Part 3Trial process
Questioning of witnesses
95Restrictions on cross-examination by parties in person
A defendant in or a party to a sexual case, or a defendant in or a party to a criminal or civil proceeding concerning family violence or harassment, is not entitled to personally cross-examine—
- a complainant; or
- any other witness (for example, a propensity witness) who has made an allegation against that defendant or party (as applicable),—
- in a criminal proceeding, of an offence of a sexual nature, or of an offence of family violence or harassment; or
- in a civil proceeding, of a sexual nature, or of family violence or harassment; or
- in a criminal proceeding, of an offence of a sexual nature, or of an offence of family violence or harassment; or
- a child who is a witness of a kind not described in paragraph (a) or (b), unless the Judge gives permission.
In a civil or criminal proceeding, a Judge may, on the application of a witness, or a party calling a witness, or on the Judge’s own initiative, order that a party to the proceeding must not personally cross-examine the witness.
An order under subsection (2) may be made on 1 or more of the following grounds:
- the age or maturity of the witness:
- the physical, intellectual, psychological, or psychiatric impairment of the witness:
- the linguistic or cultural background or religious beliefs of the witness:
- the nature of the proceeding:
- the relationship of the witness to the unrepresented party:
- any other grounds likely to promote the purpose of the Act.
When considering whether or not to make an order under subsection (2), the Judge must have regard to—
- the need to ensure the fairness of the proceeding and, in a criminal proceeding, that the defendant has a fair trial; and
- the need to minimise the stress on the complainant or witness; and
- any other factor that is relevant to the just determination of the proceeding.
A defendant in or party to a proceeding who, under this section, is precluded from personally cross-examining a witness may have that defendant’s or party’s questions put to the witness by—
- a lawyer engaged by the defendant or the party; or
- if the defendant or the party is unrepresented and fails or refuses to engage a lawyer for the purpose within a reasonable time specified by the Judge, a person appointed by the Judge for the purpose.
In respect of each such question, the Judge may—
- allow the question to be put to the witness; or
- require the question to be put to the witness in a form rephrased by the Judge; or
- refuse to allow the question to be put to the witness.
Subsection (1) overrides section 11 of the Criminal Procedure Act 2011.
Notes
- Section 95(1): replaced, on , by section 10(1) of the Sexual Violence Legislation Act 2021 (2021 No 60).
- Section 95(5): amended, on , by section 10(2)(a) of the Sexual Violence Legislation Act 2021 (2021 No 60).
- Section 95(5): amended, on , by section 10(2)(b) of the Sexual Violence Legislation Act 2021 (2021 No 60).
- Section 95(5)(a): amended, on , by section 10(3) of the Sexual Violence Legislation Act 2021 (2021 No 60).
- Section 95(5)(b): amended, on , by section 10(3) of the Sexual Violence Legislation Act 2021 (2021 No 60).
- Section 95(7): amended, on , by section 5 of the Evidence Amendment Act 2011 (2011 No 89).