12. Vulnerable Witnesses — Which Regime Applies? (Vic)¶
Scope and currency
Cheat sheet · Criminal Procedure Act 2009 (Vic) Pts 8.2 and 8.2A · CPA consolidated to 1 May 2026
Identify two things first: the witness (age / cognitive impairment / complainant status) and the offence category. Three recorded-evidence regimes, the ground-rules + intermediary layer (Pt 8.2A) and the alternative-arrangements menu (Pt 8.2 Div 4) then slot in — they operate concurrently.
Three recorded-evidence regimes at a glance¶
| VARE — Div 5 (ss 366–368) | FV recorded statement / DREC — Div 7B (ss 387C–387M) | Special hearing — Div 6 (ss 369–377) | |
|---|---|---|---|
| Witness | Under 18 or cognitive impairment at recording | Complainant in an FV-offence proceeding (any age); excluded if the accused was under 18 at the alleged offence | Complainant under 18 or CI when the proceeding commenced (s 369) |
| Proceedings | Sexual offence / FV offence / indictable assault-injury-threat / s 21A(1) stalking — not committals | Summary hearing, committal or trial relating wholly or partly to an FV offence | Trial relating wholly or partly to a sexual / FV / stalking charge |
| Evidence-in-chief | Recording played (s 368) | Recording admissible as direct testimony (s 387F) | Whole of the evidence pre-recorded at the special hearing (s 370); a VARE may sit inside it as the EIC |
| Key conditions | Transcript served ≥14 days before the hearing; reasonable opportunity to view; witness identifies self, attests, and is available for XXN and re-exam (s 368(2)) | s 387G formalities: trained police officer, ASAP after events, audiovisual (audio-only only in exceptional circumstances), informed consent + attestation on the recording; service per s 387H; witness attests in court and is available for XXN | CCTV from a room deemed part of the courtroom; accused sees and hears but is not present and can instruct; jury present if held during trial |
| Once-only? | No — XXN at the hearing | No — XXN at the hearing | Yes — no further XXN or re-exam without leave: newly discovered matter or interests of justice (s 376); recording usable in retrials, appeals, related and civil proceedings (s 374) |
| Non-compliance | Service breach = curable irregularity (interests of justice); attestation failure → inadmissible unless the defence does not object | s 387G breach → inadmissible as EIC; s 387H service breach curable by consent (s 387F(3)); court may edit or delete inadmissible parts | Hearing dispensed with only on prosecution application where the complainant knows the right and wishes to testify directly (s 370(2)) |
DREC = Div 7B, not Div 5
An adult FV complainant's audiovisual "DREC" statement engages Pt 8.2 Div 7B (ss 387C–387M) — not Div 5, which is the child/CI VARE regime. Correct the Div 5 cite carried in the 2024 worked example. Service asymmetry (s 387H): represented accused → audiovisual copy to the practitioner, who must not give the accused a copy; unrepresented → audio copy (or transcript where audio poses an offence risk). No statutory objection window appears in the sources.
Ground rules and intermediaries (Pt 8.2A)¶
GATE A Ground rules hearing (ss 389A–389E)
Does the proceeding relate wholly or partly to a sexual offence, FV offence, s 21A(1) stalking, an indictable offence involving assault / injury / threat of injury, or SOA ss 23–24 (s 389A(1))? Timing: before any hearing at which the witness gives evidence (s 389C(1)); extendable in the interests of justice (s 389C(2)–(3)). Practice: adult non-CI complainant — first day of trial pre-empanelment (County) / morning of the proceeding (Magistrates'); other complainants — listed no later than 7 days before the contest. Directions available (s 389E(2)): manner and duration of questioning; questions that may or may not be put; allocation of topics among co-accused; communication aids (models, plans, body maps). Court informed by the intermediary's written report (s 389I(1)©, (1A)) and the GRH Questionnaire (filed in the County Court; may be directed in the Magistrates' Court). → Mandatory (s 389B(3)): if an intermediary is appointed, or the witness is a complainant on a charge for a sexual offence. → Otherwise: discretionary (s 389B(1)). Any venue of any court.
GATE B Intermediary (ss 389F–389K)
Is the witness (other than the accused) under 18 or cognitively impaired at commencement (s 389F(1))? Program limits: participating venues only — Melbourne legal precinct, Bendigo, Geelong, Warrnambool; unresolved suburban summary sexual matters with a child/CI complainant may transfer to Melbourne. Availability is not offence-restricted (unlike the GRH framework). → Yes: the court may appoint from the panel (s 389J(1)) — never automatic; it must not appoint where the witness knows the right and is able and wishes to proceed without one (s 389J(3)). Panel: tertiary qualification in psychology, social work, speech pathology or occupational therapy (s 389H(2)); disqualified if a relative / friend / acquaintance of witness or accused, prior professional assistance to either, or a party or potential witness (s 389J(4)). Officer of the court, duty of impartiality (s 389I(2)); must be sworn or affirmed before acting (s 389K(4)). → No: no power to appoint; a GRH may still be directed.
