Vulnerable witnesses and managing the courtroom

Vulnerable witnesses and managing the courtroom

Victims of family violence are often traumatised and vulnerable witnesses. To ensure parties are afforded fair and equal access to justice and those at risk of harm are not re–traumatised by the court process, it is essential that judicial officers and practitioners utilise the courts powers to achieve a fair hearing.¹⁷

In addition to the courts general powers to regulate its own processes, courts exercising jurisdiction under the FLA:

1. May direct or allow a person to give testimony and/or appear by video or audio link (for example from another location or in the same court facility). [Sections 102C–102D FLA]
2. Must forbid the asking of offensive, abusive and hectoring questions unless it is essential to the interests of justice. [Section 101(1) and (2) FLA]
3. May disallow questions asked in a manner or tone that is inappropriate or based on stereotype. [Section 41 Evidence Act 1995 (Cth)]
4. Disallow misleading or confusing questions. [Section 41 Evidence Act 1995 (Cth)]
5. A child cannot be called as a witness or be present in court unless the Court makes an order to the contrary. [Section 100B(2) FLA]
6. May change the venue of a hearing to a safer location. [Section 27A FLA, Section 52 FCCA, Rule 11.17 FLR, Rule 8.01 FCCR)]

In child related proceedings:

7. The Court is to actively direct, control and manage the conduct of proceedings and is to conduct proceedings in a way that will safeguard parties to proceedings against family violence. [Section 69ZN FLA]
8. The Court can give directions or make orders about how particular evidence is to be given. [Section 69ZX(1)(c) FLA]
9. Make orders limiting, or not allowing, cross-examination of a particular witness. [Section 69ZX(2)(i) FLA]
10. Receive into evidence the transcript of evidence in any other proceedings before the court or another court or tribunal, and draw from that transcript any conclusions of fact that it thinks proper, and adopt any of the recommendations, findings, decisions or judgment of those bodies. [Section 69ZX(3) FLA]

In the exercise of its general powers to control proceedings the Court may:

11. Require that an alleged perpetrator be shielded from view while the victim is giving evidence.
12. Allow the victim can have a support person near them while giving evidence.
13. Close the Court to the public or exclude specific persons from the courtroom.
14. With forewarning refuse permission to continue cross-examination.
15. With forewarning determine the proceedings be concluded without further input from a party.

Judicial officers should also consider the possible impact of family violence on the victim’s ability to give evidence. For example, coping strategies to deal with the violence and memories may mean that a victim has:

• difficulty giving testimony about the violence in a linear, time-ordered sequence
• difficulty recalling collateral detail surrounding the violence
• emotional detachment such that testimony can be given in an unemotional, flat, detached manner
• inability or difficulty offering complete information about abuse and violence (by virtue of the tendency to minimise memories), and
• exaggerated startled and defence responses resembling anger, hostility and aggression.¹⁸

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