Evidence (Children and Special Witnesses) Act 2001


Tasmanian Crest
Evidence (Children and Special Witnesses) Act 2001

An Act to provide for the taking of evidence from children and special witnesses

[Royal Assent 17 December 2001]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Evidence (Children and Special Witnesses) Act 2001 .

2.   Commencement

This Act commences on a day to be proclaimed.

3.   Interpretation

In this Act –
affected child means a child –
(a) in respect of whom an application under section 42 of the Children, Young Persons and Their Families Act 1997 is made; or
(b) upon or in respect of whom any of the following crimes is alleged to have been committed:
(i) a crime under section 122 , 124 , 125 , 125A , 126 , 127 , 127A , 128 , 129 , 133 , 185 or 186 of the Criminal Code;
(ii) a crime under section 298 , 299 or 300 of the Criminal Code in relation to a crime specified in a section referred to in subparagraph (i) ; or
(c) upon or in respect of whom an offence under section 35(3) of the Police Offences Act 1935 is alleged to have been committed;
audio visual link means facilities (including closed-circuit television) that enable audio and visual communication between persons at different places;
child means a person who is under the age of 17 years;
defendant means –
(a) in respect of an application under section 42 of the Children, Young Persons and Their Families Act 1997 , the respondent; or
(b) in respect of any other prescribed proceeding, a person charged with the crime or offence;
judge means –
(a) a judge of the Supreme Court; and
(b) a magistrate; and
(c) any justice sitting in court;
prescribed proceeding means –
(a) an application under section 42 of the Children, Young Persons and Their Families Act 1997 ; or
(b) a proceeding in which a person has been charged with a crime under section 122 , 124 , 125 , 125A , 126 , 127 , 127A , 128 , 129 , 133 , 185 or 186 of the Criminal Code; or
(c) a proceeding in which a person has been charged with a crime under section 298 , 299 or 300 of the Criminal Code in relation to a crime specified in a section referred to in paragraph (b) ; or
(d) a proceeding in which a person has been charged with an offence under section 35(3) of the Police Offences Act 1935 ;
prosecutor, in relation to an application under section 42 of the Children, Young Persons and Their Families Act 1997 , means the applicant;
special witness is a person declared to be a special witness under section 8 ;
trial includes the hearing of an application under section 42 of the Children, Young Persons and Their Families Act 1997 .
PART 2 - Evidence of children and special witnesses

4.   Support person for child

(1)  In giving evidence in any prescribed proceeding, a child is entitled to have near him or her a person approved by the judge who may provide the child with support.
(2)  A judge may only approve a person for the purpose if that person is not, or is not likely to be, a witness in or a party to the proceeding.

5.   Admission of prior statement of affected child

(1)  In a prescribed proceeding, the judge may admit into evidence a statement made by an affected child and recorded by any means if –
(a) the statement relates to a matter in issue in the proceeding; and
(b) the defendant has been given a copy of the record of the statement; and
(c) the defendant is given the opportunity to cross-examine the affected child.
(2)  Subsection (1) does not affect the operation of section 56A(6AA) or 57A of the Justices Act 1959 .

6.   Evidence of affected child by audio visual link

(1)  Except where an order under section 7 is in force, the evidence of an affected child in a prescribed proceeding is to be given by audio visual link.
(2)  While an affected child is giving evidence by audio visual link, only the following persons may be present in the room with the child:
(a) a person approved under section 4 ;
(b) one person employed at the court in which the proceedings are being conducted.

7.   Affected child may give oral evidence in court

(1)  In a prescribed proceeding, the prosecutor may apply to a judge of the court hearing the proceeding for an order that section 6 does not apply to the proceeding.
(2)  On receipt of an application, the judge may make an order declaring that section 6 does not apply to the proceeding if satisfied that the affected child is able and wishes to give evidence in the presence of the defendant in the courtroom.
(3)  A judge of the court hearing a prescribed proceeding may, on the application of the prosecutor or on his or her own motion, vary or revoke an order made under subsection (2) .

8.   Special witness

(1)  A judge may make an order declaring that a person who is giving, or is to give, evidence in a prescribed proceeding is a special witness if satisfied that –
(a) by reason of intellectual, mental or physical disability, the person is, or is likely to be, unable to give evidence satisfactorily in the ordinary manner; or
(b) by reason of age, cultural background, relationship to any party to the proceeding, the nature of the subject matter of the evidence or any other factor the court considers relevant, the person is likely –
(i) to suffer severe emotional trauma; or
(ii) to be so intimidated or distressed as to be unable to give evidence or to give evidence satisfactorily.
(2)  The order may –
(a) be made on the application of a party to the proceeding or the prosecutor or on the motion of the judge; and
(b) include any one or more of the following orders:
(i) an order that the special witness have near him or her a person approved by the judge who may provide him or her with support;
(ii) an order that the evidence of the special witness be given by audio visual link;
(iii) an order that, while the special witness is giving evidence, all persons other than those specified in the order be excluded from the courtroom.
(3)  The judge may only approve a person for the purpose of subsection (2)(b)(i) if that person is not, or is not likely to be, a witness in or a party to the proceeding.
(4)  A judge may revoke or vary the order.
(5)  A judge is not to make an order under subsection (1) in respect of an affected child.
(6)  While a special witness is giving evidence by audio visual link, only the following persons may be present in the room with the special witness:
(a) a person approved by the judge for the purpose of subsection (2)(b)(i) ;
(b) one person employed at the court in which the proceedings are being conducted.

9.   Preliminary hearing

(1)  In any prescribed proceeding in which a matter affecting a person as a witness is likely to require the giving of an approval under section 4 or the making of an order under section 8 , the prosecutor or the party who is to call that person as a witness is to apply for a preliminary hearing to deal with those matters before the hearing of the proceeding is commenced.
(2)  A preliminary hearing in relation to a prescribed proceeding may be provided for by the rules of the court in which that proceeding is being brought.
PART 3 - Miscellaneous

10.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.
(2)  Regulations may be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations.
(3)  The regulations may –
(a) provide that a contravention of, or a failure to comply with, any of the regulations is an offence; and
(b) in respect of such an offence, provide for the imposition of a fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 20 penalty units for each day during which the offence continues.
(4)  The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act.

11.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  –
(a) the administration of this Act is assigned to the Minister for Justice and Industrial Relations; and
(b) the department responsible to the Minister for Justice and Industrial Relations in relation to the administration of this Act is the Department of Justice and Industrial Relations.

[Second reading presentation speech made in:

House of Assembly on 3 OCTOBER 2001

Legislative Council on 6 NOVEMBER 2001]