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
(ab) [Section 3 Amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] [Section 3 Amended by No. 63 of 2013, s. 4, Applied:01 Mar 2014] who is giving, or is to give, evidence in respect of family violence, within the meaning of the Family Violence Act 2004 , or a crime under section 158 or 159 of the Criminal Code; or
(b) upon or in respect of whom any of the following crimes is alleged to have been committed:
(i) [Section 3 Amended by No. 69 of 2003, Sched. 1, Applied:15 Dec 2003] [Section 3 Amended by No. 44 of 2004, s. 28, Applied:16 Nov 2004] [Section 3 Amended by No. 43 of 2006, s. 19, Applied:18 Dec 2006] [Section 3 Amended by No. 63 of 2013, s. 4, Applied:01 Mar 2014] a crime under section 122 , 124 , 125 , 125A , 125B , 125C , 125D , 126 , 127 , 127A , 128 , 129 , 130 , 133 , 137 , 170, 172, 178, 178A, 183, 185, 186, 191A or 240 of the Criminal Code or a crime under section 9 of the Sex Industry Offences Act 2005 ;
(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
(ba) [Section 3 Amended by No. 63 of 2013, s. 4, Applied:01 Mar 2014] who has witnessed a crime referred to in paragraph (b)(i) or a crime under section 158 or 159 of the Criminal Code; or
(c) [Section 3 Amended by No. 44 of 2004, s. 28, Applied:16 Nov 2004] [Section 3 Amended by No. 43 of 2006, s. 19, Applied:18 Dec 2006] upon or in respect of whom an offence under section 8(1A)(a) or 35(3) of the Police Offences Act 1935 is alleged to have been committed; or
(d) [Section 3 Amended by No. 43 of 2006, s. 19, Applied:18 Dec 2006] upon or in respect of whom an offence under section 73 of the Classification (Publications, Films and Computer Games) Enforcement Act 1995 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;
[Section 3 Amended by No. 63 of 2013, s. 4, Applied:01 Mar 2014] child means a person who is under the age of 18 years;
[Section 3 Amended by No. 63 of 2013, s. 4, Applied:01 Mar 2014] Crown Law Officer means the Attorney-General or Solicitor-General, or any person appointed by the Governor to institute or prosecute criminal proceedings in the Supreme Court;
defendant means –
(a) in respect of an application under section 42 of the Children, Young Persons and Their Families Act 1997 , the respondent; or
(ab) [Section 3 Amended by No. 26 of 2018, s. 6, Applied:10 Dec 2018] in respect of an application to a court under Part 3 of the Family Violence Act 2004 to vary, extend or revoke a police family violence order, the person to whom the relevant police family violence order is issued; or
(ac) [Section 3 Amended by No. 26 of 2018, s. 6, Applied:10 Dec 2018] in respect of an application to a court under Part 4 of the Family Violence Act 2004 for a family violence order, an interim family violence order or a variation, extension or revocation of a family violence order, the person against whom the family violence order is made or is sought to be made; or
(ad) [Section 3 Amended by No. 26 of 2018, s. 6, Applied:10 Dec 2018] in respect of an order, admitting a person to bail, varying or adding a condition of an order for bail or revoking an order for bail, under the Bail Act 1994 , Criminal Code Act 1924 or Justices Act 1959 , made in relation to a proceeding in which a person has been charged with a family violence offence, the person in respect of whom the order is made; or
(b) in respect of any other prescribed proceeding, a person charged with the crime or offence;
[Section 3 Amended by No. 26 of 2018, s. 6, Applied:10 Dec 2018] family violence offence has the same meaning as in the Family Violence Act 2004 ;
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
(ab) [Section 3 Amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] [Section 3 Amended by No. 26 of 2018, s. 6, Applied:10 Dec 2018] a proceeding in which a person has been charged with a family violence offence; or
(ac) [Section 3 Amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] an application to a court under Part 3 or 4 of the Family Violence Act 2004 ; or
(ad) [Section 3 Amended by No. 26 of 2018, s. 6, Applied:10 Dec 2018] an application in respect of an order, admitting a person to bail, varying or adding a condition of an order for bail or revoking an order for bail, under the Bail Act 1994 , Criminal Code Act 1924 or Justices Act 1959 , in which the person in respect of whom the order is made has been charged with a family violence offence; or
(b) [Section 3 Amended by No. 69 of 2003, Sched. 1, Applied:15 Dec 2003] [Section 3 Amended by No. 44 of 2004, s. 28, Applied:16 Nov 2004] [Section 3 Amended by No. 43 of 2006, s. 19, Applied:18 Dec 2006] [Section 3 Amended by No. 63 of 2013, s. 4, Applied:01 Mar 2014] a proceeding in which a person has been charged with a crime under section 122 , 124 , 125 , 125A , 125B , 125C , 125D , 126 , 127 , 127A , 128 , 129 , 130 , 133 , 137 , 158, 159, 170, 172, 178, 178A, 183, 185, 186, 191A or 240 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) [Section 3 Amended by No. 44 of 2004, s. 28, Applied:16 Nov 2004] [Section 3 Amended by No. 42 of 2005, s. 26, Applied:01 Jan 2006] a proceeding in which a person has been charged with an offence under section 8(1A)(a) or 35(3) of the Police Offences Act 1935 ; or;
(e) [Section 3 Amended by No. 42 of 2005, s. 26, Applied:01 Jan 2006] [Section 3 Amended by No. 43 of 2006, s. 19, Applied:18 Dec 2006] a proceeding in which a person has been charged with a crime under section 4 , 7 or 9 of the Sex Industry Offences Act 2005 or an offence under section 8(2) of that Act; or
(f) [Section 3 Amended by No. 43 of 2006, s. 19, Applied:18 Dec 2006] a proceeding in which a person has been charged with an offence under section 73 of the Classification (Publications, Films and Computer Games) Enforcement Act 1995 ;
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 1A - Principles in Relation to Child Witnesses

