14. Witnesses

14.1 Introduction

Prosecutors will deal with all witnesses in a dignified, professional and proper manner.

At the earliest opportunity, consideration should be given as to whether a witness should be referred to the Witness Assistance Service (see 13. WAS guidelines).

In accordance with the principles governing the treatment of victims set out in the Tasmanian Charter of Rights for Victims of Crime, a victim who is to be a witness for the prosecution is to be informed about the trial process and his or her rights and responsibilities as a prosecution witness. They are also to be informed of the progress of the prosecution, and if charges are likely to be discontinued or altered they are to be consulted in accordance with the decision to prosecute guidelines and, where applicable, the sexual crimes guidelines.

14.2 Children and special witnesses

When dealing with a witness under 18 years of age, a person with intellectual disabilities, a victim of an alleged sexual offence, family violence or other crime of violence, or a person who is at some special disadvantage, consideration must be given to whether the person is an “affected child” or a “special witness” within the meaning of the Evidence (Children and Special Witnesses) Act 2001. If these provisions are applicable, the witness should be advised of their options and consideration should be given, particularly with a child witness, to having their evidence pre-recorded.

The prosecutor with conduct of the case should make application notwithstanding any forensic advantage that is perceived in not making appropriate arrangements.

Regardless of whether any witness who may be declared a “special witness” will give evidence live in court, via closed circuit television or in a pre-recorded hearing, counsel should consider making an application to have the witness declared a special witness. The witness should be consulted in the decision; specifically a witness should be advised that they may be required to give evidence again in any retrial.

The Act provides that where a witness is declared a special witness in any prescribed proceedings the court must (where facilities are available) make an audio visual record of the evidence (s7A). In the event of a subsequent trial or retrial this recording may be admitted into evidence (s7B).

In situations where an audio visual recording of the evidence will be made, please liaise with court staff to ensure that the recording settings are modified so that only the image of a witness is recorded during the evidence and that any recording is at highest possible resolution.

Please note that the Criminal Justice Report released following the Royal Commission into Institutional Responses to Child Sexual Abuse identified recording a complainant’s evidence in order to avoid the need for them to give evidence again if there is a subsequent trial as an important procedure in child sexual abuse prosecutions.

Cases involving an alleged sexual offence or cases where there are vulnerable witnesses should be expedited. In such cases it is our aim to have one prosecutor maintain carriage of the matter from the time of committal to finalisation, noting however that sometimes changes in the prosecution team may be unavoidable due to staffing and court timetables.

14.3 Special measures for children giving evidence in court

The Australasian Institute of Judicial Administration has developed a Bench Book for Children Giving Evidence in Australian Courts. The Bench Book outlines sexual abuse of children and their experience of the justice system, communicating with children, children’s evidence and coping skills, suggested procedures for children giving evidence and a suggested script for use in special hearings with children or cognitively impaired witnesses.

Prosecutors with proceedings involving children or cognitively impaired witnesses are strongly encouraged to review the relevant portions of the Bench Book in preparing the matter for trial. The Bench Book can be accessed here Child-Witness-BB-2020.pdf

14.4 Witness Intermediary Scheme

If a witness is giving evidence in relation to a specified offence within the meaning of the Evidence (Children and Special Witnesses) Act 2001, consideration must be given to whether the Witness Intermediary Scheme (“the Scheme”) applies. The Scheme allows for the use of witness intermediaries to assist children and adults with a communication need who are giving evidence in relation to specified offences as defined in s3 of the Act.

• All children (under the age of 18 years) who are giving evidence in relation to a specified offence. The Scheme applies equally to child complainants and child witnesses.
• Adults (a person who has attained the age of 18 years) with a communication need who are giving evidence in relation to a specified offence. An adult witness has a communication need if the “quality or clarity of evidence given by the witness may be significantly diminished by the witness’s ability to understand, process or express information” (see s7F).
  The court can order an assessment on its own motion. However, on most occasions, the court will be reliant on the prosecutor to identify witnesses likely to have a communication need. The basis of any perceived need should be articulated in general terms.

There is an ongoing obligation on prosecutors to be aware of whether matters for specified offences are likely to invoke the Scheme. Prosecutors should inform themselves of this upon the allocation of a file.

The Act directs a judge to make an order that an assessment report be prepared in specified proceedings for the class of witnesses listed in s7I(1)(a)-(d).

• A judge is not to make an order that an assessment report be prepared if the judge is satisfied that:
• it is unnecessary or inappropriate to make the order
• the witness does not wish the order to be made
• the making of the order would be contrary to the interests of justice
  (s7I(3)(a)-(c))

Therefore, if the prosecutor considers the Scheme may apply, its operation must be discussed with the witness. The prosecutor must ask the witness whether they wish to participate in the Scheme. If the witness does not wish to participate in the Scheme, the prosecutor is to make a file note detailing any reasons given by the witness and inform the court that the witness does not consent. If the witness does wish to participate in the Scheme, they must consent to participate in the assessment report procedure. A witness intermediary consent form should be completed by the witness (or their guardian) and placed on the file. In circumstances where this cannot be completed, verbal consent can be provided and a file note made.

There will be occasions when a prosecutor forms a view that a child witness does not need an intermediary. This may be due to a number, or combination, of reasons. Matters to take into account will include the witness’s age, their apparent intellectual ability, the subject matter of the evidence and whether the evidence is in dispute. In such cases, the prosecutor should make a file note explaining the reasons why this is the case and must be in a position to make submissions to a judge addressing the factors in s7(3)(a) and (c).

