Evidence Bill 2025
Witness assistance measures Part 7
Pre-recording procedure Division 6
s. 267
page 211
Penalty for this subsection: imprisonment for 2 years or a fine of1
$24 000.2
(4) A person must not play, supply or offer to supply any copy of,3
or reproduction of, any audio of a special hearing, or any part of4
a special hearing, heard by means of an audio link under5
subsection (1).6
Penalty for this subsection: imprisonment for 2 years or a fine of7
$24 000.8
(5) A person must not publish any audio of a special hearing, or any9
part of a special hearing, heard by means of an audio link under10
subsection (1).11
Penalty for this subsection: imprisonment for 2 years or a fine of12
$100 000.13
Compare:14
Evidence Act 1906 s. 106K(3A), (3B), (4A), (4B) and (4C)15
267. Use of recorded statement or interview at special hearing16
This Division does not prevent a recorded statement or recorded17
interview from being presented as the whole or part of a18
witness’s evidence in chief in a special hearing.19
Compare:20
Evidence Act 1906 s. 106K(4)21
268. Admissibility of recording of evidence taken at special22
hearing23
(1) A recording of evidence given by a witness at a special hearing24
is admissible in the proceeding for which it was made, and in25
any related proceeding, to the same extent as if it were given26
orally in the proceeding in accordance with the usual rules and27
practice of the court concerned.28
(2) If a pre-recording order is made on the ground that the witness29
is likely to be out of the State at the time of the proceeding,30
Evidence Bill 2025
Part 7 Witness assistance measures
Division 6 Pre-recording procedure
s. 269
page 212
subsection (1) applies only if the court is satisfied at the1
proceeding that —2
(a) the witness is not available to give evidence; or3
(b) the witness is out of the State and is not able to give4
evidence at the proceeding by means of a video link or5
an audio link, even if the witness might return at some6
future time; or7
(c) the witness is being kept out of the way by a party; or8
(d) all of the parties consent and the interests of justice do9
not require the presence of the witness.10
(3) However, if there is a prospect that a witness referred to in11
subsection (2)(a) might become available to give evidence, the12
court need not admit the evidence but may adjourn the hearing13
of the proceeding.14
Compare:15
Evidence Act 1906 s. 106T16
269. Presentation of recording of evidence17
(1) The court may give directions as to the manner in which a18
recording of evidence given by a witness at a special hearing19
must be presented to the court and the excision of matters from20
it.21
(2) Without limiting subsection (1), the court may give any of the22
following directions —23
(a) a direction that the recording of evidence be played to24
the court;25
(b) a direction that the recording of evidence be tendered to26
the court;27
(c) a direction that a transcript of the recording of evidence28
be tendered to the court.29
(3) A jury in the proceeding may, with the leave of the court, be30
given access to a transcript of a recording of evidence.31
Evidence Bill 2025
Witness assistance measures Part 7
Pre-recording procedure Division 6
s. 270
page 213
270. Presence of witness not required during presentation of1
recording of evidence2
(1) A witness may, but is not required to, be present in the3
courtroom when a recording of evidence given by the witness is4
played to the court.5
(2) Subsection (1) does not prevent the court from directing the6
witness to leave the courtroom while the recording of evidence7
is played if the court considers it appropriate to do so in the8
interests of justice.9
(3) The court may direct that arrangements be made that enable the10
witness to view the proceeding from outside the courtroom11
when the recording of evidence is played, by closed-circuit12
television or otherwise.13
(4) The arrangements that enable the witness to view the14
proceeding from outside the courtroom must ensure that the15
witness is not visible or audible to anyone in the court, other16
than the judge.17
(5) This section does not prevent the court from directing that a18
witness be visible or audible to the courtroom while a recording19
of evidence is played if the witness has reached 18 years of age20
and the court considers it appropriate to do so in the interests of21
justice.22
Compare:23
Evidence Act 1906 s. 106I(1)(b) and 106T(2c)24
271. Witness may be required to give further evidence25
(1) A witness who has given evidence in a special hearing may be26
called to give further evidence in the proceeding, but only with27
the leave of the court.28
Evidence Bill 2025
Part 7 Witness assistance measures
Division 6 Pre-recording procedure
s. 272
page 214
(2) The court may give leave only if satisfied that —1
(a) the further evidence is required —2
(i) to clarify evidence given in the special hearing;3
or4
(ii) because of a matter which the party seeking5
leave could not reasonably have been aware at6
the time of the special hearing;7
and8
(b) it is in the interests of justice to do so.9
(3) The further evidence must be limited to the matters in relation to10
which the leave is granted.11
(4) The further evidence may be given in the absence of the jury (if12
any) if the court considers it appropriate in the interests of13
justice.14
(5) Subsection (1) does not prevent the court from directing the use15
of a pre-recording procedure, video link separation procedure or16
screening procedure in respect of the giving of further evidence.17
Compare:18
Evidence Act 1906 s. 106T(3) and (4)19