3A.   Principles in relation to child witnesses

[Section 3A Inserted by No. 63 of 2013, s. 5, Applied:01 Mar 2014]
(1)  It is the intention of Parliament that, as children tend to be vulnerable in dealings with persons in authority, child witnesses be given the benefit of special measures.
(2)  The following principles apply where a child is a witness in any proceeding:
(a) measures are to be taken to limit, to the greatest extent practicable, the distress or trauma suffered (or likely to be suffered) by the child when giving evidence;
(b) the child is to be treated with dignity, respect and compassion;
(c) the child should not be intimidated when giving evidence;
(d) prescribed proceedings in which a child is a witness are to be resolved as quickly as possible.
PART 2 - Evidence of children and special witnesses

4.   Support person for child

(1)  [Section 4 Subsection (1) amended by No. 16 of 2006, s. 19, Applied:01 Nov 2006] In giving evidence in any 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)  [Section 5 Subsection (1) amended by No. 63 of 2013, s. 6, Applied:01 Mar 2014] In a prescribed proceeding, including a special hearing ordered under section 6A , 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)  [Section 5 Subsection (2) amended by No. 22 of 2007, s. 28, Applied:01 Feb 2008] Subsection (1) does not affect the operation of section 61 of the Justices Act 1959 .

6.   Application for order for special hearing

[Section 6 Substituted by No. 63 of 2013, s. 7, Applied:01 Mar 2014]
(1)  In a prescribed proceeding, the prosecutor may apply to a judge for an order directing –
(a) that the whole of an affected child’s evidence (including cross-examination and re-examination) be –
(i) taken at a special hearing and audio visually recorded; and
(ii) presented to the court in the form of that audio visual recording; and
(b) that the affected child not be present at the trial.
(2)  The defendant is to be served with a copy of, and is entitled to be heard on, an application under subsection (1) .

6A.   Special hearing to take and record child’s evidence in full

[Section 6A Inserted by No. 63 of 2013, s. 7, Applied:01 Mar 2014] A judge who hears an application under section 6(1)(a) , or on his or her own motion, may make such orders as the judge thinks fit, including ordering a special hearing to take and record a child's evidence in full.

