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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Evidence Amendment Bill 2024
Contents
1. Short title 2
2. Commencement 2
3. Act amended 2
4. Section 223 amended 2
5. Section 228 amended 2
6. Part 7 Division 7A inserted 3
Division 7A -- Witness intermediaries
283A. Terms used 3
283B. Establishment of witness intermediary
service 3
283C. Proceedings for which witness
intermediary service is available 4
283D. General functions of witness intermediary 4
283E. Specific functions in proceedings 5
283F. Assessment of whether witness requires
witness intermediary 6
283G. Witnesses who are eligible for witness
assessment 6
283H. Appointment of witness intermediary in
proceeding 8
283I. Witness who declines witness assessment
or services of witness intermediary 9
7. Section 285 amended 10
8. Section 286 amended 10
9. Section 288 amended 10
10. Section 300 amended 11
11. Sections 367A and 367B inserted 11
367A. Payments to witnesses and others for
eligible service 11
367B. Recovery of amounts payable 14
170--1 page i
Western Australia
LEGISLATIVE ASSEMBLY
Evidence Amendment Bill 2024
A Bill for
An Act to amend the Evidence Act 2024.
The Parliament of Western Australia enacts as follows:
page 1
Evidence Amendment Bill 2024
s. 1
1 1. Short title
2 This is the Evidence Amendment Act 2024.
3 2. Commencement
4 This Act comes into operation as follows --
5 (a) sections 1 and 2 -- on the day on which this Act
6 receives the Royal Assent;
7 (b) the rest of the Act -- on a day fixed by proclamation,
8 and different days may be fixed for different provisions.
9 3. Act amended
10 This Act amends the Evidence Act 2024.
11 4. Section 223 amended
12 After section 223(7) insert:
13
14 (8) A person who is required to attend any place under an
15 assistance order is entitled to any allowances and
16 expenses that the person would be entitled to on
17 attendance as a witness in a proceeding before the
18 Supreme Court.
19
20 5. Section 228 amended
21 (1) In section 228(1) insert in alphabetical order:
22
23 witness assessment has the meaning given in
24 section 283F(1);
25 witness intermediary means a person appointed as a
26 witness intermediary for a witness in a proceeding
27 under section 283H(1).
28
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Evidence Amendment Bill 2024
s. 6
1 (2) In section 228(1) in the definition of visual recording
2 paragraph (b) delete "track." and insert:
3
4 track;
5
6 6. Part 7 Division 7A inserted
7 After Part 7 Division 7 insert:
8
9 Division 7A -- Witness intermediaries
10 283A. Terms used
11 In this Division --
12 accredited witness intermediary means a person who is
13 accredited, in accordance with the regulations, to act as
14 a witness intermediary;
15 witness intermediary service means the witness
16 intermediary service referred to in section 283B.
17 283B. Establishment of witness intermediary service
18 (1) There is to be a witness intermediary service.
19 (2) The witness intermediary service is comprised of
20 persons who are accredited, in accordance with the
21 regulations, to act as witness intermediaries.
22 (3) The regulations may make provision for the
23 establishment of the witness intermediary service,
24 including for or with respect to the following --
25 (a) accreditation as a witness intermediary,
26 including any qualifications, training or
27 experience required and any circumstances that
28 disqualify a person from acting as a witness
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Evidence Amendment Bill 2024
s. 6
1 intermediary (either generally or in a particular
2 case); and
3 (b) ongoing training and assessment of witness
4 intermediaries.
5 283C. Proceedings for which witness intermediary service
6 is available
7 (1) The witness intermediary service is available for the
8 following proceedings --
9 (a) a criminal proceeding;
10 (b) a child protection proceeding;
11 (c) any other civil proceeding in the circumstances
12 (if any) provided for by the regulations.
13 (2) The regulations may provide that the witness
14 intermediary service is available only for a proceeding
15 in a specified area or areas.
