Queensland Consolidated Acts

EVIDENCE ACT 1977 - SECT 21A

21A Evidence of special witnesses

(1) In this section—

"criminal organisation" see the Penalties and Sentences Act 1992 , section 161O .

"domestic violence" see the Domestic and Family Violence Protection Act 2012 , section 8 .

"participant" , in a criminal organisation, see the Penalties and Sentences Act 1992 , section 161P .

"party" includes a person who is present in court and is a member, a representative (other than a legal representative) or a nominee of an organisation that is a party to the proceeding.

"relevant matter" , for a person, means the person’s age, education, level of understanding, cultural background or relationship to any party to the proceeding, the nature of the subject matter of the evidence, or another matter the court considers relevant.

"serious criminal offence" means—

(a) an indictable offence punishable by at least 7 years imprisonment, including an offence against a repealed provision of an Act; or

(b) a prescribed offence as defined under the Penalties and Sentences Act 1992 , section 161N , other than an offence mentioned in paragraph (a) , charged with a circumstance of aggravation stated in section 161Q of that Act.

"sexual offence" means an offence of a sexual nature, including, for example—

(a) an offence against a provision of the Criminal Code , chapter 32 ; and

(b) an offence against a provision of the Criminal Code , chapter 22 .

"special witness" means—

(a) a child under 16 years; or

(b) a person who, in the court’s opinion—

(i) would, as a result of a mental, intellectual or physical impairment or a relevant matter, be likely to be disadvantaged as a witness; or

(ii) would be likely to suffer severe emotional trauma; or

(iii) would be likely to be so intimidated as to be disadvantaged as a witness;

if required to give evidence in accordance with the usual rules and practice of the court; or

(c) a person who is to give evidence about the commission of a serious criminal offence committed by a criminal organisation or a participant in a criminal organisation; or

(d) a person—

(i) against whom domestic violence has been or is alleged to have been committed by another person; and

(ii) who is to give evidence about the commission of an offence by the other person; or

(e) a person—

(i) against whom a sexual offence has been, or is alleged to have been, committed by another person; and

(ii) who is to give evidence about the commission of an offence by the other person.

(1A) This section does not apply to a child to the extent division 4A applies to the child.

(1B) A party to a proceeding or, in a criminal proceeding, the person charged may be a special witness.

(2) Where a special witness is to give or is giving evidence in any proceeding, 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—

(a) 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 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;

(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;

(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.

(4) Subject to any order made pursuant to subsection (5) , in any criminal 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.

(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.

(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.

(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.

(6) A videorecording made under this section of evidence given by a special witness, or a lawfully edited copy of the videorecording—

(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.

(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—

(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.

(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.

(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—

(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.