272. Identification of accused20
If the evidence of a witness in a criminal proceeding is given in21
a special hearing, and the identification of an accused is in issue,22
the witness cannot be required to be in the presence of the23
accused for that purpose —24
(a) for any longer than is necessary for that purpose; or25
(b) before the evidence of the witness (including26
cross-examination and re-examination) is completed.27
Compare:28
Evidence Act 1906 s. 106Q29
Evidence Bill 2025
Witness assistance measures Part 7
Video link separation and screening procedures Division 7
s. 273
page 215
273. Warning to jury1
A judge in any proceeding before a jury in which the evidence2
of a witness is given using a pre-recording procedure must3
instruct the jury that —4
(a) the procedure is a routine practice of the court; and5
(b) the jury should not draw an inference as to the guilt of6
an accused or the culpability of a party from the use of7
the procedure.8
Division 7 — Video link separation and screening procedures9
274. Application of Division10
(1) This Division applies despite the Criminal Procedure Act 200411
section 88.12
(2) This Division does not affect the power of a court to order the13
use of video link or a screening procedure under any other14
provision of this Act or any other written law.15
275. Terms used16
In this Division —17
excluded party has the meaning given in section 276(1)(b);18
video link separation order has the meaning given in19
section 276(1).20
276. General provisions about video link separation orders21
(1) A video link separation order is an order of a court under22
section 277 or 278 directing that the whole or any part of the23
evidence of a witness in a proceeding be given using a video24
link separation procedure so that —25
(a) in a criminal proceeding — the witness gives the26
evidence in a separate place from an accused; or27
Evidence Bill 2025
Part 7 Witness assistance measures
Division 7 Video link separation and screening procedures
s. 276
page 216
(b) in a civil proceeding — the witness gives the evidence1
in a separate place from any party the court considers2
appropriate to exclude (an excluded party).3
(2) A video link separation order may be made by a court —4
(a) on the application of the party proposing to call the5
witness; or6
(b) on the court’s own initiative.7
(3) A video link separation order may include any directions the8
court making the order thinks fit relating to the video link9
separation procedure, including, but not limited to, directions10
about the following —11
(a) the place at which the evidence of the witness must be12
given, or an accused or an excluded party must remain,13
while the evidence is given;14
(b) the persons who may be present in the same room as the15
witness when the witness’s evidence is given;16
(c) the persons, or classes of persons, who are authorised to17
have possession of the recording of evidence made when18
the witness’s evidence is given.19
(4) A video link separation order must not be inconsistent with the20
requirements for a video link separation procedure specified in21
this Division.22
(5) A video link separation order may be varied or revoked by23
further order of the court made —24
(a) on the application of a party; or25
(b) on the court’s own initiative.26
(6) A party to a proceeding must be served with a copy of an27
application by another party for —28
(a) a video link separation order; or29
(b) an order varying or revoking a video link separation30
order.31
Evidence Bill 2025
Witness assistance measures Part 7
Video link separation and screening procedures Division 7
s. 277
page 217
Compare:1
Evidence Act 1906 s. 106N and 106R(4)2
277. Circumstances in which video link separation procedure is3
mandatory4
(1) A court must make a video link separation order directing that5
the whole of the evidence of a witness be given using a video6
link separation procedure —7
(a) if the proceeding is a criminal proceeding and the8
witness is a child (other than the accused) when the9
proceeding commences; or10
(b) if the proceeding is a child protection proceeding and11
the witness is the affected child; or12
(c) if the witness is a special witness in the proceeding13
(other than the accused); or14
(d) in any other circumstances specified in the regulations15
for the purposes of this paragraph.16
(2) Despite subsection (1), the court may decline to make a video17
link separation order if —18
(a) the court dispenses with the use of a video link19
separation procedure under section 311; or20
(b) the evidence of the witness is given using a21
pre-recording procedure; or22
(c) the court is satisfied that the necessary facilities for a23
video link separation procedure are not available and24
cannot reasonably be made available by the court.25
(3) If a court declines to make a video link separation order under26
subsection (2)(c), the court must —27
(a) instead of making the order, direct that the evidence of28
the witness be given using a screening procedure; and29
(b) consider whether any other arrangements could be made30
to support or assist the witness while giving evidence.31
Evidence Bill 2025
Part 7 Witness assistance measures
Division 7 Video link separation and screening procedures
s. 278
page 218
(4) The court must not decline to make a video link separation order1
under subsection (2)(c) in the circumstances (if any) specified in2
the regulations for the purposes of this subsection.3
(5) A power to specify circumstances under subsection (1)(d) or (4)4
includes a power to specify circumstances by reference to any5
