Special court arrangements for vulnerable witnesses

Giving evidence can be especially traumatic for vulnerable witnesses, including children and victims of sexual assault and other crimes of personal violence.

To reduce this extra stress and trauma as much as possible, special arrangements can be made in court. The ODPP prosecutor or your WAS officer will talk to you about what arrangements are available to you.

Just remember, the court has to agree to them being made.

Recorded evidence: The courts accept a recording of a child’s police interview as their evidence-in-chief if the child was under 16 years old at the time of their first interview. The child will still have to attend court, as the defence has the right to cross-examine them.

Giving evidence from another room: All victims of sexual assault have the right to give evidence from another room via CCTV / AVL, rather than being in the same room as the accused.Photo of an AVL room

If you give evidence this way, you will be able to see, hear and speak to the magistrate or judge and the prosecutor or the defence lawyer. You should not be able to see the accused – if you can, you or your support person should let the magistrate or judge know. Everyone in the courtroom will be able to see and hear you.

Screens: If CCTV / AVL facilities are not available and you do give evidence from the courtroom, a screen can be placed in front of the accused person while you are in the witness stand, so you don’t see them and they don’t see you.

Closed courts: The court can be closed to members of the public who are not directly involved in the case while you give evidence and are cross-examined.

Non-publication orders: Your name and any other details that identify you cannot, by law, be published or broadcast in the media.

Support person: You are entitled to have at least one support person with you when you give your evidence, whether you give it in the courtroom or the CCTV / AVL room. If it is in the courtroom, the judge or magistrate will decide where your support person sits. This will usually be near you or where you can see them.

Pre-recorded evidence: If there is an aborted trial, a hung jury or a re-trial, you may not have to give evidence again. What is called the ‘best copy’ of the evidence you have already given can be used instead. This could, for example, be the court transcript or an audio / video recording.

Since April 2016, extra measures have been available in child sexual assault matters before the District Court in Sydney (the Downing Centre) and in Newcastle to reduce the time children need to be involved in the court process and to help them communicate to the police and to the court.

Pre-recordings: Under a pilot program, greater use is made of recordings so children do not have to attend trials. As with all child sexual assault matters, the child’s police interview is recorded and can be used as their evidence-in-chief. If the accused pleads 'not guilty', the judge will hold a hearing, which will also be recorded. The child will be cross-examined by the defence lawyer and re-examined, if necessary, by the ODPP. If the matter does go to trial, the recordings will be used instead of the child having to appear in person. While any court process is stressful, the advantage of the hearing is that it is over early, whereas a trial will usually not be held for many months, often for more than a year. Also, the judge can make the hearing as informal as possible as there is no jury.

Communication: The pilot program also provides ‘witness intermediaries’ to help make sure children’s evidence is heard and understood. An intermediary assesses a child’s communication abilities before their police interview. Then during the interview, and later in court, the intermediary helps explain to the child the questions being asked in a way they will understand and, if necessary, to explain the child’s answers to those questions. The intermediaries are speech pathologists, occupational therapists, psychologists and social workers who have been given specialist training in child sexual assault matters.

Support person: If you are under 18 you can have at least one support person with you, whether you give your evidence in the courtroom or the CCTV / AVL room. If it is in the courtroom, the judge or magistrate will decide where the support person sits. This will usually be near you, or somewhere where you can see them.

Closed courts: The court can be closed to members of the public who are not directly involved in the case while you give evidence and are cross-examined.

If you find it difficult to understand or speak English, let the ODPP prosecutor or the police officer handling the case know as soon as possible so they can arrange for an interpreter when you give your evidence.

If you have a disability or will require extra support to give your evidence, let the ODPP prosecutor, your WAS officer or the police officer handling the case know as early as possible.