Chapter 6, Pt 5, Div 1 of the CPA applies to proceedings in respect of a prescribed sexual offence, including committal proceedings and where a person is charged with either the prescribed sexual offence alone or together with any other offences: s 290. “Prescribed sexual offence” is defined in s 3(1) and includes the specific offences outlined in s 290A.

Different provisions will apply depending on whether the witness is a child complainant, a child witness, an adult complainant, an adult tendency evidence witness, or an adult witness with a cognitive impairment.

Chapter 6, Pt 5, Div 3 and 4 of the CPA apply to new trials of sexual offence proceedings following the hearing of the original trial.

Division 3 applies where a new trial is ordered following a successful appeal of conviction from the original trial (a “retrial”).

Division 4 applies where a new trial is listed after the original proceedings were discontinued or the jurors could not reach a verdict (a “subsequent trial”).

The special measures apply to complainants or “special witnesses”: a sexual offence witness, a witness who is cognitively impaired, or a witness who is under 18: s 306A for Div 3; s 306H for Div 4. A record of the complainant or witness’s evidence from the original proceedings (evidence in chief, cross-examination and re-examination) is called “original evidence”: s 306B(2); s 306I(2).

An accused who is a “vulnerable person” because they are aged under 18 or are cognitively impaired (s 306M(1)) is entitled to some limited protective measures in Ch 6, Pt 6.

If required by the regulations, police interviews with a vulnerable person are to be recorded (s 306Q) and a vulnerable person may give evidence of previous representations made to police via this recording (s 306R, s 306S(1)(a)).

A “government agency witness” includes police witnesses who give corroborative evidence of the evidence in chief of other police witnesses, and staff of the NSW Health Service who have provided an expert report or are called to give expert opinion evidence in the proceedings: s 5BAA(5) of the Evidence (Audio and Audio Visual Links) Act 1998. Such witnesses must give their evidence via audio-visual link from any location in NSW, provided the necessary links are available: s 5BAA(1), (2). The court can direct otherwise if satisfied the evidence is likely to be contentious and it is in the interests of the administration of justice to appear in person in court: s 5BAA(3), (4).

For criminal proceedings in the NSW Supreme Court, Practice Note No SC Gen 15 requires parties to advise the court at least 10 working days before the hearing date whether government agency witnesses will be giving evidence via AVL.

Part IAD of the Crimes Act 1914 (Cth) provides protective measures for vulnerable witnesses in Commonwealth criminal proceedings. The Crimes Amendment (Strengthening the Criminal Justice Response to Sexual Violence) Act 2024 (Cth) commenced on 11 December 2024 and amended Pt IAD to expand these protections.

The Commonwealth offences to which Pt IAD applies include war crimes, slavery, trafficking in persons, child sexual offences outside Australia, offences involving child abuse material outside Australia, torture, and offences relating to the use of postal or carriage services involving sexual activity with children. The full list of relevant offences is at s 15Y(1) and (2). Proceedings relating to such offences are called a “child proceeding” where they involve a child complainant (s 15Y(1)) or a “vulnerable adult proceeding” where they involve an adult complainant (s 15Y(2)): s 15YA.

A “child complainant” or “child witness” includes a person who was aged under 18 years at the time of the of alleged offence, but does not include a person now aged 18 years or over if they inform the court they do not wish to be treated as a child complainant or child witness: s 15YAC and s 15YAD, respectively.

A “vulnerable adult complainant” is one who is alleged to be a victim in a s 15Y(2) vulnerable adult proceeding, unless they inform the court they do not wish to be treated as a vulnerable adult complainant: s 15YAA.

A court may declare a person to be a “special witness” if satisfied they are unlikely to be able to satisfactorily give evidence in the ordinary manner due to a disability, or due to intimidation, distress or emotional trauma arising from age, cultural background, relationship to a party to the proceedings, the nature of the evidence or some other relevant factor: s 15YAB. In a special witness proceeding, the court may order that specific protective measures under Pt IAD are to apply to a special witness: s 15YAB(3).

