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Practice Directions |
EVIDENCE BY WAY
OF LIVE TELEVISION LINK
OR VIDEO RECORDED TESTIMONY
1. These procedures cover applications for leave to call evidence by way of—
(a) live television link (under s.79B) where the witness is a chld or mentally handicapped or in fear;
or (b) video recorded testimony (under s.79C) in the case of witnesses who are either chldren or mentally handicapped;
2. Cases involving vulnerable witnesses should be given priority for listing purposes.
3. Hearings to determine applications under s.79B(2), (3) and (4) will take place while the court is sitting in chambers.
4. Where the court grants leave to admit a video recording under s.79C but directs that a part of the recording is to be excluded, the party applying to have the recording admitted is responsible for the editing of the video tape in accordance with the court's directions. The edited copy together with the amended transcript pages should then be supplied to the appropriate officer of the court and to all parties in the proceedings in advance of the trial.
5. On the day of trial, in order to avoid additional stress being suffered by any vulnerable witness, there should be no postponement except in the most exceptional circumstances. All preliminary issues that might otherwise delay the start of the trial should have been dealt with in advance or, alternatively, notified to the parties concerned and to the court, at least seven days before the commencement of trial so that arrangements can be made to obviate vulnerable witnesses coming to court on days or at times when it is unlikely that they will be needed.
6. Whenever a witness as defined in para.1(a) above gives evidence, a court usher will be present to—
(a) operate the closed circuit television (CCTV) in the witness room;(b) explain to the witness what to do and where to sit;
(c) ensure there is no improper communication between the witness and the supporting person (if any);
and (d) supervise in a general way so that the witness is properly looked after
7. Where the witness is a chld or is mentally handicapped, a “support person” may also be present with the permission of the court. That person should not be a witness in the case and should not have been directly involved in the investigation of the case. In the case of a mentally handicapped witness, the “support person” should be someone with some understanding and expertise related to the nature of the handicap. In all cases, the judge must warn the “support person” not to prompt or seek to influence the witness in any way. (See also: R v Chan Wai [1994] 2 HKCLR 75).
8. There should normally be no need for any person other than the witness and the court usher to be inside the CCTV witness room in a case where the witness is in fear.
9. The judge will ensure that—
(a) no intimidating practices are adopted in the course of questioning;(b) no inappropriate language is used having regard to the age and mental capacity of the witness;
and (c) that breaks are offered or given to a witness at regular intervals, if appropriate.
10. Where a defendant is not represented and wishes to ask questions of any vulnerable witness, the judge in his discretion may permit—
(a) the picture to be switched off on the monitor in the CCTV witness room allowing only the defendant's voice to be heard by the witness;or (b) the questions to be channelled through another person (including the judge),
11. The judge will decide whether gowns and/or wigs should be removed while a chld or handicapped person gives evidence.
12. Where a witness who is in fear is to give evidence, it will be the responsibility of the police to arrange for the security of the witness at court and, if special arrangements are to be made which encroach upon the normal working arrangements at court, the appropriate officer of the court must be given advance notice of what it is proposed so that a course of action can be agreed.
13. Where it is believed that the safety and security of the court is itself in jeopardy as a result of the presence of a witness in fear, it will be the responsibility of the police to ensure that no risks are taken.
14. Where special arrangements are made, as shown in paras.(12) and (13) above, the officer of the court will be responsible for keeping the judge informed of the situation.