6B.   Evidence of affected child by audio visual link

[Section 6B Inserted by No. 63 of 2013, s. 7, Applied:01 Mar 2014]
(1)  Except where an order under section 7 is in force, the evidence of an affected child in a prescribed proceeding, including evidence given at a special hearing, 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)  [Section 7 Subsection (1) amended by No. 63 of 2013, s. 8, Applied:01 Mar 2014] In a prescribed proceeding, the prosecutor may apply to a judge of the court hearing the proceeding for an order that section 6B does not apply to the proceeding.
(2)  [Section 7 Subsection (2) amended by No. 63 of 2013, s. 8, Applied:01 Mar 2014] On receipt of an application, the judge may make an order declaring that section 6B 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) .

7A.   Audio visual record of evidence given at trial

[Section 7A Inserted by No. 63 of 2013, s. 9, Applied:01 Mar 2014]
(1)  If an affected child or a special witness is to give evidence at trial in any prescribed proceeding, and facilities are available for making an audio visual record of the evidence, an audio visual record is to be made of the affected child's or special witness's evidence.
(2)  An audio visual record is to be made under this section whether or not the affected child or special witness is giving evidence by audio visual link.
(3)  An audio visual record made under this section forms part of the records of the court.

7B.   Audio visual record may be admitted into evidence

[Section 7B Inserted by No. 63 of 2013, s. 9, Applied:01 Mar 2014]
(1)  If, in a later civil or criminal proceeding, a judge is satisfied that evidence of which an audio visual record has been made under this Part is relevant to the later proceeding, the judge may admit the audio visual record into evidence.
(2)  Before the judge admits such an audio visual record into evidence, the judge may have the record edited to exclude irrelevant material or material that is otherwise inadmissible in the later proceeding.
(3)  If a judge admits an audio visual record into evidence under this section, the judge may relieve the witness wholly or in part from an obligation to give evidence in the later proceeding.

7C.   Unauthorised possession or dealing in video-taped evidence

[Section 7C Inserted by No. 63 of 2013, s. 9, Applied:01 Mar 2014]
(1)  A person must not, without authority –
(a) have an audio visual recording of evidence in his or her possession; or
(b) supply, or offer to supply, an audio visual recording of evidence to any person.

Penalty:  Fine not exceeding 50 penalty units.

(2)  A person must not, without authority, play, copy or erase, or permit a person to copy or erase, an audio visual recording of evidence.

Penalty:  Fine not exceeding 50 penalty units.

(3)  A person has authority for the purposes of subsection (1) or (2) only if he or she has possession of an audio visual recording of evidence or does anything mentioned in subsection (1) or  (2) , as the case may be –
(a) in the case of a public official, for a purpose connected with –
(i) the proceeding for which the recording was made; or
(ii) any proceeding where the audio visual recording has been admitted into evidence pursuant to section 7B ; or
(iii) any resulting proceeding by way of appeal; or
(b) in any other case, as authorised by a Crown Law Officer for a purpose connected with –
(i) the proceeding for which the recording was made; or
(ii) any proceeding where the audio visual recording has been admitted into evidence pursuant to section 7B ; or
(iii) any proceeding resulting by way of appeal.
PART 3 - [Part 3 Heading inserted by No. 63 of 2013, s. 10, Applied:01 Mar 2014] Declaration of Special Witness

