Evidence Act 1929

Subject to this section, if—

it is desirable to make special arrangements for taking evidence from a witness in a trial in order to protect the witness from embarrassment or distress, to protect the witness from being intimidated by the atmosphere of the courtroom or for any other proper reason; and

the facilities necessary for the special arrangements are readily available to the court and it is otherwise practicable to make the special arrangements; and

the special arrangements can be made without prejudice to any party to the proceedings, the court should, on its own initiative, order that special arrangements be made for taking the evidence of the witness.

Without limiting the kind of order that may be made under this section, the court may make 1 or more of the following orders:

an order that the evidence be given outside the trial court and transmitted to the trial court by means of closed circuit television;

an order that the evidence be taken outside the trial court, and that an audio visual record of the evidence be made and replayed in the trial court;

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;

an order that a 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;

an order that the witness be accompanied by a relative or friend, or by a canine court companion, for the purpose of providing emotional support;

if the witness has a physical disability or cognitive impairment—an order 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.

The court may, if of the opinion that expert evidence would assist the court to determine the special arrangements that should be made for taking the evidence of the witness, receive such evidence and, if the native language of the witness is not English and the witness is not reasonably fluent in English, evidence about any additional difficulty that may be caused by the witness giving evidence through an interpreter.

Special arrangements made under this section may relate to the witness's evidence as a whole or to particular aspects of the witness's evidence, such as cross‑examination and re‑examination.

An order must not be made under this section if the effect of the order would be—

to relieve a witness from the obligation to give sworn evidence; or

to relieve a witness from the obligation to submit to cross‑examination;

to prevent the judge, jury or defendant from observing the witness's demeanour in giving evidence (but the observation may be direct or by live transmission of the witness's voice and image or by replay of a recording of the witness's voice and image); or

to prevent the defendant from instructing counsel while the witness is giving evidence.

If a witness is accompanied by a relative or friend for the purpose of providing emotional support, that person must be visible to the judge and jury (if any) while the witness is giving evidence and, if, in consequence of an order under this section, a party is prevented from seeing that person directly while the witness gives evidence, the court must ensure that the party is able to observe that person either—

by direct transmission of images of the witness together with that person while the witness is giving evidence; or

by the later replay of a recording of images of the witness together with that person made while the witness was giving evidence.

If a witness is accompanied by a canine court companion for the purpose of providing emotional support, the following provisions apply:

the witness may also be accompanied by a person who will act as a handler for the dog and subsection (6) applies to the handler as if they were an accompanying person providing emotional support to the witness;

in a criminal trial—

if the witness is accompanied by the dog while giving evidence before a jury—if practicable, the dog should not be visible to the jury while the witness is giving the evidence; and

if practicable, the dog should not be visible in any audio visual record of the evidence.

If, in a criminal trial, a court makes special arrangements for taking the evidence of a witness, the judge must warn the jury not to draw from that fact any inference adverse to the defendant, and not to allow the special arrangements to influence the weight to be given to the evidence.

An order under this section may be made, varied or revoked on the court's own initiative, or on the application of a party or witness.