L Babb, “What does s 41 of the Evidence Act mean to you as a judicial officer?” paper presented at the Judicial Commission of NSW, Twilight Seminar: Child Sexual Assault, 28 September 2005, Sydney, under the original title “What does s 275A of the Criminal Procedure Act mean to you as a judicial officer?”.

This paper closely examines s 41 of the Evidence Act 1995 on improper questioning. Section 41 has adopted s 275A of the Criminal Procedure Act and applied this section to both civil and criminal proceedings. Section 41 places a positive duty on judicial officers to act to prevent improper questions to help elicit the best evidence given by a witness free from harassment, intimidation or abuse. It outlines that judicial intervention to actively protect witnesses from improper questioning is not inconsistent with the judicial role nor is it an impediment to a fair trial. It is an attempt to create a movement away from the tacit acceptance of improper behaviours that cut across fundamental fair trial principles.