16 (3) For the purposes of subsection (2), an area may be
17 specified by reference to --
18 (a) the area in which an offence occurred or is
19 alleged to have occurred; or
20 (b) the area in which a court hears or is to hear a
21 proceeding; or
22 (c) any other matter.
23 283D. General functions of witness intermediary
24 (1) The principal function of a witness intermediary is to
25 facilitate communication to and by a witness for the
26 purpose of ensuring that any evidence given by the
27 witness is as complete, accurate and coherent as
28 possible.
29 (2) A witness intermediary is an officer of the court.
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Evidence Amendment Bill 2024
s. 6
1 (3) As an officer of the court, a witness intermediary has
2 an overriding duty to the court to act honestly and
3 impartially in the exercise of their functions.
4 (4) The regulations may make further provision for the
5 functions of a witness intermediary.
6 283E. Specific functions in proceedings
7 (1) If there is a witness intermediary for a witness in a
8 proceeding, any evidence given by the witness in the
9 proceeding must be given in the presence of the
10 witness intermediary.
11 (2) A failure to comply with subsection (1) does not affect
12 the admissibility of any evidence.
13 (3) The witness intermediary may --
14 (a) make recommendations to the court about how
15 best to communicate with the witness; and
16 (b) intervene in the questioning of the witness
17 where a communication difficulty is identified;
18 and
19 (c) if requested by the judge, communicate and
20 explain --
21 (i) to the witness, questions put to the
22 witness; and
23 (ii) to the court, evidence given by the
24 witness.
25 (4) The witness intermediary must comply with any
26 directions of the court in exercising the witness
27 intermediary's functions.
28 (5) A witness intermediary who exercises functions in a
29 courtroom or in connection with a special procedure
30 for giving evidence must either take an oath, or make
31 an affirmation, in a form directed by the court, that
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Evidence Amendment Bill 2024
s. 6
1 they will exercise their functions as a witness
2 intermediary to the best of their ability.
3 (6) The appointment of a witness intermediary does not
4 prevent a witness --
5 (a) having a support person under section 231
6 while giving evidence; or
7 (b) using a communicator under section 233 to give
8 evidence.
9 283F. Assessment of whether witness requires witness
10 intermediary
11 (1) In any proceeding for which the witness intermediary
12 service is available, the court may request an
13 assessment (a witness assessment) of whether a
14 witness requires the assistance of a witness
15 intermediary to give evidence in the proceeding.
16 (2) A witness assessment must be carried out by an
17 accredited witness intermediary.
18 (3) A court may request a witness assessment --
19 (a) on the application of a party; or
20 (b) on the court's own initiative.
21 (4) The regulations may make further provision for witness
22 assessments.
23 283G. Witnesses who are eligible for witness assessment
24 (1) A court must request a witness assessment in relation
25 to a witness --
26 (a) if the proceeding is a criminal proceeding and
27 the witness is a child (other than the accused)
28 under 10 years of age when the proceeding
29 commences; or
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Evidence Amendment Bill 2024
s. 6
1 (b) if the proceeding is a criminal proceeding for a
2 sexual offence and the witness is a child who is
3 the complainant.
4 (2) Subsection (1)(b) does not apply if the court is satisfied
5 that a witness assessment is not necessary.
6 (3) The court must state its reasons for not requiring a
7 witness assessment in a case referred to in
8 subsection (1)(b).
9 (4) A court may request a witness assessment in relation to
10 a witness not referred to in subsection (1), other than an
11 accused --
12 (a) if the proceeding is a child protection
13 proceeding and the witness is the affected child;
14 or
15 (b) if the witness is a special witness; or
16 (c) if the witness appears to have specific
17 communication needs and to require the
18 assistance of a witness intermediary to give
19 evidence that is as complete, accurate and
20 coherent as possible; or
21 (d) if the court otherwise considers it appropriate.
22 (5) The regulations may specify other circumstances in
23 which the court may request a witness assessment in
24 relation to a witness.
