Last updated 12 September 2018
The Evidence Act 1977 (Qld) (Evidence Act) contains provisions designed to provide protection for witnesses at court in certain circumstances. These provisions extend to all victims who are required to give evidence against an alleged offender in criminal proceedings and are supplemented by ss 12 and 13 of the Victims of Crime Assistance Act 2009 (Qld) (VOCA Act) and the Charter of Victims’ Rights. These sections require that a victim who is a witness should be given information about the prosecution of the offender, the trial process and their role as a witness.
The court may disallow a question put to a witness in cross-examination (or inform the witness that a question need not be answered) if the question is considered improper (s 21 Evidence Act). A question may be considered by the court to be improper if it uses inappropriate language or is misleading, confusing, annoying, harassing, intimidating, offensive, oppressive or repetitive.
Whether a question is improper is a matter for the court to decide. In making this decision, the court will take into account the witness’s age, education, level of understanding, cultural background or relationship to any party to the proceeding as well as any mental, intellectual or physical impairment of the witness.
Protection of a special witness in court
Section 21A of the Evidence Act allows a court to decide that a witness is a special witness. A special witness is entitled to have special arrangements to protect them when giving evidence in court.
A witness is considered to be a special witness where they are:
- a child under the age of 16 years
- a person who, in the court’s opinion, if required to give evidence in accordance with the usual rules and practices of the court would:
- as a result of a mental, intellectual or physical impairment, or a relevant matter be likely to be disadvantaged as a witness
- be likely to suffer severe emotional trauma
- be likely to be so intimidated as to be disadvantaged as a witness such as victims of sexual assault, witnesses to organised crime, or victims of domestic and family violence
In cases where a victim of crime is considered a special witness, the following protections may be requested:
- the accused person be excluded from the room (this is rare) or obscured from the view of the witness while the witness is required in court
- all persons other than those specified by the court be excluded from the room while the special witness is giving evidence (closed court)
- a person able to provide emotional support and who is approved by the court to be present while the witness is giving evidence
- a video recording of the evidence be made and viewed instead of direct testimony (although direct cross-examination of the special witness may be required)
- any other order or direction the court considers appropriate, including rest breaks or a direction that questions be kept simple.
Cross-examination by the person charged
Section 21N of the Evidence Act prevents an accused person from personally cross-examining a protected witness.
A protected witness is defined by s 21M(1) of the Evidence Act as:
- a witness under 16 years of age
- a witness who is a person with an impairment of the mind
- an alleged victim of a prescribed special offence
- an alleged victim of a prescribed offence, who the court considers would be likely to be disadvantaged as a witness or to suffer severe emotional trauma unless treated as a protected witness.
Prescribed offences and prescribed special offences tend to be serious offences including assault, burglary, robbery, grievous bodily harm, attempted murder, stalking and sexual offences involving children.
In cases where the accused person does not have legal representation, the court may arrange for free legal assistance by Legal Aid Queensland for the cross-examination (s 21O Evidence Act).
Protection of child witnesses
The general principles to be applied when dealing with an affected child witness are set out in pt 2 div 4A of the Evidence Act:
- A child is to be treated with dignity, respect and compassion.
- Measures should be taken to limit the distress or trauma suffered by a child when giving evidence.
- The child should not be intimidated in cross-examination.
- The proceeding should be resolved as quickly as possible.
A child’s evidence is to be taken at the earliest possible opportunity. At a committal proceeding, a child will ordinarily give evidence only in a statement and will not be cross-examined. The evidence of an affected child is to be pre-recorded wherever possible, in the presence of a judicial officer, prior to trial and played to the jury at the trial. The pre-recorded tape of the child’s evidence is then used at the trial instead of the child appearing as a witness. Trial cross-examination is not limited by the Evidence Act.
If the evidence has not been pre-recorded, it is mandatory that an audio-visual link (if available) be used for the giving of the child’s evidence. As a result, an affected child may give evidence from another location (including another city) separate to where the proceeding is being heard. If an audio-visual link is not available, then a screen must be used so that the affected child witness cannot see the accused person.
Protection of victims of sexual offences
The Criminal Law (Sexual Offences) Act 1978 (Qld) (Sexual Offences Act) contains special rules of evidence concerning sexual offences that serve to protect the complainant while giving evidence. This Act defines a complainant as a person against whom a sexual offence is alleged to have been committed (s 3 Sexual Offences Act).
Reputation of the complainant
Section 4 of the Sexual Offences Act details six rules that apply in relation to any examination of witnesses or trial relating to a sexual offence. In particular, rules 1 and 2 protect complainants from questions and oblige a court to disallow evidence regarding their general reputation relating to chastity and sexual activities with any person, unless that evidence is deemed by the court to have substantial relevance to the case (rule 3). Rule 5 states that evidence establishing that a complainant has engaged in sexual activity with a person or persons is not a proper matter for cross-examination as to credit, unless it materially impairs confidence in the reliability of the complainant’s evidence. The purpose of this rule is to ensure that a complainant is not regarded as less worthy of belief as a witness because they have engaged in sexual activity.
Section 4A of the Sexual Offences Act states that evidence of how and when a preliminary complaint of an alleged offence was made is admissible, regardless of when the preliminary complaint was made.
Exclusion from court
Under s 5 of the Sexual Offences Act, the public and any person not required by the court are excluded from the courtroom when the complainant is giving evidence. People allowed to remain in court during testimony include:
- the complainant’s lawyers (however, it is rare for complainants to be personally represented in criminal trials)
- the defendant and the defendant’s lawyers
- a Crown law officer
- the prosecutor
- a person providing emotional support
- the parent or guardian of a complainant under the age of 17
- any person whose presence the court decides is necessary or desirable for the hearing
- any person who has a proper interest in being present and whose presence would not be prejudicial to the interests of the complainant.
Publication of the complainant’s identity
Section 6 of the Sexual Offences Act states that the complainant’s name, address, school or place of employment, or any other particular likely to lead to identification of the complainant cannot be published unless the court orders otherwise. It is an offence to make a report or publication that could lead to the identification of the complainant without the court’s permission (s 10 Sexual Offences Act).