Safety and protection of victim and witnesses

Australia

  • Australasian Institute of Judicial Administration Incorporated, Bench Book for Children Giving Evidence in Australian Courts (updated February 2015)
    This bench book is intended primarily for judicial officers who deal with children giving evidence in criminal proceedings as complainants or witnesses, not as accused. It does not specifically address domestic violence, however is relevant in that context where child witnesses are involved in proceedings. Chapter 3 discusses the issues related to children and the court process, including cross-examination and good practices for questioning chuldren. Chapter 4 discusses the judicial role in child sexual abuse cases and preparation for trial. Chapter 5 discusses procedures for children giving evidence.
  • King, Michael S, Solution-Focused Judging Bench Book (Australasian Institute of Judicial Administration and the Legal Services Board of Victoria, 2009).
    This Bench book has a section that examines the nature and effects of Intimate Partner Violence. King looks at the use of the justice system by perpetrators to harass and manipulate women. Some perpetrators ‘make threatening gestures to victims at court, or stalk, obstruct, assault and verbally abuse victims (p 112) at or after court or tailgate them on their way home’. Some victims are concerned that inadequate measures are being taken to ensure their safety at family and Magistrate Court proceedings (p 113).

NSW

  • Judicial Commission of NSW, Criminal Trial Courts Bench Book (2016).

    [1-358]: In relation to closed courts, the bench book provides that ‘[w]here proceedings are in respect of a prescribed sexual offence… [the Act requires] that certain proceedings or parts of proceedings, for a prescribed sexual offence be held in camera’

    [1-360] Another section of the bench book ‘addresses directions or warnings where evidence is given by alternative means particularly Closed Circuit Television (CCTV), alternative seating arrangements, the use of screens, support persons, the admission of pre-recorded out-of-court representations to police and evidence given via audio visual link’. There is a useful Table setting out in summary form many of the relevant provisions for a ‘vulnerable person’, a complainant/sexual offence witness and a domestic violence complainant

    [1-840] Finally, the bench book deals with the cross-examination of victims and witnesses in sexual offence proceedings and vulnerable witnesses in criminal proceedings by unrepresented litigants. Special procedures apply in these circumstances in that ‘any cross-examination must be conducted through a court-appointed intermediary’. ‘The purpose of the provisions is to spare the witness ‘the need to answer questions directly asked by him or her by the person said to have committed the offence’ (Clark v R [2008] NSWCCA 122).
  • Judicial Commission of NSW, Equality before the Law: Bench Book (2018).

    See section 7.3.3.2 Domestic Violence and Sexual Assault Matters: ‘Consider the difficulties for a woman in presenting evidence about domestic violence or sexual assault in our adversarial system — in much the same way as for a child presenting evidence about child sexual abuse (see Section 6), she may have to come face to face with her alleged attacker and be prepared to have her reputation attacked by the defendant and his legal representative(s). You may, for example, need to consider whether, in the circumstances of any particular case, it would be appropriate to allow the woman to give her evidence and/or be cross-examined via one or more of the alternative means specifically allowed for in relation to children (see Section 6.3.3), and/or whether to close the court or allow for the presentation of evidence in narrative form. There are protective procedural provisions in the Criminal Procedure Act 1986, which apply to complainants and sexual assault witnesses in prescribed sexual offence proceedings.’

    ‘When a woman is permitted to present her evidence using alternative means, you should ensure that any jury is properly directed at the point that this happens about why the woman is presenting her evidence this way, and that this does not mean they should give it any less (or any more) weight than if it was presented in the usual way. You may also need to intervene if the defendant or their legal representative tries to suggest that evidence presented in this way should be given less weight.’
  • Judicial Commission of NSW, Local Court Bench Book (2017).
    Section [8-000] discusses evidence by domestic violence complainants.
  • Judicial Commission of NSW, Sexual Assault Trials Handbook (2017).
    Section [10-500] discusses important general directions in sexual assault trials. Section [7-000] contains relevant literature, including [7-240] procedure in prescribed sexual offence cases.

QLD

  • Magistrates Court of Queensland, Domestic and Family Violence Protection Act 2012 Bench Book (2018).
    Chapter 14 Practice and Procedure for Court Proceedings discusses a number of issues relevant to the safety and protection of victims and witnesses, including the sexual assault counselling privilege, explanation of proceedings and orders, protection of children, cross-examination, protected witnesses, impaired capacity, abuse of process.
  • Chapters 7 and 8 discuss procedures and approaches in relation to different types of protected witnesses. Chapters 10 and 11 discuss procedures in relation to child and special witnesses respectively. The bench book’s additional material includes guidelines for pre-recording evidence of an affected witness.

