CHAPTER 28
CONDUCT OF PROCEEDINGS

Special arrangements for vulnerable witnesses

189. (1) In this section “vulnerable witness” means a person other than an accused -

(a) who is under the age of 18 years ; or
(b) against whom an offence of a sexual or indecent nature or a domestic violence offence has been committed ; or
(c) who as a result of some mental or physical disability, the possibility of intimidation by the accused or any other person, or for any other reason will suffer undue stress while giving evidence, or who as a result of such disability, possibility or other reason will be unable to give complete and undistorted evidence.

(2) A court before which a vulnerable witness gives evidence in criminal proceedings may, of its own motion or on the application of the prosecutor, the accused or that witness, order that special arrangements be made for the giving of the evidence of that witness.

(3) Special arrangements under subsection (2) may consist of one or more of the following steps :

(a) The issuing, subject to section 175 and notwithstanding section 180(2), of a direction that the vulnerable witness gives his or her evidence -

(i) at any place, whether within or outside the courtroom -
(aa) which is informally arranged to set that witness at ease ;
(bb) which is so situated that any person whose presence may upset that witness, is outside the sight of that witness ; and
(cc) which enables the court and any person whose presence is necessary at the proceedings in question to see and hear, either directly or through the medium of closed circuit television or similar electronic media or a one-way mirror or otherwise, that witness during his or her testimony and, if the witness is accompanied by a support person, to also see and hear the support person in like manner ; or
(ii) behind a screen in the courtroom in the same manner and subject to the same requirements prescribed in item (cc) of subparagraph (i) ;

(b) the rearrangement of the furniture in the courtroom, or the removal from or addition to the courtroom of certain furniture or objects, to set the vulnerable witness at ease, or the issuing of a direction that any person whose presence may upset that witness sits or stands at a certain location in the courtroom ;

(c) notwithstanding section 175, the granting of permission to a person (in this section referred to as a support person) who is a fit person for that purpose to accompany the vulnerable witness while he or she is giving evidence ;

(d) the adjournment under section 191 of the proceedings in question to any place other than the one where the court is sitting to hear the evidence of the vulnerable witness ;

(e) the taking of any other steps that in the opinion of the court are expedient and desirable to facilitate the giving of evidence by the vulnerable witness.

(4) The support person is entitled to -

(a) sit or stand near the vulnerable witness and to give such physical comfort to that witness as may be desirable ;
(b) interrupt the proceedings to alert the presiding judge or magistrate to the fact that the vulnerable witness is experiencing undue distress,
but, subject to subsection (5), the support person is not entitled to assist that witness with the answering of a question or to instruct that witness in the giving of evidence.

(5) The court may give directions to the support person prohibiting the support person from communicating with the vulnerable witness or from taking certain actions, or may direct the support person to take such actions as the court may consider desirable.

(6) When considering whether an order under subsection (2) should be made, the court must take into account the following matters :

(a) The interests of the State in adducing the complete and undistorted evidence of the vulnerable witness concerned ;
(b) the interests and well-being of the vulnerable witness concerned ;
(c) the availability of necessary equipment and facilities ;
(d) the interests of justice in general.

CHAPTER 29
WITNESSES

Protection of witness

208. (1) (a) When a person is in the opinion of the Prosecutor-General likely to give evidence on behalf of the State at criminal proceedings in any court, and the Prosecutor-General, from information placed before him or her by any person -

(i) is of the opinion that the personal safety of the person who is likely to give such evidence is in danger or that he or she may be prevented from giving evidence or that he or she may be intimidated ; or
(ii) considers it to be in the interests of the person who is likely to give such evidence or of the administration of justice that that person be placed under protection,
the Prosecutor-General may by way of affidavit place such information before a judge in chambers and apply to that judge for an order that the person who is likely to give such evidence be placed under protection pending the proceedings in question.

(b) The Prosecutor-General may, in any case in which he or she is of the opinion that the object of obtaining an order under paragraph (a) may be defeated if the person concerned is not placed under protection without delay, direct that that person be placed under protection immediately, but such a direction does not endure for longer than 72 hours unless the Prosecutor-General within that time by way of affidavit places before a judge in chambers the information on which he or she ordered the placement under protection of the person concerned and such further information as might become available to the Prosecutor-General, and applies to that judge for an order that that person be placed under protection pending the proceedings in question.

(c) The Prosecutor-General must, as soon as he or she applies to a judge under paragraph (b) for an order for the placement under protection of the person concerned, in writing inform the person in charge of the place where the person concerned is being protected, that he or she has so applied for an order, and must, where the judge under subsection (2)(a) refuses to issue an order for the placement under protection of the person concerned, immediately inform the person so in charge of the refusal, whereupon the person so in charge must without delay discontinue the protection of the person concerned.

(2) (a) The judge hearing an application under subsection (1) may, if it appears to the judge from the information placed before him or her by the Prosecutor-General -

(i) that there is a danger that the personal safety of the person concerned may be threatened or that he or she may be prevented from giving evidence or that he or she may be intimidated; or
(ii) that it would be in the interests of the person concerned or of the administration of justice that that person be placed under protection,
issue an order for the placement under protection of that person.

(b) Where a judge refuses an application under paragraph (a) and further information becomes available to the Prosecutor-General concerning the person in respect of whom the application was refused, the Prosecutor-General may again apply under subsection (1)(a) for the placement under protection of that person.