Unsworn intermediary — resolved
James (a pseudonym) v The King [2023] VSCA 34 (Emerton P, Kyrou and Kaye JJA): s 389K(4) is not a fundamental requirement of a properly constituted trial such that any breach automatically produces a substantial miscarriage. Consequence determined on Project Blue Sky principles; it turns on the role the intermediary actually performed. Ground 1 failed on limited intervention (the appeal succeeded separately on an unreasonable verdict). The applicant's Subramaniam "cannot be waived" argument was not accepted. Structure the answer as irregularity → materiality → substantial-miscarriage (s 276(1)).
Alternative arrangements (Pt 8.2 Div 4)¶
GATE C Alternative arrangements (ss 359–363)
Does the proceeding relate wholly or partly to a s 359(1) category — a sexual offence; an offence against ss 195N(1) / 195O(1) Crimes Act 1958; an FV offence; s 21A(1) stalking; or SOA ss 17(1) / 19? → Yes: s 360 menu — remote facility / CCTV; screens; support person; specified-persons-only attendance; no robes; counsel seated. Mandatory CCTV / remote facility for a sexual or FV complainant (s 363(1)–(2)) unless the prosecution applies and the court is satisfied the complainant knows the right and is able and wishes to give evidence in the courtroom (s 363(3)). Emotional support person for a sexual offence complainant is a separate mandatory direction (s 365). → No: no power under s 360 — only the court's inherent or implied power to control its own process (Jago v District Court (NSW) [yr?] HCA 46). Example: aggravated carjacking (s 79A) is not a listed category.
Jury directions where an intermediary is used¶
No mandatory statutory direction. Neither the JDA nor the CPA mandates a direction about the presence or role of an intermediary. The CPA's specific mandatory directions on alternative arrangements were repealed by the Jury Directions and Other Acts Amendment Act 2017 (Vic), commencing 1 October 2017. EM cl 13: the arrangements are now commonplace, and a compulsory direction risks the perverse effect of highlighting the arrangement and inviting the jury to treat the evidence as unusual or suspect. Everything below therefore runs through the JDA Pt 3 request framework.
GATE D Was the direction requested? (JDA ss 12–16)
Has counsel requested the intermediary / adaptations direction after the s 11 narrowing of issues? → Requested (s 12): the judge must give it unless there are good reasons not to (s 14(1)), assessed against the evidence and the way the parties conducted their cases (s 14(2)). Identify the direction precisely by JDA section or Charge Book model charge. Movel (a pseudonym) v The King [2024] VSCA 183: refusal upheld as a good-reasons case — the intermediary "didn't look after the witness properly" and the model direction would have operated to "somehow validate what happened". → Not requested (s 15): the judge must not give it — no prudential or own-motion direction. Only escape is the s 16 residual: substantial and compelling reasons, a threshold materially higher than the common law R v Miletic [1997] 1 VR 593 "perceptible risk of miscarriage" test. The omission must be so centrally important that a miscarriage would inevitably follow (e.g. flagrant counsel incompetence): Xypolitos v The Queen [2014] VSCA 339; Gul v The Queen [2017] VSCA 153. Inform the parties and invite submissions first (s 16(2)).
Examiner trap — do not reach for ss 32, 33 or 52 JDA
Where the question is about cross-examination conducted with an intermediary at a special hearing, the unreliable-evidence direction (s 32), the children-as-a-class direction (s 33) and the delay direction (s 52) are not responsive. They address the reliability of the evidence, not the manner in which it was obtained. An answer built on those sections will be marked as non-responsive. The direction sought is the intermediary / adaptations direction (CCB 3.14.1), requested under s 12.
What the direction must actually say — three limbs¶
Special hearing, intermediary, pre-recorded cross-examination:
(1) Role — explain who the intermediary is and what they did: an independent person present to assist the court by advising on how the witness should be questioned; sworn or affirmed before acting (s 389K(4)).
(2) Adaptations — explain that questions were shortened, simplified and reformulated, and that ground rules were set at a hearing beforehand, so that the witness could understand what was being asked; any interruptions by the intermediary were necessary as a matter of fairness. Add that cross-examination of a child or cognitively impaired witness cannot necessarily be conducted as robustly as cross-examination of an adult.
(3) The anti-inference limb — do not omit it — the jury must not infer from the less confrontational style of cross-examination that the allegations were not fully challenged or were not strenuously denied. Charge Book wording: "you must not form the view that because a less confrontational approach was taken in the cross examination of [the witness], that the allegations are any less challenged or less strenuously denied."