Child complainants, child witnesses, vulnerable adult complainants and special witnesses are all classed within the term “vulnerable person” and each of the protective measures under Pt IAD apply to this category of witness.

Directions or warnings about alternative means of giving evidence can be given at any time. In R v DBG [2002] NSWCCA 328 at [23], Howie J held it was “highly preferable” that such warnings be given either immediately before or immediately after the evidence is given rather than wait until the summing up. However, in Long (a pseudonym) v R [2021] NSWCCA 212, the court, though endorsing R v DBG that this course was preferable, held there was no rule to that effect and stated the timing of warnings and whether, and how often, they should be repeated, remains within the trial judge’s discretion [7], [73]–[74].

The statutory requirements regarding warnings or directions to juries in Commonwealth proceedings are limited, but do not appear to preclude giving directions in the terms suggested below when particular alternative measures are employed.

The court retains a discretion as to whether a witness is permitted to give evidence via CCTV or audio-visual link. It is generally not sufficient to deny use of such technology merely because the jury might form the impression the accused is or was violent: Sudath v R [2008] NSWCCA 207 at [28]–[29]. See also R v Pirrello, Pirrello & D’Agostino [2019] NSWSC 1476 at [29] where it was held that while there may be some inconvenience in a witness giving evidence via AVL, inconvenience falls well short of prejudice, and even less so unfairness. There may be some disadvantage to an accused person who does not see the face of a witness giving evidence, but where counsel can undertake that role on an accused’s behalf, such disadvantage as may arise falls well short of prejudice, much less impermissible prejudice.

The above direction should be adapted where the accused is a vulnerable person and is permitted by the court to give evidence by CCTV or other alternative arrangements.

The direction below should be adapted to the circumstances of the case. The suggested direction for recorded statements specifically of child complainants/witnesses in sexual offence matters is incorporated into [1-392] Suggested direction — child complainant’s/witness’s evidence given at pre-recorded hearing.

This direction is also located at [5-420] Suggested direction — pre-recorded evidence of the chapter [5-400] Pre-recorded evidence in child sexual offence proceedings — Child Sexual Offence Evidence Program (CSOEP).

This direction is also located at [5-420] Suggested direction — pre-recorded evidence of the chapter [5-400] Pre-recorded evidence in child sexual offence proceedings — Child Sexual Offence Evidence Program (CSOEP).

The direction should be adapted where the witness is not a child but has difficulties with communication and a witness intermediary has been appointed under s 294M(3)(b).

Although adult complainants and sexual offence witnesses in prescribed sexual offence proceedings, domestic violence offence complainants, vulnerable accused persons, and vulnerable persons in Commonwealth proceedings are all permitted to have support persons present when they are giving evidence, there is no statutory requirement for a jury direction or warning to be given regarding this measure in the way it is required for “vulnerable persons” under the CPA.

For consistency and to avoid jury speculation, it may be considered appropriate to fashion a direction in such cases that corresponds with the suggested direction below for “vulnerable persons” — children and cognitively impaired persons.

Where a support person is utilised by a vulnerable person to assist them with any difficulty with giving evidence due to an impairment or disability (as permitted by s 306ZK(3)(b)), consider should be given to whether it is more appropriate to employ the suggested direction where a witness intermediary is used, appropriately adapted to the particular case (see [1-395] Suggested direction — use of witness intermediary).

A person appointed to ask witnesses questions in cross-examination on behalf of an unrepresented accused need not be a lawyer; the appointment of a Court Registrar or Deputy Registrar is also suitable. The person appointed should be permitted to be present when witnesses are given evidence in chief and a list of proposed questions for cross-examination does not need to be supplied beforehand to the trial judge: Clark v R [2008] NSWCCA 122. See also MS v R [2017] NSWCCA 252.

See also [1-800] Self-represented accused regarding general court procedure and directions for proceedings involving unrepresented accused persons.