25 (6) The court, when deciding whether to request a witness
26 assessment (other than as required by
27 subsection (1)(a)) --
28 (a) must have regard to the submissions of the
29 parties and to the views of the witness; and
30 (b) may inform itself as it thinks fit.
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s. 6
1 283H. Appointment of witness intermediary in proceeding
2 (1) A court must appoint an accredited witness
3 intermediary as a witness intermediary for a witness in
4 a proceeding if --
5 (a) the witness intermediary service is available for
6 the proceeding; and
7 (b) a witness assessment requested by the court
8 indicates that the witness requires the assistance
9 of a witness intermediary to give evidence in
10 the proceeding; and
11 (c) the court is satisfied, having regard to the
12 witness assessment, that the witness requires
13 the assistance of a witness intermediary to give
14 evidence in the proceeding.
15 (2) Subsection (1) does not apply if the court is satisfied
16 that --
17 (a) there is no witness intermediary available to
18 meet the needs of the witness; or
19 (b) it is otherwise impractical to appoint, or utilise
20 the services of, a witness intermediary.
21 (3) If a witness assessment indicates that a witness who is
22 a child when the assessment is made requires the
23 assistance of a witness intermediary to give evidence in
24 the proceeding, the fact that the witness reaches
25 18 years of age during the proceeding does not affect
26 that assessment.
27 (4) The regulations may make further provision for the
28 appointment of a witness intermediary in a proceeding,
29 including the duration of the appointment.
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s. 6
1 283I. Witness who declines witness assessment or services
2 of witness intermediary
3 (1) Despite any other provision of this Division, a court
4 may decide not to request a witness assessment or to
5 dispense with the services of a witness intermediary if
6 satisfied that the witness has decided to decline the
7 witness assessment or the services of a witness
8 intermediary.
9 (2) The court must be satisfied that --
10 (a) the witness understands their decision and its
11 effect; and
12 (b) the witness's decision was made freely and
13 voluntarily.
14 (3) A witness must not be questioned in a proceeding
15 about a decision to decline a witness assessment or to
16 give evidence without the assistance of a witness
17 intermediary except by or with the approval of the
18 court for the purposes of satisfying this section.
19 (4) In a criminal proceeding before a jury, the judge, the
20 prosecutor, the accused or the accused's legal counsel
21 must not comment to the jury about a decision by a
22 witness to decline a witness assessment or to give
23 evidence without the assistance of a witness
24 intermediary.
25 (5) Subsection (4) does not prevent a judge from directing
26 the jury about a contravention of that subsection by the
27 prosecutor, the accused or the accused's legal counsel
28 if it is in the interests of justice to do so.
29
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Evidence Amendment Bill 2024
s. 7
1 7. Section 285 amended
2 After section 285(2) insert:
3
4 (3) If a court requests a witness assessment for a witness,
5 the court must have regard to that witness assessment
6 in deciding whether to give any communication
7 directions.
8
9 8. Section 286 amended
10 (1) After section 286(3) insert:
11
12 (3A) A court must hold a ground rules hearing in relation to
13 a witness if a witness intermediary has been appointed
14 for the witness, unless subsection (4) applies.
15
16 (2) In section 286(4)(a) delete "parties; and" and insert:
17
18 parties and the witness intermediary (if any) for the witness; and
19
20 9. Section 288 amended
21 (1) In section 288(1):
22 (a) in paragraph (b) delete "proceeding)." and insert:
23
24 proceeding);
25
26 (b) after paragraph (b) insert:
27
28 (c) any witness intermediary for the witness in the
29 proceeding.
30
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Evidence Amendment Bill 2024
s. 10
1 (2) After section 288(2) insert:
2
3 (2A) The court may order that a ground rules hearing be
4 held in the absence of a witness if a witness
5 intermediary has been appointed for the witness.