During the appearance when an assessment report is sought, prosecutors should advise the court of any material or issues which may be relevant to the intermediary in conducting their assessment. This will include the witness’s statement to police (video or written) or any communication needs that have been identified by Tasmania Police, WAS or the prosecutor. If an assessment report is ordered, the prosecutor is to provide the associate or court clerk with a written document containing the witness’s contact details (together with parent/guardian details, if applicable) and confirmation of the witness’s consent. A copy of any witness statement will be provided to the court in circumstances where the court has determined it to be necessary. Staff from the Office are not to provide any material directly to any section of the Department of Justice responsible for the Scheme.

In determining whether to order an assessment report, a judge may inform themselves on any matter in any manner that they think fit (s7L).

An assessment report will ordinarily take three weeks to complete. Once an assessment report has been prepared, it will be provided to the court for distribution to the parties, subject to s7I(5). A judge is to make an order that a witness intermediary be used if, having considered the assessment report, they are satisfied the use of the intermediary will assist the proceeding (s7J). A ground rules hearing will then be convened, in advance of the witness giving evidence (s7K).

14.5 Witness expenses

Section 17 of the Criminal Procedure (Attendance of Witnesses) Act 1996 provides:

(1) Unless otherwise ordered by the Court, the following people are entitled to be paid expenses in accordance with this section:

• (a) any person who gives evidence in a criminal proceeding at the request of the prosecution;
• (b) any person whom a Crown Law officer certifies as having attended at any place at the request of the prosecution to give such evidence.

(2) The Court may order the payment of expenses to any person who attends at any place for the purpose of giving evidence in a criminal proceeding.

Thus, where a witness attends court but does not give evidence, the clerk involved in the trial will need to notify a Crown Law Officer of that act, in writing, providing details as to why the person was required at court and why the person did not give evidence. A draft authorisation for witness expenses should also be provided so the Crown Law Officer may certify to the Registrar that the person was indeed required to attend court to give evidence but did not do so.

14.6 Financial assistance for accompanying persons

Many witnesses and complainants require support to give evidence in matters prosecuted by the Office. It is primarily the responsibility of the Witness Assistance Service (WAS) to provide witness support for matters prosecuted by the Office.

The Office receives numerous requests for financial assistance to be extended to persons to accompany a witness to court or to a briefing by counsel. In all but the most exceptional cases, all requests should be refused and no expectation created that any financial assistance will be provided. Clerks and prosecutors should make it clear that the legislation covering the expenses of witnesses does not extend to accompanying persons and, as a consequence, there is very little the Office can do about expenses for accompanying persons.

However, there will always be exceptional cases. All requests for financial assistance for accompanying persons are to be made directly to the Deputy Director, who will then consult with the Director and the WAS manager in order to determine whether a request will be made to the Supreme Court.

Most cases prosecuted by the Office will have witnesses who are distressed and desirous of having a family member present to support them. This is not exceptional. For the Office to make a request to the Supreme Court, the case will need to have exceptional features and be one that is beyond the capacity of WAS to appropriately undertake. Therefore, the prosecutor should consult the WAS officer prior to making any request for financial assistance for an accompanying person.

14.7 Witness refusal to be sworn

A refusal to be sworn is a contempt of court, and so long as the witness is present in court is does not matter how he came to be there, i.e. the lawfulness of the subpoena or other process does not afford a reason to refuse to be sworn (see R v Galvin [1826] NSWSC 52; Smith v the Queen [1991] 25 NSWLR 1).

Duress can be a defence (see Re K (1983) Crim App Rep 82).

Although not applicable by force of law to the Supreme Court in its criminal jurisdiction, as a guide or framework it is useful to refer to rule 941 of the Supreme Court Rules 2000 which indicates the form proceedings for contempt would follow in crime and civil (such was applied in R v Garland [1997] QSC 145). Rule 941(1) provides the court can order an arrest or issue a warrant for the arrest of the respondent and (when he or she is before the court) rule 941(2)(a) provides the court is to:

• inform the respondent of the contempt charged
• require the respondent to defend the charge
• determine the matter of the charge after having heard the respondent
• if it finds the respondent guilty of contempt, make any order for the punishment or discharge of the respondent as may be just

Rule 941(3) provides:

The respondent is to be detained in custody until the charge is disposed of, unless the court grants bail.

The procedure to be followed in such circumstances is set out in Stanley v Tasmania [2015] TASCCA 24, particularly Porter J at [30]-[31].

The prosecutor ought to see that a refusal to be sworn is attended by contempt proceedings, as "the criminal law and the justice system cannot be held to ransom by the fears of witnesses, however well-founded be those fears" (see R v Guariglia [2000] VSC 45 per Byrne J).

In practise, a judge will almost always give a witness an opportunity to reconsider a refusal to be sworn, although an adjournment for the purpose of seeking legal advice or representation does not have to be granted. Proceedings for contempt should not take place before the jury before whom the witness was called. The judge, upon a finding of contempt, must give the offender an opportunity to present material relevant to sentence (see Stanley v Tasmania [2015] TASCCA 24 per Tennent J at [18]).

The refusal to give evidence by a witness in a criminal case is regarded as serious. In sentencing the factors to be considered are set out by Tennent J in Stanley v Tasmania [2015] TASCCA 24 at [20]-[25].