Part IAD of the Crimes Act 1914 (Cth) does not require a direction to be given to the jury regarding the appointment of persons to ask questions on behalf of unrepresented accused. However, it would be prudent to adapt the above suggested direction for relevant Commonwealth proceedings.

The Evidence (Audio and Audio Visual Links) Act 1998 permits evidence to be taken via audio link or audio visual link from elsewhere in NSW, non-participating States and foreign countries (other than New Zealand) (Pt 1A), or from participating States (Pt 2). Links to New Zealand are dealt with in Pt 6 Trans-Tasman Proceedings Act 2010 (Cth).

The court must not make a direction for evidence to be received by audio link or audio visual link if (ss 5B(2), 7(2)):

In the case of links from elsewhere in the State, non-participating States and foreign countries (other than New Zealand), an additional basis for refusing a direction is where the court is satisfied that the person in respect of whom the direction is sought will not give evidence: s 5B(2)(d). Furthermore, in cases where the link is proposed from elsewhere in NSW, the court must not make a direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so: s 5B(3). Even where none of the excluding circumstances is established, the court retains a discretion to refuse to make a direction: Australian Securities and Investments Commission v Rich (2004) 49 ACSR 578 at [12].

Evidence may be taken via video link or telephone from New Zealand provided the necessary facilities are available: ss 51 and 52 Trans-Tasman Proceedings Act 2010 (Cth); Derbas v R [2007] NSWCCA 118 at [35].

In R v Wilkie [2005] NSWSC 794, Howie J held that, in the case of an application for evidence to be received by way of audio visual link from a foreign country, there is no precondition to the making of a direction based on the witness having a good reason for not giving evidence in person: at [12]. Difficulties in transmission — for example, a delay in receipt between image and sound — will not necessarily result in the rejection of evidence sought to be received by way of audio visual link: Derbas v R at [39]. For an overview of the way in which some of the issues pertaining to the use of audiovisual evidence, including the materiality of the evidence, the assessment of credit, management of documents in cross-examination, technological difficulties and the length of cross-examination: see Australian Securities and Investments Commission v Rich at [19]–[43].

In R v Ngo (2003) 57 NSWLR 55 the court addressed the question of unfairness under s 5B(2)(c) at [108]:

The option of receiving evidence via audio visual link from outside Australia under s 5B extends to proceedings for Commonwealth offences and does not constitute a breach of s 80 of the Constitution: R v Wilkie (2005) 64 NSWLR 125.

In addition to the cited statutory provisions available for particular witnesses to give evidence by alternative means, the courts have implied powers related to the exercise of their jurisdiction. Such powers exist to serve the administration of justice: John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 at 481; BUSB v R (2011) 80 NSWLR 170 at [27], [34]. Such an order will only be made where it is necessary to do so: Grassby v The Queen (1989) 168 CLR 1 at [21]. “Necessary” in this context means that it should be “subjected to the touchstone of reasonableness”: Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at [51]. The test of necessity should be applied with varying degrees of strictness and, where the relevant implied power impinges upon a fundamental principle of the administration of criminal justice, such as the right to confront accusers, the test must be applied with a higher level of strictness: BUSB v R at [33].

In BUSB v R, the scope of the power was discussed in connection with the power to make orders for the screening of witnesses. In that case, it was accepted that the District Court did have such a power: at [24], [51]. The court confirmed that such an order could be made for the purpose of protecting national security: at [42], [62]. The court distinguished between the existence of the power on the one hand and the “facts and matters pertinent to the exercise of the discretion” which will vary from case to case: at [42]–[44], [48]–[50].

The exercise of such powers should be “carefully circumscribed”: R v Ngo [2001] NSWSC 339 at [26]. See also R v Ngo [2003] NSWCCA 82 at pp 69ff which dealt with a similar issue in the context of witnesses being permitted to give evidence remotely without the accused being able to see them while they gave their evidence.