Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actsinsert
Chapter 1A Ground rules hearings—criminal proceedings
4AA Definitions—ch 1A
In this chapter:
"ground rules hearing" means a hearing for a witness in a criminal proceeding, where the court—
(a) considers the communication, support or other needs of the witness; and
(b) decides how the proceeding must be conducted to fairly and effectively meet those needs.
"witness", in a criminal proceeding, includes the accused person in the proceeding.
4AB Direction to hold ground rules hearing
(1) A court may, at any time, if satisfied that it is in the interests of justice, direct that a ground rules hearing be held for a witness in a criminal proceeding.
(2) However, if an intermediary is appointed for a witness in a criminal proceeding, the court must direct that a ground rules hearing be held for the witness.
(3) The court may make a direction—
(a) on its own initiative; or
(b) on the application of—
(i) the DPP; or
(ii) the witness; or
(iii) the accused person.
(4) An application may be made orally or in writing.
4AC Ground rules hearings—time limits
(1) If a court directs that a ground rules hearing be held for a witness in a criminal proceeding, the ground rules hearing must be held before the witness gives evidence in the proceeding.
(2) The court may extend the time for holding a ground rules hearing if the court considers that it is in the interests of justice to do so.
4AD Ground rules hearings—who must attend
(1) The following people must attend a ground rules hearing for a witness in a criminal proceeding:
(a) the DPP;
(b) the lawyer representing the accused person or, if the accused person is not represented by a lawyer in the proceeding, the accused person;
(c) any intermediary appointed for the witness.
(2) The witness is not required to attend a ground rules hearing.
(3) If an intermediary is appointed for the witness, the court may make an order that the witness not attend a ground rules hearing.
4AE Ground rules hearings—intermediary's report
If an intermediary is appointed for a witness before a ground rules hearing is held for the witness, the intermediary must—
(a) prepare a written report about the communication needs of the witness; and
(b) give the report to the court before the ground rules hearing.
4AF Ground rules hearings—directions
(1) At a ground rules hearing for a witness in a criminal proceeding, the court may make any direction the court considers is in the interests of justice, including any of the following:
(a) a direction about how a witness may be questioned;
(b) a direction about how long a witness may be questioned;
(c) a direction about the questions that may or may not be asked of a witness;
(d) if there is more than 1 accused—a direction about the allocation among the accused of the topics about which a witness may be asked;
(e) a direction about the use of models, plans, body maps or other aids to help communicate a question or an answer;
(f) a direction about the use of a support animal by the witness;
(g) a direction that if a party intends to give evidence that contradicts or challenges the evidence of a witness or that otherwise discredits a witness, the party is not obliged to put that evidence in its entirety to the witness in cross-examination.
(2) If an intermediary's report has been given to the court under section 4AE, the court must consider the matters mentioned in the report in making the direction.
Chapter 1B Witness intermediaries—criminal proceedings
4AG Definitions
(1) In this Act:
"intermediary" means a person—
(a) on the intermediaries panel; or
(b) on a panel (however described) with functions substantially corresponding to the functions of the intermediaries panel, in the Commonwealth, a State, the United Kingdom or New Zealand.
Note State includes the Northern Territory (see Legislation Act
, dict, pt 1).
(2) In this chapter:
"intermediaries administrator" means the person prescribed by regulation as the intermediaries administrator.
"witness", in a criminal proceeding, includes the defendant in the proceeding.
4AH Panel of witness intermediaries
The intermediaries administrator must establish and maintain a panel of people (the "intermediaries panel") who have—
(a) either—
(i) a tertiary qualification in psychology, social work, speech pathology or occupational therapy; or
(ii) other qualifications, training, experience or skills prescribed by regulation; or
(b) qualifications, training, experience or skills suitable to exercise the functions mentioned in section 4AI.
4AI Functions of witness intermediaries
(1) The functions of an intermediary appointed for a witness are to—
(a) prepare and provide reports about the witness's communication needs as required; and
(b) at a hearing—
(i) communicate to the witness questions put to the witness, to the extent necessary for the witness to understand the questions; and
(ii) communicate to the person putting questions to the witness, the witness's answers to the questions, to the extent necessary for the person to understand the answers; and
(iii) otherwise assist the court, and any lawyer appearing in the proceeding, to communicate with the witness.
(2) An intermediary appointed for a witness is an officer of the court and must act impartially when assisting communication with the witness.
4AJ Appointment of witness intermediary—generally
(1) A court may appoint an intermediary in a criminal proceeding for a witness with a communication difficulty—
(a) on its own initiative; or
(b) on the application of—
(i) the DPP; or
(ii) the witness; or
(iii) the accused person.
Example—communication difficulty
a mental or physical disability that impedes speech
(2) A court must not appoint an intermediary for a witness under this section if satisfied that the witness—
(a) is aware of their right to make an application for an intermediary to be appointed; and
(b) is able to, and wishes to, give evidence without the assistance of an intermediary.
(3) In making a decision under this section, the court is not bound by the rules of evidence and may inform itself as it considers appropriate.
4AK Appointment of witness intermediary—prescribed witnesses
(1) A court must appoint an intermediary in a criminal proceeding for a witness prescribed by regulation.
(2) However, the court need not appoint an intermediary for a witness under this section if—
(a) there is no-one available who—
(i) meets the needs of the witness; and
(ii) satisfies the requirements in section 4AL; or
(b) it is not in the interests of justice to appoint an intermediary.
(3) Also, the court must not appoint an intermediary for a witness under this section if satisfied that the witness—
(a) is aware of their right to an intermediary; and
(b) is able to, and wishes to, give evidence without the assistance of an intermediary.
(4) In making a decision under subsection (2) or (3), the court is not bound by the rules of evidence and may inform itself as it considers appropriate.
4AL Appointment of witness intermediary—suitability of the intermediary for the witness etc
(1) A court may appoint an intermediary for a witness in a criminal proceeding only if—
(a) the intermediaries administrator is satisfied the intermediary has qualifications, training, experience or skills suitable for the witness; and
(b) if the intermediary is a designated person—the court is satisfied—
(i) there is no other suitable intermediary reasonably available; and
(ii) the appointment is in the interests of justice.
(2) In making a decision under subsection (1), the court is not bound by the rules of evidence and may inform itself as it considers appropriate.
(3) In this section:
"designated person", in relation to a criminal proceeding, means a person who is—
(a) a relative, friend or acquaintance of the witness or the accused person; or
(b) a person who has assisted the witness (other than as an intermediary) or the accused person in a professional capacity; or
(c) a party or potential witness in the proceeding.
4AM Witness to give evidence in presence of intermediary
(1) If a court appoints an intermediary for a witness in a criminal proceeding, the witness must give their evidence in the presence of the intermediary.
(2) Evidence of a witness given in the presence of an intermediary must be given in circumstances in which—
(a) the court and any lawyer appearing in the proceeding are able to—
(i) see and hear the witness giving evidence; and
(ii) communicate with the intermediary; and
(b) the jury (if any) is able to see and hear the witness giving evidence, including any assistance given by the intermediary.
Note A person must take an oath or make an affirmation before acting as an intermediary in a proceeding (see Evidence Act 2011
, s 22).
(3) If the proceeding is a trial by jury, the court must tell the jury that—
(a) a witness giving evidence in the presence of an intermediary is a usual practice; and
(b) the jury must not draw any inference against the accused person, or give the evidence more or less weight, because the intermediary is present.
(4) An order that the court be closed to the public does not stop an intermediary for a witness being in court while the witness gives evidence.
4AN Relationship to other provisions of this Act
This part does not affect the operation of any other provision in this Act.