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2.3.2 – Protected Witnesses

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Change and Continuity

Division 3 of Part 8.2 of the Criminal Procedure Act 2009 contains the "protected witness" provisions from the former Evidence Act 1958 s37CA.

While the provisions have undergone minor drafting amendments, their substance remains unchanged.

Who is a "Protected Witness"?

  1. The "protected witness" provisions of the Criminal Procedure Act 2009 apply to proceedings that relate (wholly or partly) to a charge for:
  2. In such proceedings, the following people are "protected witnesses":

    Cross-Examination of Protected Witnesses

  3. A protected witness must not be personally cross-examined by the accused (Criminal Procedure Act 2009 s356).
  4. Where a protected witness gives evidence, and the accused is not legally represented, the court must inform the jury that the accused is not permitted to personally cross-examine the witness (Criminal Procedure Act 2009 s357(1)(a)).
  5. If an unrepresented accused obtains, or is provided with, legal representation for the purpose of cross-examining a protected witness, the judge must warn the jury:
  6. These directions under sections 357 or 358 do not depend on a party making a request (compare Jury Directions Act 2015 Part 3).
  7. As a matter of prudence, the accused should not be offered representation in the presence of the jury. Such matters should be resolved prior to the commencement of the trial.

    Notes

[1] See Alternative Arrangements for the definition of a "sexual offence" charge.

[2] See Alternative Arrangements for the definition of a "family violence" offence.

[3] See Criminal Procedure Act 2009 s354 for the definition of a "family member" in this context. This definition differs from the definition of "family member" used in relation to the family violence provisions of the Family Violence Protection Act 2008.

Last updated: 29 June 2015

In This Section

2.3.2.1 – Charge: Protected Witnesses

See Also

2.3 – Other Procedures for Taking Evidence

2.3.1 – Alternative Arrangements

2.3.3 – Pre-recorded Evidence

2.3.4 - Witness Support Dog