The model charges — Criminal Charge Book¶
| Charge Book | When given | What the jury is told |
|---|---|---|
| 3.14.1 Explaining Intermediaries and Adaptations | Final charge (Ch 3) | The intermediary took an oath or affirmation before the witness gave evidence; the intermediary "is an independent person who was here to assist the court by providing advice on how [the witness] should be questioned"; the witness's language skills are not as developed, so the role was to ensure questions used language the witness could understand; at an earlier hearing the judge, intermediary and counsel discussed how questions would be put; any interruptions (rephrasing, checking understanding, breaks) were necessary as a matter of fairness; cross-examination cannot proceed in the same robust manner as for an adult. Operative caution: "you must not form the view that because a less confrontational approach was taken in the cross examination of [the witness], that the allegations are any less challenged or less strenuously denied." |
| 3.14.2 Adaptations at Ground Rules Hearings | Final charge (Ch 3) | For a GRH case with no intermediary at trial: the witness was questioned differently — simpler, more direct questions — because their language skills are not as developed; counsel adapted questioning to prevent the witness becoming tired, stressed or confused and giving answers they did not mean; despite the different style and tone, the defence still disputes the evidence; the parties' cases are then outlined and the jury reminded it decides what evidence it accepts. |
| 2.3.1.1 Alternative Arrangements | First time an arrangement is used | "As a matter of law, you must not draw any inference adverse to the accused from the fact that these arrangements have been made, and you must not give [the witness's] evidence any greater or lesser weight because of the use of these arrangements. You must treat his/her evidence in exactly the same way that you treat the evidence of any other witness in these proceedings." |
| 2.3.1.2 Alternative Arrangements (short charge) | Subsequent witnesses | "I remind you that they are a routine practice and you must not draw any inference adverse to the accused or give [the witness's] evidence any greater or lesser weight because of the use of these arrangements." |
| 2.3.3.1 Playing a VARE | Before the next witness gives evidence | The recording is the witness's evidence-in-chief and is part of their evidence; the witness will confirm its truth and be cross-examined live. Shaded add-on where the live XXN is remote: the witness will not be present in the courtroom and will give evidence by CCTV / behind a screen. |
| 2.3.4.1 Witness Support Dog | At or immediately after the evidence | A support dog may sit with the witness; no adverse inference is to be drawn from the practice. Note the categories are distinct: an emotional support person (ss 360, 365) or support dog manages distress; the intermediary assists communication. |
Timing and mechanics¶
• In running (s 10(2)): a direction may be given at any time before the close of evidence where necessary to ensure a fair trial, after inviting submissions (s 10(3)).
• Arrangements directions: 2.3.1.1 at the first use, 2.3.1.2 for each later witness, 2.3.3.1 before the VARE is played — contemporaneous, not deferred to the charge.
• Intermediary directions: 3.14.1 and 3.14.2 sit in Ch 3 and are given in the final charge, after evidence and addresses, to insulate deliberations from misreading the non-confrontational questioning style.
• Draft the request: a s 12 request should name the model charge and, where forensic disadvantage from delay is also live, pair it with the s 39 JDA direction.
Recorded evidence in the jury room — Movel (a pseudonym) v The King [2024] VSCA 183
Priest, Niall and Orr JJA: giving the jury unrestricted access to the complainant's VARE and the recording of the special hearing during deliberations was a serious procedural error. A criminal trial is an oral process; recorded evidence must not be elevated above evidence given live, and repeated viewing creates an extreme risk of undue weight and credibility bolstering (BAH; Lewis; Lyne). If the jury asks to review the recording, discuss the request with counsel, reconvene, and replay only the requested portions in open court under judicial supervision with appropriate warnings. Playing the tape in the jury room is forbidden.
Watch the formulation
The Charge Book does not describe the intermediary to the jury as an "officer of the court", and there is no model warning that the intermediary is not a supporter or advocate. "Officer of the court" is the s 389I(2) statutory status, not the jury-facing words. The charge uses "an independent person who was here to assist the court"; role separation is achieved by keeping the emotional support person / support dog in a distinct category. Use the statutory phrase for the judge and the Charge Book phrase for the jury.
Currency watch¶
• 1 October 2017 — Jury Directions and Other Acts Amendment Act 2017 (Vic): CPA mandatory directions on alternative arrangements repealed; title confirmed (supersedes the "Other Acts" / "Other Matters" ambiguity).
• 28 December 2025 — Act No. 5/2025: s 369(1) substituted (s 20); s 371A amended (s 22); s 353(1) substituted (s 39); s 363(2) amended (s 41); s 389A(1)(b) substituted.
• 2026 — Act No. 1/2026: stalking added to the GRH framework (s 389A(1)(ba), (1)(d)); s 389E(3) inserted (text not in sources); intermediary functions expanded (s 389I(1)©–(d), (1A)–(1B)); s 387E(2) amended (s 81); s 374(2)(b) note amended (s 77); s 353(1) further amended (s 72).
• 2024 — Act No. 31/2024 s 11: s 387P repealed.
• Consolidation — CPA to 1 May 2026; Charge Book to 20 March 2026; all of the above operative at those dates.