Under section 13BA of the Evidence Act 1929 (SA), the evidence of vulnerable witnesses in certain criminal proceedings may be admitted in the form of an audio visual record if the recording was made pursuant to:
- section 12AB of the Evidence Act 1929 (SA), as a pre-trial special hearing; or
- Part 17 Division 3 of the Summary Offences Act 1953 (SA), which provides for police to audio visually record interviews of vulnerable witnesses, see Interviewing vulnerable witnesses
and the court is satisfied of the witness’s capacity to give sworn or unsworn evidence at the time of the recording, the other party has been given a reasonable opportunity to view the recording, and the witness is available during the trial, or during the course of the pre-trial special hearing (under s 12AB) for further examination, cross-examination or re-examination. However, this will only be allowed if there is new information that has come to light since the recording was made, the witness gives additional evidence at the trial, , or during the course of the pre-trial special hearing (under s 12AB) apart from the audio visual record or it is otherwise in the interests of justice to allow further examination, cross-examination or re-examination [s 13BA(5)].
If the court admits evidence in the form of an audio visual record, the judge must warn the jury not to draw from the admission of evidence in the form of audio visual record any inference adverse to the defendant, and not to allow the admission of evidence in the form of audio visual record to influence the weight to be given to the evidence [s 13BA(6)(b)].
A vulnerable witness for the purposes of both pre-trial special hearings and police recorded interviews means a child of or under the age of 14 years or a person with a disability that adversely affects the person’s capacity to give a coherent account of their experiences or answer questions rationally [see Evidence Act 1929 (SA) s 12AB(14) and Summary Offences Act 1953 (SA) s 74EA].