Division 5 Miscellaneous
306ZJ Validity of proceedings not affected
(1) The failure of a vulnerable person to give evidence in accordance with a provision of this Part does not affect the validity of any proceeding or any decision made in connection with that proceeding.
(2) The failure of an investigating official to record a representation of a child in accordance with any regulations made under section 306Q does not affect the validity of any proceeding in which evidence of the representation is given.
306ZK Vulnerable persons have a right to presence of a supportive person while giving evidence
(1) This section applies to:
(a) a criminal proceeding in any court, and
(b) a civil proceeding arising from the commission of a personal assault offence, and
(c) apprehended violence order proceedings within the meaning of the Crimes (Domestic and Personal Violence) Act 2007, and
(d) a proceeding before the Victims Compensation Tribunal in respect of the hearing of a matter arising from the commission of a personal assault offence that is the subject of an appeal or a reference to it, and
(e) a proceeding in relation to an application for a child protection prohibition order or to vary or revoke any such order.
(2) A vulnerable person who gives evidence in a proceeding to which this section applies is entitled to choose a person whom the vulnerable person would like to have present near him or her when giving evidence.
(3) Without limiting a vulnerable person’s right to choose such a person, that person:
(a) may be a parent, guardian, relative, friend or support person of the vulnerable person, and
(b) may be with the vulnerable person as an interpreter, for the purpose of assisting the vulnerable person with any difficulty in giving evidence associated with an impairment or a disability, or for the purpose of providing the vulnerable person with other support.
(4) To the extent that the court or tribunal considers it reasonable to do so, the court or tribunal must make whatever direction is appropriate to give effect to a vulnerable person’s decision to have such a person present near the vulnerable person, and within the vulnerable person’s sight, when the vulnerable person is giving evidence.
(5) The court or tribunal may permit more than one support person to be present with the vulnerable person if the court or tribunal thinks that it is in the interests of justice to do so.
(6) This section extends to a vulnerable person who is the accused or the defendant in the relevant proceeding.
Note. This section does not apply if a child or cognitively impaired person giving evidence is a complainant in proceedings for a prescribed sexual offence. In that case, section 294C sets out the entitlements of the child or cognitively impaired person to have one or more support persons present when giving evidence.
306ZL Vulnerable persons have a right to alternative arrangements for giving evidence when accused is unrepresented
(1) This section applies to a criminal proceeding in any court, or a civil proceeding arising from the commission of a personal assault offence, in which the accused or defendant is not represented by an Australian legal practitioner.
(2) A vulnerable person who is a witness (other than the accused or the defendant) in a proceeding to which this section applies is to be examined in chief, cross-examined or re-examined by a person appointed by the court instead of by the accused or the defendant.
(3) If any such person is appointed, that person is to ask the vulnerable person only the questions that the accused or the defendant requests the person to put to the vulnerable person.
(4) A person appointed under this section, when acting in the course of his or her appointment, must not independently give the accused or the defendant legal or other advice.
(5) The court may choose not to appoint such a person if the court considers that it is not in the interests of justice to do so.
(6) This section applies whether or not closed-circuit television facilities or other similar technology is used to give evidence, and whether or not alternative arrangements under section 306ZH are used in the proceedings.
(7) Anything done or omitted to be done by a person who:
(a) is appointed under this section, and
(b) is an Australian legal practitioner,
when acting in the course of the appointment or otherwise in accordance with this section does not, if the thing was done or omitted to be done in good faith, subject the person personally to any action, liability, claim or demand.
306ZM Court orders
The court may make, vary or revoke an order under a provision of this Part either on its own motion or on application by a party to the proceeding or by the vulnerable person giving evidence.
306ZN General discretion of court not affected
Unless a contrary intention is shown, nothing in this Part limits any discretion that a court has with respect to the conduct of a proceeding.
Note. See, for example, Part 3.11 (Discretions to exclude evidence) of the Evidence Act 1995.
Without limiting any regulations made under section 4, the regulations may make provision for or with respect to the use of closed-circuit television facilities or other similar technology for the giving of evidence by vulnerable persons in accordance with this Part.
306ZP Rules of court
(1) Rules of court may (subject to any regulations made under this Act) be made in respect of the giving of evidence under this Part.
(2) In particular, rules of court may (subject to the regulations) also make provision for or with respect to the use of closed-circuit television facilities or other similar technology for the giving of evidence by vulnerable persons in accordance with this Part.