of the following —6
(a) the characteristics of the witness;7
(b) the type of proceeding;8
(c) the location of the proceeding.9
(6) In deciding whether the court is satisfied of the circumstances10
referred to in subsection (1)(d) or (4), the court may inform11
itself as it thinks fit.12
278. Other circumstances in which video link separation13
procedure may be used14
(1) A court may make a video link separation order directing that15
the whole or any part of the evidence of a witness be given16
using a video link separation procedure —17
(a) if the witness is an accused in a criminal proceeding in18
which there is more than 1 accused, and is a child when19
the proceeding commences; or20
(b) if the witness is an accused in a criminal proceeding in21
which there is more than 1 accused, and is a special22
witness; or23
(c) in any other circumstances specified in the regulations24
for the purposes of this paragraph; or25
(d) in any other circumstances that, in the opinion of the26
court, justify the use of a video link separation27
procedure.28
(2) A court must have regard to the interests of justice in deciding29
whether to make a video link separation order in respect of a30
witness under this section.31
Evidence Bill 2025
Witness assistance measures Part 7
Video link separation and screening procedures Division 7
s. 279
page 219
(3) A power to specify circumstances under subsection (1)(c)1
includes a power to specify circumstances by reference to any2
of the following —3
(a) the characteristics of the witness;4
(b) the type of proceeding;5
(c) the location of the proceeding.6
(4) In deciding whether the court is satisfied of the circumstances7
referred to in subsection (1)(c) or (d), the court may inform8
itself as it thinks fit.9
(5) This section does not apply if a court is required to make a10
video link separation order under section 277.11
279. Access to legal counsel12
An accused or an excluded party must at all times have the13
means of communicating with the person’s legal counsel while14
a witness gives evidence using a video link separation15
procedure.16
Compare:17
Evidence Act 1906 s. 106N(3)18
280. Evidence of witness to be recorded19
(1) If a witness gives evidence using a video link separation20
procedure, the evidence must be recorded on a visual recording.21
(2) A recording of evidence given by a witness using a video link22
separation procedure is admissible in the proceeding for which23
the evidence was obtained, and in any related proceeding, to the24
same extent as if it were given orally in the proceeding in25
accordance with the usual rules and practice of the court26
concerned.27
Compare:28
Evidence Act 1906 s. 106N(3a) and 106T(1) and (2)29
Evidence Bill 2025
Part 7 Witness assistance measures
Division 7 Video link separation and screening procedures
s. 281
page 220
281. Use of screening procedure1
(1) If, instead of making a video link separation order, a court2
directs that the evidence of the witness be given using a3
screening procedure, the court must ensure that —4
(a) the screening procedure does not cause significant5
hardship to the witness; and6
(b) the witness is still able to access any person who has7
been approved by the court to provide support to the8
witness while giving evidence; and9
(c) the arrangements for the witness to give evidence are10
otherwise in the interests of justice.11
(2) The witness’s evidence must be recorded on a visual recording12
if the necessary facilities are available to do so.13
(3) A recording of evidence given by a witness while using a14
screening procedure is admissible in the proceeding for which15
the evidence was obtained, and in any related proceeding, to the16
same extent as if it were given orally in the proceeding in17
accordance with the usual rules and practice of the court18
concerned.19
Compare:20
Evidence Act 1906 s. 106N(4) and (5) and 106T(1) and (2)21
282. Identification of accused22
If the evidence of a witness in a criminal proceeding is given23
using a video link separation procedure or a screening procedure24
under this Division, and the identification of an accused is in25
issue, the witness cannot be required to be in the presence of the26
accused for that purpose —27
(a) for any longer than is necessary for that purpose; or28
Evidence Bill 2025
Witness assistance measures Part 7
Video link separation and screening procedures Division 8
s. 283
page 221
(b) before the evidence of the witness (including1
cross-examination and re-examination) is completed.2
Compare:3
Evidence Act 1906 s. 106Q4
283. Instruction to jury5
A judge in any proceeding before a jury in which the evidence6
of a witness is given using a video link separation procedure or7
a screening procedure under this Division must instruct the jury8
that —9
(a) the procedure is a routine practice of the court; and10
(b) the jury should not draw an inference as to the guilt of11
an accused or the culpability of a party from the use of12
the procedure.13
Compare:14
Evidence Act 1906 s. 106P15
Division 8 — Witness intermediaries16
284. Terms used17
In this Division —18
accredited witness intermediary means a person who is19
accredited, in accordance with the regulations, to act as a20
witness intermediary;21
witness intermediary service means the witness intermediary22
service referred to in section 285.23
285. Establishment of witness intermediary service24
(1) There is to be a witness intermediary service.25
(2) The witness intermediary service is comprised of persons who26
are accredited, in accordance with the regulations, to act as27
witness intermediaries.28