Evidence (Miscellaneous Provisions) Act 1991

This Act is the Evidence (Miscellaneous Provisions) Act 1991.

The court may order that the court be closed to the public while all or part of the witness’s evidence (including evidence under cross‑examination) is given.

Note The accused is entitled to a fair and public hearing, but the court may exclude the press and public in certain circumstances (see Human Rights Act 2004, s 21 (2)).

In deciding whether to order that the court be closed to the public, the court must consider whether—

the witness wants to give evidence in open court; and

it is in the interests of justice that the witness give evidence in open court.

However, an order under this section does not stop the following people from being in court when the witness gives evidence:

a person nominated by the witness;

a person who attends the proceeding to prepare a news report of the proceeding and is authorised to attend for that purpose by the person’s employer.

Note Publishing certain information in relation to sexual offence proceedings is an offence (see s 74).

In this section, a reference to a person giving evidence includes the person giving evidence by the playing of an audiovisual recording of the evidence at a hearing under division 4.3.3 (Special requirements—audiovisual recording of police interview) or division 4.3.4 (Giving evidence at pre-trial hearing).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

external place, for a proceeding, means a place other than the courtroom where the proceeding is heard.

family member, for part 4.2 (What special requirements apply to particular proceedings)—see the Family Violence Act 2016, section 9.

family violence offence, for chapter 4 (Sexual, violent and family violence offence proceedings)—see the Family Violence Act 2016, dictionary.

family violence offence proceeding, for chapter 4 (Sexual, violent and family violence offence proceedings)––see section 38.

give evidence, in a proceeding by audiovisual link—

for part 2.2 (Evidence of children—audiovisual links)—see section 6; and

for division 4.3.5 (Giving evidence by audiovisual link)—see section 67.

ground rules hearing, for chapter 1A (Ground rules hearings—criminal proceedings)—see section 4AA.

harm, for division 4.4.3 (Sexual and family violence offence proceedings—protection of counselling communications)––see section 79.

intellectually impaired, for part 4.2 (What special requirements apply to particular proceedings)—see section 42.

intermediaries administrator, for chapter 1B (Witness intermediaries—criminal proceedings)—see section 4AG.

intermediary, for a witness in a criminal proceeding—see section 4AG.

less serious violent offence proceeding, for chapter 4 (Sexual, violent and family violence offence proceedings)––see section 39.

Magistrates Court, for part 2.2 (Evidence of children—audiovisual links)—see section 5.

participating State, for chapter 3 (Use of audiovisual links and audio links)––see section 16.

preliminary criminal proceeding, for division 4.4.3 (Sexual and family violence offence proceedings—protection of counselling communications)––see section 79.

principal proceeding, for chapter 6A (Victim impact statements)—see section 95.

proceeding—

for this Act generally—see the Legislation Act, dictionary, part 1; and

for part 2.2 (Evidence of children—audiovisual links)—see section 5; and

for part 4.1 (Kinds of proceedings)—see section 37; and

for division 4.4.3 (Sexual and family violence offence proceedings—protection of counselling communications)––see section 79.

protected confidence, for division 4.4.3 (Sexual and family violence offence proceedings—protection of counselling communications)––see section 79A.

protected confidence evidence, for division 4.4.3 (Sexual and family violence offence proceedings—protection of counselling communications)––see section 79.

recognised court, for chapter 3 (Use of audiovisual links and audio links)––see section 16.

recorded statement, for part 4.5 (Special requirements—evidence in family violence offence proceedings)—see section 81.

relevant proceeding, for part 4.3 (Special requirements—general)—see section 46.

serious violent offence proceeding, for chapter 4 (Sexual, violent and family violence offence proceedings)––see section 40.

sexual offence proceeding, for chapter 4 (Sexual, violent and family violence offence proceedings)––see section 41.

similar act witness, for part 4.2 (What special requirements apply to particular proceedings)—see section 42.

special relationship witness, for part 4.2 (What special requirements apply to particular proceedings)—see section 42.