8.   Special witness

(1)  [Section 8 Subsection (1) amended by No. 16 of 2006, s. 20, Applied:01 Nov 2006] A judge may make an order declaring that a person who is giving, or is to give, evidence in a 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)  [Section 8 Subsection (2) amended by No. 6 of 2017, s. 6, Applied:28 Apr 2017] An order made under subsection (1) 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;
(iia) [Section 8 Subsection (2) amended by No. 63 of 2013, s. 11, Applied:01 Mar 2014] an order admitting into evidence a prior statement of the special witness as if the special witness were an affected child in respect of whom section 5 applies;
(iib) [Section 8 Subsection (2) amended by No. 63 of 2013, s. 11, Applied:01 Mar 2014] an order that a special hearing be held to take and record evidence as if the special witness were an affected child in respect of whom section 6 applies;
(iic) [Section 8 Subsection (2) amended by No. 63 of 2013, s. 11, Applied:01 Mar 2014] if an order is made under subparagraph (iib) , an order that the special witness not be present at the trial;
(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.
(2A)  [Section 8 Subsection (2A) inserted by No. 6 of 2017, s. 6, Applied:28 Apr 2017] If a person, who is an alleged victim of a family violence offence, is giving or is to give evidence in a proceeding in which a person has been charged with a family violence offence, a judge –
(a) must consider whether or not he or she should make an order under paragraph (b) ; and
(b) may make an order declaring that the person, who is the alleged victim of the family violence offence, is a special witness.
(2B)  [Section 8 Subsection (2B) inserted by No. 6 of 2017, s. 6, Applied:28 Apr 2017] An order made under subsection (2A) may include any one or more of the orders referred to in subsection (2)(b) .
(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)  [Section 8 Subsection (4) amended by No. 6 of 2017, s. 6, Applied:28 Apr 2017] A judge may revoke or vary an order made under this section.
(5)  [Section 8 Subsection (5) amended by No. 6 of 2017, s. 6, Applied:28 Apr 2017] A judge is not to make an order under this section 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.
(7)  [Section 8 Subsection (7) inserted by No. 6 of 2017, s. 6, Applied:28 Apr 2017] [Section 8 Subsection (7) omitted by No. 26 of 2018, s. 7, Applied:10 Dec 2018] .  .  .  .  .  .  .  .  
PART 4 - Cross-examination of Victims of Certain Offences and Applications

8A.   Cross-examination of victims of certain offences and applications

[Section 8A Inserted by No. 63 of 2013, s. 12, Applied:01 Mar 2014]
(1)  In any prescribed proceeding for an offence, a defendant is not to be permitted to cross-examine a witness who is the alleged victim of the offence unless the cross-examination is undertaken by counsel.
(1A)  [Section 8A Subsection (1A) inserted by No. 26 of 2018, s. 9, Applied:10 Dec 2018] In an application referred to in paragraph (ac) or (ad) of the definition of prescribed proceeding in section 3 , a defendant referred to in paragraph (ab) , (ac) or (ad) of the definition of defendant in section 3 is not to be permitted to cross-examine a person who is the alleged victim of any family violence offence to which the application relates unless the cross-examination is undertaken by counsel.
(2)  [Section 8A Subsection (2) amended by No. 26 of 2018, s. 9, Applied:10 Dec 2018] If a defendant is not legally represented in a prescribed proceeding that will involve the taking of evidence from a witness who is referred to in subsection (1) , or a person who is referred to in subsection (1A) , the judge must ensure that the defendant –
(a) has been warned of the limitation on the right of cross-examination imposed by this section; and
(b) has been informed that he or she may be entitled to legal assistance under the Legal Aid Commission Act 1990 ; and
(c) has had a reasonable opportunity to obtain the assistance of counsel before the evidence is taken.
(3)  If it appears to be in the interests of justice that a person should have legal aid in connection with this Part and that the person has insufficient means to enable him or her to obtain that aid, the judge may make an order directing that the person be given assistance under the approved scheme for the time being in force under the Legal Aid Commission Act 1990 .
(4)  If, in a prescribed proceeding, an unrepresented defendant obtains the assistance of counsel for the purpose of cross-examining such a witness, the judge must –
(a) explain to the jury the limitation imposed by this section on the defendant's right to personally cross-examine the witness; and
(b) warn the jury that no adverse inference may be drawn against the defendant from the requirement for the unrepresented defendant to obtain the assistance of counsel to cross-examine the witness.
PART 5 - [Part 5 Heading inserted by No. 63 of 2013, s. 13, Applied:01 Mar 2014] Miscellaneous

9.   Preliminary hearing

(1)  [Section 9 Subsection (1) amended by No. 63 of 2013, s. 14, Applied:01 Mar 2014] 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 6A or 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.

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.