(3) A person in respect of whom an order is issued under subsection (2)(a), must be taken to the place mentioned in the order and, in accordance with regulations which the Minister is hereby authorized to make, be protected there or at any other place determined by a judge from time to time, or, where the person concerned is placed under protection in terms of a direction by the Prosecutor-General under subsection (1)(b), that person must, pending the decision of the judge under subsection (2)(a), be taken to a place determined by the Prosecutor-General and protected there in accordance with those regulations.

(4) A person placed under protection in terms of an order under subsection (2)(a) must be protected for the period terminating on the day on which the criminal proceedings in question are concluded, unless -

(a) the Prosecutor-General directs that the protection of that person be discontinued earlier ; or
(b) such proceedings have not commenced within six months of the date of the placement under protection of that person, in which event the protection of that person must be discontinued after the expiration of that period.

(5) No person, other than a person employed in the Public Service acting in the performance of his or her official duties and the legal practitioner of a person placed under protection in terms of an order under subsection (2)(a), has access to the person so placed under protection, except with the consent of and subject to the conditions determined by the Prosecutor-General or a person employed in the Public Service delegated by the Prosecutor-General.

(6) For the purposes of section 214, a person placed under protection in terms of an order under subsection (2)(a) is deemed to have attended the criminal proceedings in question as a witness for the State during the whole of the period of his or her placement under protection.

(7) No information relating to the proceedings under subsection (1) or (2) may be published or be made public in any manner whatever.

(8) To the extent that this section authorizes the deprivation of the personal liberty of a person who is likely to give evidence at criminal proceedings, such deprivation is authorized only on the grounds of the procedures established under this section pursuant to Article 7 of the Namibian Constitution.

Substitution of section 185 of Act No. 51 of 1977

9. The following section is substituted for section 185 of the principal Act :

“Protection of witness

185. (1) (a) When a person is in the opinion of the Prosecutor-General likely to give evidence on behalf of the State at criminal proceedings in any court, and the Prosecutor-General, from information placed before him or her by any person -

(i) is of the opinion that the personal safety of the person who is likely to give such evidence is in danger or that he or she may be prevented from giving evidence or that he or she may be intimidated ; or
(ii) considers it to be in the interests of the person who is likely to give such evidence or of the administration of justice that that person be placed under protection,
the Prosecutor-General may by way of affidavit place such information before a judge in chambers and apply to that judge for an order that the person who is likely to give such evidence be placed under protection pending the proceedings in question.

(b) The Prosecutor-General may, in any case in which he or she is of the opinion that the object of obtaining an order under paragraph (a) may be defeated if the person concerned is not placed under protection without delay, direct that that person be placed under protection immediately, but such a direction shall not endure for longer than 72 hours unless the Prosecutor-General within that time by way of affidavit places before a judge in chambers the information on which he or she ordered the placement under protection of the person concerned and such further information as might become available to the Prosecutor-General, and applies to that judge for an order that that person be placed under protection pending the proceedings in question.

(c) The Prosecutor-General shall, as soon as he or she applies to a judge under paragraph (b) for an order for the placement under protection of the person concerned, in writing inform the person in charge of the place where the person concerned is being protected, that he or she has so applied for an order, and shall, where the judge under subsection (2)(a) refuses to issue an order for the placement under protection of the person concerned, immediately inform the person so in charge of the refusal, whereupon the person so in charge shall without delay discontinue the protection of the person concerned.

(2) (a) The judge hearing an application under subsection (1) may, if it appears to the judge from the information placed before him or her by the Prosecutor-General -

(i) that there is a danger that the personal safety of the person concerned may be threatened or that he or she may be prevented from giving evidence or that he or she may be intimidated ; or
(ii) that it would be in the interests of the person concerned or of the administration of justice that that person be placed under protection,

(b) Where a judge refuses an application under paragraph (a) and further information becomes available to the Prosecutor-General concerning the person in respect of whom the application was refused, the Prosecutor-General may again apply under subsection (1)(a) for the placement under protection of that person.

(3) A person in respect of whom an order is issued under subsection (2)(a), shall be taken to the place mentioned in the order and, in accordance with regulations which the Minister is hereby authorized to make, be protected there or at any other place determined by a judge from time to time, or, where the person concerned is placed under protection in terms of a direction by the Prosecutor-General under subsection (1)(b), that person shall, pending the decision of the judge under subsection (2)(a), be taken to a place determined by the Prosecutor-General and protected there in accordance with those regulations.

(4) A person placed under protection in terms of an order under subsection (2)(a) shall be protected for the period terminating on the day on which the criminal proceedings in question are concluded, unless -

(a) the Prosecutor-General directs that the protection of that person be discontinued earlier ; or
(b) such proceedings have not commenced within six months of the date of the placement under protection of that person, in which event the protection of that person shall be discontinued after the expiration of that period.

(5) No person, other than a person employed in the Public Service acting in the performance of his or her official duties and the legal practitioner of a person placed under protection in terms of an order under subsection (2) (a), shall have access to the person so placed under protection, except with the consent of and subject to the conditions determined by the Prosecutor-General or a person employed in the Public Service delegated by the Prosecutor-General.

(6) For the purposes of section 191, a person placed under protection in terms of an order under subsection (2)(a) shall be deemed to have attended the criminal proceedings in question as a witness for the State during the whole of the period of his or her placement under protection.

(7) No information relating to the proceedings under subsection (1) or (2) shall be published or be made public in any manner whatever.

(8) To the extent that this section authorizes the deprivation of the personal liberty of a person who is likely to give evidence at criminal proceedings such deprivation is authorized only on the grounds of the procedures established under this section pursuant to Article 7 of the Namibian Constitution.”