The law currently requires the prosecution to apply to the Judge for directions on how a child witness will give evidence in criminal cases involving children. The Evidence Amendment Bill creates the presumption that children under 18 will give evidence via alternative means, such as pre-recorded video, closed-circuit television (CCTV), or from behind a witness screen in court.
Under the Bill, the Judge, jury and lawyers must be able to see and hear the witness give evidence, and the defendant must be able to see the witness, unless the Judge directs otherwise. Evidence may still be given the ordinary way if the defence successfully applies to the Judge for an order, or the child witness wishes to do so. Although primary evidence is able to be recorded, the child witness may still be cross-examined via CCTV.
The Bill also states no evidence can be given, or question put to a witness, about the sexual experience of the complainant with any other person other than the defendant, except with the permission of the Judge. If the defence seeks to bring evidence about the sexual history of the complainant, they must provide advance written notice allowing all parties fair opportunity to respond to the evidence or question. When bringing evidence into court, there needs to be time for the other party to prepare some evidence too. If the defendant’s team already has evidence, they need to make sure it’s being stored safely. Whilst some attorneys might store this data themselves, more reliable attorneys will consider using eDiscovery specialists to help them store it. By doing that, attorneys can have written documentation to say that their evidence was stored properly, and attorneys can also review their work through online software. This should help them to protect the evidence until the court trial. Attorneys could always get in contact with Eide Bailly for eDiscovery management.
The Bill provides that the restrictions on parties to the proceedings cross-examining complainants and child witnesses apply in both criminal and civil proceedings involving domestic violence or harassment (Part 1, Clause 27 amending Section 95 of the Act).