Special Bulletin 14 — September 2005

This Bulletin has been archived because it has been superseded and/or incorporated in the relevant section of the Bench Book

Improper questions put to a witness in cross-examination

 

The Criminal Procedure Further Amendment (Evidence) Act 2005 amended the Criminal Procedure Act 1986 to give greater protection to witnesses against improper questions in cross-examination. In criminal proceedings, s 41 of the Evidence Act 1995 no longer applies, but s 275A of the Criminal Procedure Act 1986 does.

Section 275A commenced on 12 August 2005 (Gazette No 102 of 12 August 2005, p 4309). It provides, in essence, that a court must disallow a question put to a witness in cross-examination or inform the witness that the question need not be answered if the question is misleading or confusing, unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, or put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate, or has no basis other than a sexist, racist, cultural or ethnic stereotype (s 275A(1)).

Without limiting the matters that the court may take into account for the purposes of s 275A(1), it must take into account:

(a) 

any relevant condition or characteristic of the witness, including age, education, ethnic and cultural background, language background and skills, level of maturity, and understanding and personality; and

(b) 

any mental, intellectual or physical disability to which the witness is or appears to be subject.

The duty imposed on the court applies whether or not there has been an objection to the question (s 275A(5)).

Note: Section 275A of the Criminal Procedure Act 1986 applies to all criminal matters and not just to sexual assault matters.