6
7 10. Section 300 amended
8 In section 300(1):
9 (a) in paragraph (d) delete "witness." and insert:
10
11 witness;
12
13 (b) after paragraph (d) insert:
14
15 (e) request a witness assessment in relation to the
16 witness.
17
18 11. Sections 367A and 367B inserted
19 After section 367 insert:
20
21 367A. Payments to witnesses and others for eligible service
22 (1) In this section --
23 eligible service has the meaning given in
24 subsection (2);
25 inquest has the meaning given in the Coroners
26 Act 1996 section 3;
27 liable person, in respect of a payment for eligible
28 service, means --
29 (a) if the eligible service is in a criminal
30 proceeding and the prosecution was
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s. 11
1 commenced by or on behalf of a local
2 government or a statutory body -- the local
3 government or statutory body; or
4 (b) in any other case -- the State.
5 (2) A person does eligible service if the person is, or
6 attends at any place in order to be, any of the
7 following --
8 (a) a witness who is called by the prosecutor in a
9 criminal proceeding;
10 (b) a witness who is called by the accused in a
11 criminal proceeding and who is a child or a
12 special witness;
13 (c) a witness in an inquest;
14 (d) an interpreter in a criminal proceeding or an
15 inquest;
16 (e) a person approved to provide a witness with
17 support in a proceeding under section 231;
18 (f) a person appointed to act as a communicator in
19 a proceeding under section 233;
20 (g) a person who participates in a program the
21 purpose of which is to prepare the following
22 persons to give evidence in a criminal
23 proceeding or an inquest --
24 (i) a child who may be a witness;
25 (ii) a person who is or may be declared to
26 be a special witness;
27 (h) a person who accompanies and assists another
28 person described in paragraph (g) in order to
29 enable the other person to attend the program
30 described in that paragraph;
31 (i) a person who accompanies and assists another
32 person to attend and be a witness in a criminal
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Evidence Amendment Bill 2024
s. 11
1 proceeding or an inquest, if the other person
2 is --
3 (i) a child who may be a witness;
4 (ii) a person who is or may be declared to
5 be a special witness.
6 (3) A person who does eligible service is entitled to be
7 paid by the liable person any allowances and expenses
8 for doing that eligible service provided for by the
9 regulations.
10 (4) If a person does eligible service during any period in
11 which the person is employed under a contract of
12 service, the employer under the contract of service
13 must pay to the person the earnings that the person
14 could reasonably expect to have been paid under that
15 contract during that period.
16 Penalty for this subsection: a fine of $2 000.
17 (5) Subsection (4) applies even if doing the eligible service
18 causes a breach of contract.
19 (6) An employer who, in accordance with subsection (4),
20 pays a person for a period in which the person does
21 eligible service, is entitled to be paid by the liable
22 person the fees provided for by the regulations for the
23 eligible service.
24 (7) A person who does eligible service is entitled to be
25 paid by the liable person the fees provided for by the
26 regulations for doing that eligible service if --
27 (a) subsection (4) does not apply to the person; or
28 (b) subsection (4) applies to the person but the
29 employer fails to pay the person in accordance
30 with that subsection.
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Evidence Amendment Bill 2024
s. 11
1 (8) The regulations may specify circumstances in which
2 subsections (6) and (7) do not apply.
3 Compare:
4 Evidence Act 1906 s. 119
5 367B. Recovery of amounts payable
6 (1) A claim to a liable person for payment under
7 section 367A must be made and determined in
8 accordance with the regulations.
9 (2) The regulations may require information in support of
10 a claim for payment to be verified by statutory
11 declaration.
12 (3) On the application of an accused who calls a witness in
13 a criminal proceeding, the Minister may authorise the
14 State to pay all or some of the amounts that would be
15 payable under section 367A if the witness were called
16 by the prosecutor in the proceeding.
17 (4) An amount paid under section 367A by the State must
18 be charged to the Consolidated Account, which this
19 subsection appropriates accordingly.
20 Compare:
21 Evidence Act 1906 s. 119
22
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