Evidence Act 2006

Trial process - Questioning of witnesses

95: Restrictions on cross-examination by parties in person

You could also call this:

"Rules for asking questions in court if you're accused of something"

If you are a defendant in a sexual case or a case about family violence, you cannot ask questions to some witnesses yourself. You cannot ask questions to a complainant or a witness who has made allegations against you. You also cannot ask questions to a child witness unless a Judge says you can.

A Judge can stop you from asking questions to a witness if the witness asks the Judge to do so. The Judge can also stop you if they think it is a good idea. The Judge will think about things like the witness's age, or if they have a disability.

If a Judge stops you from asking questions, you can still ask them through a lawyer. If you do not have a lawyer, the Judge can choose someone to ask the questions for you. The Judge can decide whether to allow each question, change the question, or not allow it.

This rule is more important than what is said in section 11 of the Criminal Procedure Act 2011. When a Judge is making a decision about this, they must think about being fair and making sure the witness is not too stressed. They must also think about anything else that might be important for a fair trial.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM393926.


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94: Cross-examination by party of own witness, or

"Questioning your own witness if they're not helping your case"


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Part 3Trial process
Questioning of witnesses

95Restrictions on cross-examination by parties in person

  1. 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—

  2. a complainant; or
    1. any other witness (for example, a propensity witness) who has made an allegation against that defendant or party (as applicable),—
      1. in a criminal proceeding, of an offence of a sexual nature, or of an offence of family violence or harassment; or
        1. in a civil proceeding, of a sexual nature, or of family violence or harassment; or
        2. a child who is a witness of a kind not described in paragraph (a) or (b), unless the Judge gives permission.
          1. 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.

          2. An order under subsection (2) may be made on 1 or more of the following grounds:

          3. the age or maturity of the witness:
            1. the physical, intellectual, psychological, or psychiatric impairment of the witness:
              1. the linguistic or cultural background or religious beliefs of the witness:
                1. the nature of the proceeding:
                  1. the relationship of the witness to the unrepresented party:
                    1. any other grounds likely to promote the purpose of the Act.
                      1. When considering whether or not to make an order under subsection (2), the Judge must have regard to—

                      2. the need to ensure the fairness of the proceeding and, in a criminal proceeding, that the defendant has a fair trial; and
                        1. the need to minimise the stress on the complainant or witness; and
                          1. any other factor that is relevant to the just determination of the proceeding.
                            1. 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—

                            2. a lawyer engaged by the defendant or the party; or
                              1. 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.
                                1. In respect of each such question, the Judge may—

                                2. allow the question to be put to the witness; or
                                  1. require the question to be put to the witness in a form rephrased by the Judge; or
                                    1. refuse to allow the question to be put to the witness.
                                      1. 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).