When can a witness give evidence by CCTV, instead of live in the courtroom?

In Western Australia, and all around Australia, courts permit witnesses to give evidence by means of a “video link”. This means a witness gives evidence from another location, and their evidence is displayed, live, in the courtroom on multiple large monitors. A standard judicial direction is that evidence given by means of a video link is not to be considered any differently from live evidence given inside the courtroom.

This practice is becoming more and more frequent, particularly with the COVID-19 pandemic. In many cases, witnesses have found themselves stuck in inter-state locations and unable to return to WA to testify at a scheduled trial.

There are various situations in which the court may permit a witness to give evidence by video link. There are also situations in which it is mandatory, outlined below.

Video link: any witness

Any witness may give evidence by means of a video link if an application is approved by the court. The only requirements are that the video link order is “in the interests of justice”, and a video link must actually be available from the location the witness is in. There are also rules in some courts about the quality of video links, and certain locations may not be approved for a video link. This would mean that a different location for the video link would have to be found or the witness may have to arrange to attend the trial in person.

In practice, video links are often allowed in the following situations:

  • Non-contentious witnesses who would have to travel long distances to give evidence of minimal significance;
  • Witnesses who are overseas;
  • Expert witnesses who live outside the metropolitan area; &
  • Witnesses who are stuck inter-state due to, Eg, the COVID-19 pandemic.

Civilian witnesses may also give evidence via video link in some situations.

Defence witnesses can also give evidence via video link, but you should get advice as to whether that is appropriate for your case.

Video link: sexual offences

In a sexual offence case involving a child complainant, it is mandatory for the child complainant to give evidence via video link from outside the courtroom. Further, in child sexual offence cases, evidence is normally pre-recorded. That means the entirety of the child’s evidence is recorded at a hearing¬†well in advance of the trial. The recorded hearing is then played at the trial. This saves the child complainant from having to wait potentially years to give their evidence.

For adult sexual offence cases, in a ‘serious sexual offence’ case, it is mandatory for an adult complainant to give evidence via video link from outside the courtroom. What is a ‘serious sexual offence’ is defined in the Evidence Act and encompasses a wide variety of sexual offences.

Even if it is not a ‘serious sexual offence’ case, or the video link doesn’t concern the complainant, if an adult witness meets the requirements to be a “special witness”, it is also mandatory the witness gives evidence via video link. A “special witness” is someone who, because of a variety of factors, will not be able to give evidence satisfactorily if present in the court-room. This can encompass either the complainant or some other witness. So in some cases you can have¬† many, if not all, of the State witnesses giving evidence via video link.

The use of video links and pre-recordings of evidence in sexual offence cases is controversial, and there is an argument that they are over-used in Western Australia. The result of mandatory video links is the complainant (or other witness) gets the advantage of giving their evidence well in advance of the trial, and also without having to give evidence in open court. Yet the accused has to give their evidence in open court, sometimes in the presence of the complainant and their supporters, and sometimes years after the complainant has given their pre-recorded evidence.

Conclusion

In various cases, witnesses can give evidence by video link. In sexual offence cases, video links are often mandatory, or applications may be made by the State for video links for crucial witnesses such as the complainant or eye witnesses. Video links can potentially have an impact on the outcome of your case. For expert advice about the use of video links in your particular case, please contact us today.

 

 

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