accused or party listen to a special19
hearing by means of an audio link if, in the opinion of the court,20
it is not desirable for the accused or party to attend court due to21
the person’s health or another reason.22
(2) If the court directs that the accused or party listen to a special23
hearing by means of an audio link, the accused or party must be24
provided with a reasonable opportunity to view a copy of the25
visual recording of evidence from the special hearing before the26
evidence is presented to court.27
(3) A person must not make a copy of, or otherwise reproduce, any28
audio of a special hearing, or any part of a special hearing,29
heard by means of an audio link under subsection (1).30