Vic

  • Judicial College of Victoria, Family Violence Bench Book (2014).
    2.1.7 discusses the prohibition on personal cross-examination of protected witnesses in the context of family violence intervention order proceedings. 2.4.6 notes the court’s power to prevent improper questioning of witnesses. 2.5.3 discusses measures for minimising the trauma children can suffer when participating in court proceedings, and notes that children are automatically protected witnesses.
  • Judicial College of Victoria, Open Courts Bench Book (2014).

    This bench book addresses the principle of open justice in the context of Victorian courts and tribunals, and the qualifications to that principle. Chapter 3 considers the grounds and categories under which a suppression or closed court order can be made. The relevant grounds and categories to family violence are:

    [3.4] Ground 1: Administration of justice (preventing prejudice to the jury or ensuring a fair trial for the accused);

    [3.6] Ground 3: Safety of persons.

    [3.7] Grounds 4 and 5: Undue distress or embarrassment to a complainant or witness in sexual offence and family violence proceedings, and to child witnesses in criminal proceedings.

    Chapter 4 considers the grounds and categories under which a suppression or closed court order can be made. The relevant grounds and categories to family violence are:

    [4.4] Ground 1: Administration of justice (preventing prejudice to the jury or ensuring a fair trial for the accused);

    [4.6] Ground 3: Safety of persons.

    [4.7] Grounds 4 and 5: Undue distress or embarrassment to a complainant or witness in sexual offence and family violence proceedings, and to child witnesses in criminal proceedings.
  • Judicial College of Victoria, Victorian Criminal Charge Book (2017).

    2.3 discusses procedures for taking evidence in certain circumstances, including to reduce the stress of giving evidence on particular witnesses, to prevent the accused from personally cross-examining certain witnesses, and to allow evidence that has been pre-recorded to be used in certain legal proceedings.

    Note: The former Sexual Assault Manual has been replaced. The overlapped content in the Sexual Assault Manual continues to be available in the Criminal Charge Book, Victorian Sentencing Manual and Victorian Criminal Proceedings Manual.
  • Judicial College of Victoria, Victorian Criminal Proceedings Manual (2015).

    Chapter 13 of the manual examines the procedures for taking evidence from witnesses. The same material is produced in the Criminal Charge Book (above).

    Note: The former Sexual Assault Manual has been replaced. The overlapped content in the Sexual Assault Manual continues to be available in the Criminal Charge Book, Victorian Sentencing Manual and Victorian Criminal Proceedings Manual.

WA

  • Fryer-Smith, Stephanie, Aboriginal Benchbook for Western Australia Courts (2nd ed, 2008).
    • The appearance of an Aboriginal accused by video/audio link may be appropriate and advantageous for a number of reasons including ‘[t]o assist the court to obtain the best evidence from special witnesses or where an Aboriginal accused or an Aboriginal witness is intimidated by the court environment’ (7.1.2).
    • Female Aboriginal witnesses may face particular difficulties in giving evidence including: the feeling that ‘the physical courtroom is intimidating’; ‘the presence of the accused person or other Aboriginal people in the courtroom may exacerbate the intimidation experienced by the female witness’; and ‘sign language may be used by someone in the back of the court to intimidate the witness while she is giving evidence, which sign language goes unnoticed by the court’ (7.5.2).
    • The court may order that certain persons leave or be excluded from the courtroom proceedings ‘to facilitate Aboriginal witnesses giving full and frank evidence to the court. Otherwise, Aboriginal customary law barriers (such as bans upon speaking in front of certain people, or revealing particular kinds of information to certain people) may inhibit the giving of such evidence’ (7.5.4).

International

  • Neilson, Linda C, Domestic Violence Electronic Bench Book (National Judicial Institute, 2017).

    In Section 5.3, the bench book discusses detection and prevention of intimidation in court rooms. In terms of detecting intimidation in the court, the bench book notes that the targeted person may be subject to subtle forms of intimidation in the courtroom, and further, that subtle forms of intimidation can have different meanings in different cultures. It provides possible strategies for judges to employ when cultural factors may be an issue (Section 5.3.1).

    A list of options for preventing in-court intimidation is provided, including: monitoring communication between parties; learning about DFV; consulting cultural experts; preventing abusive questioning; ensuring cross-examination is conducted by a lawyer; redirecting perpetrator testimony; allowing the victim to testify without being confronted by the perpetrator; providing separate waiting rooms; and adjourning to take relevant actions (Section 5.3.2).

    The bench book also discusses court options available if a child is to offer direct testimony in a family law case involving domestic violence in Section 6.8. These may include, relevant to safety and protection: preventing cross-examination of the child by a party (as opposed to lawyer for a party); allowing the child to testify behind a screen or from another room via video link; allowing a support person to sit near the child; removing a party or parent from the court during the child’s testimony; preventing age-inappropriate questioning.