Vulnerable victims & witnesses

Special arrangements may be made for witnesses giving evidence. In particular, the laws of evidence provide for the way in which evidence is taken from vulnerable witnesses, including children and victims of serious offences, the way witnesses may be questioned and the manner in which judges warn or direct juries about the evidence of children. It also restricts access to sensitive material that is to be used as evidence in proceedings.

The law does not permit an order for special arrangements to be made if this would relieve a witness from the obligation to give sworn evidence or to submit to cross-examination, or to prevent a judge or jury from seeing or hearing the witness while giving evidence. The law does however, state that such sight or hearing of a witness giving evidence may be indirect - for example, by live television transmission or replay of a recording of the witness's voice and image - so long as the indirect method of transmission also shows any person who may be accompanying the witness to provide the witness with emotional support. It states further that a special arrangement must not be made if it would prevent a defendant from seeing or hearing the witness while giving evidence.

An example of a special arrangement is the taking of an electronic recording of a witness's evidence outside the courtroom to be replayed in the courtroom. Another example is allowing disabled witnesses to give evidence by unconventional means if that would facilitate the taking of that evidence or minimise the witness's embarrassment or distress.

Vulnerable witnesses

Special provisions are made for certain witnesses, often called vulnerable witnesses. If you are under the age of 16 years, suffer from an intellectual disability, the victim of a sexual offence and other serious offences (such as abduction, blackmail, stalking, unlawful threats to kill or endanger life, causing serious harm, and attempted murder or attempted manslaughter), or a person at a special disadvantage:

      • you may not be cross-examined in person by an unrepresented defendant in criminal or civil proceedings
      • a criminal court may take an audio visual record of your evidence and, must do so, if you are a child of 16 years or less and have not already had that evidence pre-recorded
      • a criminal or civil court may admit an official audio visual or written record of your evidence given in an earlier criminal proceeding and relieve you of the obligation to give oral evidence in the current proceedings.

The court may also make one or more orders that:

      • your evidence be given outside the trial court and transmitted to the trial court by means of closed circuit television
      • your evidence be taken outside the trial court
      • an audio visual record of your evidence be made and replayed in the trial court
      • 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
      • the defendant be excluded from the place where evidence is taken, or otherwise be prevented from directly seeing and hearing you while giving evidence
      • you be accompanied by a relative or friend for the purpose of providing emotional support, or a court companion.

The court may also order that the court be closed to the public.

You can ask the witness assistance officer or the prosecutor about the special arrangements and provisions for vulnerable witnesses. The prosecutor can apply on your behalf, for an order but it is up to the judge or magistrate what order, if any, is made.

Even if you are not in any of these categories, you can ask to use these measures, but it is up to the court to decide.