Div 5Evidentiary matters

Division 5—Evidentiary matters 28—Burden of proof In proceedings under this Part, the Court is to decide questions of fact on the balance of probabilities. 28A—Use of recorded evidence where application made by police (1) This section applies in addition to, and does not derogate from, any other power of the Court to receive evidence or to determine the form in which evidence may be received (including evidence in the form of a recording). (2) In any proceedings in which a police officer has applied for the making, or variation, of an intervention order— (a) the evidence of a relevant person may be admitted in the form of a recording made by a police officer if the Court is satisfied that the interests of justice require the admission of the evidence; and (b) if evidence of a relevant person is admitted in the form of a recording pursuant to this section, the relevant person cannot be further examined, cross-examined or re-examined on the evidence so admitted without the permission of the Court. (3) Without limiting section 42, 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. (4) In this section— recording means an audio record or an audio visual record; relevant person—a person is a relevant person in proceedings on an application for the making, or variation, of an intervention order if the intervention order is to be, or has been, issued for the protection of the person. 29—Special arrangements for evidence and cross‑examination (1) The Court may order that special arrangements be made for taking the evidence of a person against whom it is alleged the defendant has committed or might commit an act of abuse or a child who it is alleged has been or might be exposed to the effects of an act of abuse committed by the defendant against a person. (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 Court and transmitted to the Court by means of closed circuit television; (b) an order that the evidence be taken outside the Court and that an audio visual record of the evidence be made and replayed in the 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 the 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 for the purpose of providing emotional support; (f) that extra allowance be made for breaks during, and time to be given for, the taking of evidence; (g) 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 under section 14A of the Evidence Act 1929). (3) Special arrangements made under this section may relate to the evidence of the witness as a whole or to particular aspects of the evidence of the witness, such as cross‑examination and re‑examination. (4) Cross‑examination of a person against whom it is alleged the defendant has committed or might commit an act of abuse or a child who it is alleged has been or might be exposed to the effects of an act of abuse committed by the defendant against a person is— (a) to be by counsel; or (b) if the defendant is not legally represented in the proceedings—to be undertaken— (i) by the defendant submitting to the Court, in the manner required by the Court, the questions the defendant proposes the witness be asked in cross‑examination and the Court (or the Court's nominee) asking the witness those of the questions submitted that are determined by the Court to be allowable in cross‑examination; or (ii) as otherwise directed by the Court.