SA Introduces Bill to Provide Court Support for Vulnerable Witnesses

On 23 September 2020, the SA Attorney-General, Vickie Chapman, introduced the Evidence (Vulnerable Witnesses) Amendment Bill 2020 (SA) (“the Bill”) into the House of Assembly (“the Assembly”). The Bill passed the Assembly on 15 October 2020, and is yet to be introduced into the Legislative Council. The Bill seeks to amend the Evidence Act 1929 (SA) (“the Act”).

Background

The Bill proposes amendments to the Evidence Act 1929 (SA), with the main objective (as noted in the Minister’s speech) being to “make provision for a witness to be accompanied by a canine court companion for the purpose of providing emotional support while they are giving their evidence”.

The Bill also seeks to minimise “the risk of vulnerable witnesses having to give evidence both at pre-trial special hearings and at trial, through clearer provisions regarding the admission of pre-recorded evidence and also provides that, where practicable, the canine court companion is not to be visible in any audio-visual record of the evidence or to a jury”. This is directed at minimising any possible prejudicial effect that the presence of a dog might have.

The Minister also notes in her speech, the canine court companions can “accompany witnesses while they give their evidence and to make clearer provisions regarding pre-trial special hearings and the admission of pre-recorded evidence.”

In her speech, the Minister’s noted that by using canine court companions, they will give “comfort to witnesses in waiting areas of courts prior to them giving their evidence, and the final stage … will be the use of the canine court companions in the courtroom while the witnesses give evidence”.

Background to the Canine Court Companion Project

As outlined in the Minister’s speech, since approximately May 2018, the Office of the Director of Public Prosecutions has undertaken a canine court companion project as part of its ongoing work in assisting vulnerable witnesses, with the project developed in conjunction with the Guide Dogs of SA and NT.

The presence of animals (particularly dogs), has been shown to provide comfort and support to people dealing with trauma, particularly children. Having a canine court companion present while recounting traumatic events has a range of positive outcomes for vulnerable witnesses, such as decreasing anxiety and heart rate and increasing memory function and mental clarity.

Brief Overview of the Amendments

The proposed amendments to the Act include:

• amendments to “Section 4 - Interpretation”, “Section 12AB - Pre-trial special hearings”;
• inserting new “Section 12AC - Effect of orders made at pre-trial special hearing”, after Section 12AB; and
• amendments to “Section 13 - Special arrangements for protecting witnesses from embarrassment, distress etc when giving evidence”, “Section 13A - Special arrangements for protecting vulnerable witnesses when giving evidence in criminal proceedings”, “Section 13BA - Admissibility of recorded evidence by certain witnesses in certain criminal proceedings” and “Section 67H - Meaning of sensitive material”.

Current Guidelines for Supporting Vulnerable Witnesses

As noted on the Victims of Crime South Australia website, current provisions for supporting vulnerable witnesses include:

• having a friend or relative in court while the witness gives evidence, provided that this support person is not also appearing as a witness;
• having a screen in the court, so the witness does not have to see the accused person while giving evidence;
• having the court closed to the public while the witness gives evidence; and
• the witness giving evidence on closed circuit television.

The website also notes that vulnerable witnesses can ask the prosecutor to apply to the court to give evidence using these special provisions.

The South Australian Attorney-General’s Department provides Guiding Principles for supporting vulnerable witnesses giving evidence. Some of the Guiding Principles are:

• people with disability have the same right as other members of society to access justice and pursue any grievance;
• people with disability should have their privacy and dignity respected;
• investigative interviewers should be trained to take a holistic account from a person with disability;
• requiring vulnerable witnesses to recount their story multiple times is harmful and should be kept to a strict minimum;
• people with disability should receive the support they require throughout the criminal justice system in order to ensure their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and needs; and
• innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.

The Law Society of South Australia has given support to the Bill. In a letter to the Minister dated 21 July 2020, Tim White (President) commented:

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Evidence (Vulnerable Witnesses) Amendment Bill 2020 (SA) - Bill and supporting information available from TimeBase's LawOne Service

Law Society of South Australia - Correspondence of 21 July 2020 (Accessed 22 October 2020)

Supporting Vulnerable Witnesses in the Giving of Evidence - SA Attorney-General's Department (Accessed 22 October 2020)

Victims of Crime South Australia - Government of South Australia (Accessed 22 October 2020)