Australian Capital Territory Consolidated Acts

EVIDENCE (MISCELLANEOUS PROVISIONS) ACT 1991 - SECT 39

    (1)     This section applies to the complainant or a similar act witness (the "witness") giving evidence in—

        (a)     a sexual offence proceeding; or

        (b)     a violent offence proceeding in relation to a serious violent offence; or

        (c)     a violent offence proceeding in relation to a less serious violent offence if—

              (i)     the witness is a relevant person in relation to the accused person; or

              (ii)     the court considers that the witness has a vulnerability that affects the witness's ability to give evidence because of the circumstances of the proceeding or the witness's circumstances.

Examples—par (c) (ii)

1     the witness is likely to suffer severe emotional trauma because of the nature of the alleged offence

2     the witness is intimidated or distressed because of the witness's relationship to the accused person

Note     An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

    (2)     For subsection (1) (c) (ii), the court is not bound by the rules of evidence and may inform itself as it considers appropriate.

    (3)     The court may order that the court be closed to the public while all or part of the witness's evidence (including evidence given under cross-examination) is given.

Note     The accused is entitled to a fair and public hearing, but the court may exclude the press and public in certain circumstances (see Human Rights Act 2004 , s 21 (2)).

        (a)     the witness wants to give evidence in open court; and

        (b)     it is in the interests of justice that the witness give evidence in open court.

    (5)     However, an order under this section does not stop the following people from being in court when the witness gives evidence:

        (a)     a person nominated by the witness;

        (b)     a person who attends the proceeding to prepare a news report of the proceeding and is authorised to attend for that purpose by the person's employer.

Note     Publishing certain information in relation to sexual offence proceedings is an offence (see s 40).

    (6)     In this section, a reference to a person giving evidence includes the person giving evidence by the playing of an audiovisual recording of the evidence at a hearing under division 4.2A (Sexual and violent offence proceedings—audiovisual recording of police interview admissible as evidence), division 4.2B (Sexual offence proceedings—giving evidence at pre-trial hearing) or by the person giving evidence by audiovisual link under division 4.3 (Sexual and violent offence proceedings—giving evidence by audiovisual link).