State, for chapter 3 (Use of audiovisual links and audio links)––see section 16.

territory court, for chapter 3 (Use of audiovisual links and audio links)—see section 16.

tribunal, in relation to a State, for chapter 3 (Use of audiovisual links and audio links)––see section 16.

victim impact statement, for chapter 6A (Victim impact statements)—see the Crimes (Sentencing) Act 2005, section 47.

vulnerable adult, for part 4.2 (What special requirements apply to particular proceedings)—see section 42.

witness—

for chapter 1A (Ground rules hearings—criminal proceedings)—see section 4AA; and

for chapter 1B (Witness intermediaries—criminal proceedings)—see section 4AG; and

for part 4.3 (Special requirements—general)—see section 46.

witness with disability, for part 4.2 (What special requirements apply to particular proceedings)—see section 42.

In this chapter:

ground rules hearing means a hearing for a witness in a criminal proceeding, where the court—

considers the communication, support or other needs of the witness; and

decides how the proceeding must be conducted to fairly and effectively meet those needs.

witness, in a criminal proceeding, includes the accused person in the proceeding.

A court may, at any time, if satisfied that it is in the interests of justice, direct that a ground rules hearing be held for a witness in a criminal proceeding.

However, if an intermediary is appointed for a witness in a criminal proceeding, the court must direct that a ground rules hearing be held for the witness.

The court may make a direction—

on its own initiative; or

on the application of—

the DPP; or

the witness; or

the accused person.

An application may be made orally or in writing.

If a court directs that a ground rules hearing be held for a witness in a criminal proceeding, the ground rules hearing must be held before the witness gives evidence in the proceeding.

The court may extend the time for holding a ground rules hearing if the court considers that it is in the interests of justice to do so.

The following people must attend a ground rules hearing for a witness in a criminal proceeding:

the DPP;

the lawyer representing the accused person or, if the accused person is not represented by a lawyer in the proceeding, the accused person;

any intermediary appointed for the witness.

The witness is not required to attend a ground rules hearing.

If an intermediary is appointed for the witness, the court may make an order that the witness not attend a ground rules hearing.

If an intermediary is appointed for a witness before a ground rules hearing is held for the witness, the intermediary must—

prepare a written report about the communication needs of the witness; and

give the report to the court before the ground rules hearing.

At a ground rules hearing for a witness in a criminal proceeding, the court may make any direction the court considers is in the interests of justice, including any of the following:

a direction about how a witness may be questioned;

a direction about how long a witness may be questioned;

a direction about the questions that may or may not be asked of a witness;

if there is more than 1 accused—a direction about the allocation among the accused of the topics about which a witness may be asked;

a direction about the use of models, plans, body maps or other aids to help communicate a question or an answer;

a direction about the use of a support animal by the witness;

a direction that if a party intends to give evidence that contradicts or challenges the evidence of a witness or that otherwise discredits a witness, the party is not obliged to put that evidence in its entirety to the witness in cross-examination.

If an intermediary’s report has been given to the court under section 4AE, the court must consider the matters mentioned in the report in making the direction.

Chapter 1B Witness intermediaries—criminal proceedings

In this Act:

intermediary means a person—

on the intermediaries panel; or

on a panel (however described) with functions substantially corresponding to the functions of the intermediaries panel, in the Commonwealth, a State, the United Kingdom or New Zealand.

Note State includes the Northern Territory (see Legislation Act, dict, pt 1).

In this chapter:

intermediaries administrator means the person prescribed by regulation as the intermediaries administrator.

witness, in a criminal proceeding, includes the defendant in the proceeding.

The intermediaries administrator must establish and maintain a panel of people (the intermediaries panel) who have—

either—

a tertiary qualification in psychology, social work, speech pathology or occupational therapy; or

other qualifications, training, experience or skills prescribed by regulation; or

qualifications, training, experience or skills suitable to exercise the functions mentioned in section 4AI.