Western Australian Consolidated Acts Western Australian Consolidated Acts (1) A judge of a court
may make an order —
(a)
declaring that a person who is giving, or is to give, evidence in any
proceeding in that court is a special witness;
(b)
directing that one or more of the arrangements referred to in
subsection (4) are to be made for the giving of that evidence; and
(c)
providing for any incidental or related matter.
(2) An order may be
made under subsection (1) on application by a party to a proceeding, on
notice to the other parties, or of the court’s own motion.
(3) The grounds on
which an order may be made are that if the person is not treated as a special
witness he or she would, in the court’s opinion —
(a) by
reason of physical disability or mental impairment, be unlikely to be able to
give evidence, or to give evidence satisfactorily; or
(b) be
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,
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 that the court
considers relevant.
(3a) Despite
subsection (3), in any proceeding for a serious sexual offence an order
must be made under subsection (1) in respect of the person upon or in
respect of whom it is alleged that the offence was committed, attempted or
proposed unless the court is satisfied —
(a) that
subsection (3) does not apply to the person; and
(b) that
the person does not wish to be declared to be a special witness.
(4) The arrangements
that may be made under this section are —
(a) that
the person have near to him or her a person, approved by the court, who may
provide him or her with support;
(b) that
the person have a communicator while he or she is giving evidence;
(c) in
any proceeding for an offence, that an arrangement of the kind described in
section 106N(2) or (4) is to be made.
(4a) Where an
arrangement under subsection (4)(c) is directed to be made,
section 106N applies, with any necessary changes, as if the special
witness were an affected child.
(4b) Where an
arrangement under subsection (4)(b) is directed to be made,
section 106F applies, with any necessary changes, as if the special
witness were an affected child.
(5) The court may at
any time vary or revoke an order in force under this section.
(6) This section does
not apply to an affected child.
(7) Where in any
proceeding on indictment a person is declared to be a special witness, the
judge is to instruct the jury that the making of the declaration is a routine
practice of the court and that they should not draw any inference as to the
accused’s guilt from it.
(8) If in any
proceeding before a jury for a serious sexual offence a person referred to in
subsection (3a) does not wish to be declared to be a special witness or
declines any arrangement that may be made under
subsection (4) —
(a) the
person must not be questioned in the proceeding about the fact; and
(b)
neither the judge, the prosecutor, the accused nor the accused’s counsel
must comment on the fact to the jury.
(9)
Subsection (8) does not prevent a judge from directing a jury about a
breach of subsection (8) by the prosecutor, the accused or the
accused’s counsel, if it is in the interests of justice to do so.
[Section 106R inserted by No. 36 of 1992
s. 8; amended by No. 53 of 1992 s. 41; No. 69 of 1996
s. 30; No. 71 of 2000 s. 26; No. 46 of 2004 s. 14(3),
(4) and 26; No. 84 of 2004 s. 41 and 82; No. 2 of 2008 s. 53.]