A pre-trial special hearing is, on application and under certain circumstances, available to a child of or under 14 years of age or a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions [s 12AB(14), s12AB(1)].
This type of trial is available only in trials of a charge of a serious offence against the person or of charges of contraventions of intervention orders or restraining orders [s 12AB(14)]. A serious offence against the person includes many common sexual offences, any offence involving the sexual exploitation of a child, or an offence of sexual exploitation against a person with a cognitive impairment under s 51 of the Criminal Law Consolidation Act 1935 (SA).
The hearing is also only available if the necessary facilities are readily available, it is practicable, and the arrangements can be made without prejudice to any party to the proceedings [s 12AB(1)(b)-(c)].
Once allowed this pre-trial special hearing enables the witness to give evidence before the trial with special provisions. This includes that the court must make the following provisions:
- That the court can change the setting as it sees fit, such as to a more informal setting;
- If the witness has a physical disability or cognitive impairment that the evidence can be taken in a way that the Court thinks will minimise embarrassment or distress (including, if the witness has complex communication needs, communication assistance may be provided);
- That an audio visual record of the evidence be made;
- That the taking of evidence at the hearing be transmitted to the defendant by CCTV;
- If the defendant attends the hearing in person, that appropriate measures be taken to prevent the witness and the defendant from directly seeing or hearing each other before, during, or after the hearing.[s 12AB(2)(a)]
The court may also make the following provisions:
- That the witness can be accompanied at the hearing by a relative, friend or other person for the purpose of providing emotional support; and
- Specify that the hearing is convened for any (or all) of the following purposes: examination of the witness; cross-examination of the witness; re-examination of the witness; and
- Provide for any other matter that the court thinks fit.[s 12AB(b)]
There are many more procedural laws around what can and can not be done at a pre-trial special hearing and legal advice should be sought.
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