What does s 41 of the Evidence Act mean to you as a judicial officer?

What does s 41 of the Evidence Act mean to you as a judicial officer?^*

Director, Criminal Law Review Division

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.

[1]

Judges play an important role in protecting complainants from unnecessary, inappropriate and irrelevant questioning by or on behalf of an accused. That role is perfectly consistent with the requirements of a fair trial, which requirements do not involve treating the criminal justice system as if it were a forensic game in which every accused is entitled to some kind of sporting chance: per Spigelman CJ in R v TA (2003) 57 NSWLR 444 at 446.

Section 41 — improper questions

(1)

The court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a disallowable question):

(a)

is misleading or confusing, or

(b)

is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, or

(c)

is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate, or

(d)

has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture or ethnicity, age or mental, intellectual or physical disability.

(2)

Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account:

(a)

any relevant condition or characteristic of the witness of which the court is, or is made, aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality, and

(b)

any mental, intellectual or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject, and

(c)

the context in which the question is put, including:

(i)

the nature of the proceeding, and

(ii)

in a criminal proceeding — the nature of the offence to which the proceeding relates, and

(iii)

the relationship (if any) between the witness and any other party to the proceeding.

(3)

A question is not a disallowable question merely because:

(a)

the question challenges the truthfulness of the witness or the consistency or accuracy of any statements made by the witness, or

(b)

the question requires the witness to discuss a subject that could be considered to be distasteful to, or private by, the witness.

(4)

A party may object to a question put to a witness on the ground that it is a disallowable question.

(5)

However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question.

(6)

A failure by the court to disallow a question under this section, or to inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question.

Note:

A person must not, without the express permission of a court, print or publish any question that the court has disallowed under this section — see s 195.

Introduction

[2]Section 41 of the Evidence Act 1995 (which commenced on 1 January 2009) adopts, with some modification, s 275A of the Criminal Procedure Act (now repealed) and applies it to both civil and criminal proceedings. Note that s 275A continues to apply to proceedings the hearing of which began before the commencement of the new s 41.¹ When s 275A was inserted into the Criminal Procedure Act 1986 by the Criminal Procedure Further Amendment (Evidence) Act 2005, the Attorney General stated in the second reading speech that the section:

… sets a new standard for the cross-examination of witnesses in criminal proceedings, including, by referring, for the first time, to the manner or tone in which a question is asked … This amendment places a positive duty on judges to act to prevent improper questions, thereby ensuring that witnesses are able to give their evidence free from intimidation and fear.²

[3]In addition to the prohibition on improper questions, this Act amended the Criminal Procedure Act 1986:

(a): to prevent the circulation, and the unauthorised copying, of sensitive evidence: ss 281A–281F
(b): to require any part of proceedings for a sexual offence in which evidence is given by the complainant to be held in camera: ss 291–291C
(c): to confer an entitlement on a complainant in such a case to have one or more persons present near the complainant when giving evidence: s 294C
(d): to simplify and standardise the coverage of various provisions of the Act that relate to the protection of a complainant in sexual offence proceedings, and
(e): to make it clear that a complainant in a sexual offence proceeding is entitled to give evidence by use of arrangements to restrict contact between the complainant and the accused person, instead of by the use of closed-circuit television, whether or not closed-circuit television facilities are available in the proceedings: s 294B.

[4]New s 41 imposes a duty on a court to disallow improper questions that are put to witnesses in cross-examination. The duty arises if the court is of the opinion that the question is disallowable (see below).

The circumstances in which the court is required to disallow questions put to a witness in cross-examination or inform the witness that the question need not be answered

Proceedings to which the section applies

[5]New s 41 of the Evidence Act applies to all civil and criminal proceedings.

Who does it apply to?

[6]The provision applies to all witnesses equally in cross-examination.

What is a disallowable question?

(a): misleading or confusing
(b): unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive
(c): put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate
(d): has no basis other than a stereotype based on sex, race, culture, ethnicity, age or mental, intellectual or physical disability.

[7]However, a question is not disallowable merely because it:

challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness, or
requires the witness to discuss a subject that could be considered to be distasteful or private.

Objections by the parties

[8]While the section allows any party to the proceedings to object to a question put to a witness on the ground that it is a disallowable question, the duty imposed on the court applies whether or not any objection is raised.

Effect of the court’s failure to invoke the section

[9]An important feature of the provision is that a failure by the court to disallow a question under the section, or inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question. This amendment therefore does not open a new avenue of appeal points for accused persons, a view noted by the Australian Law Reform Commission (ALRC) and the New South Wales Law Reform Commission (NSWLRC) in the Final Report into the Uniform Evidence Law at 5.115.³

The factors the court should take into account in determining whether to disallow a question

[10]Without limiting the matters that the court may take into account in determining whether to disallow a question, the section requires the court to take into account:

(a)

any relevant condition or characteristic of the witness of which the court is, or is made, aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality, and

(b)

any mental, intellectual or physical disability of which the court is, or is made, aware and to which the witness is or appears to be subject, and

(c)

the context in which the question is put, including:

(i): the nature of the proceeding, and
(ii): in a criminal proceeding — the nature of the offence to which the proceeding relates, and
(iii): the relationship (if any) between the witness and any other party to the proceeding.

[11]These criteria replicate those in the former s 275A with the addition of having to consider the context in which the question is put listed in s 41(2)(c).

History of the amendments

Section 41 of the Evidence Act 1995

[12]The former version of s 41 in the uniform Evidence Acts granted the court the power to disallow improper questions asked in cross-examination as follows:

(1)

The court may disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the question is:

(a)

misleading, or

(b)

unduly annoying, harassing, intimidating, offensive, oppressive or repetitive.

(2)

Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account:

(a)

any relevant condition or characteristic of the witness, including age, personality and education, and

(b)

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

[13]This section was introduced following an inquiry by the Australian Law Reform Commission (ALRC) into the law of evidence, with the ALRC intending for the section to bring together and clarify common law and legislative provisions that set limits on cross-examination:

The proposals provide for the judge to disallow the question, or to inform the witness that he need not answer but may if he wants to do so. In this way the judge can prevent a slanging match developing, or let the witness answer the question nonetheless.⁴

The inadequacy of former s 41 to protect witnesses from improper questions

[14]In its report on Sexual Offences,⁵ the Victorian Law Reform Commission (VLRC) concluded that former s 41 was insufficient to ensure that child witnesses were protected against inappropriate questions. The VLRC supported a recommendation of the Queensland Law Reform Commission (QLRC)⁶ that included, as well as the considerations in s 41, consideration of the content, manner and language of questioning, and the culture and level of understanding of the child. (It is important here to note that the QLRC acknowledged that the recommendation may be equally applicable to adult witnesses.)⁷

[15]The VLRC recommended that there be a duty on the court to ensure, as far as possible, that in the case of questions asked of children under 18 years of age:

neither the content of a question nor the manner in which a question is asked is misleading or confusing, phrased in inappropriate language or unduly annoying, harassing, intimidating, offensive, oppressive or repetitive, and
the questions are not structured or sequenced in a way that is intimidating, harassing, confusing, annoying or misleading
in deciding whether to disallow a question, the court is to take into account any relevant condition or characteristic of the witness, including age, culture, personality, education and level of understanding and any mental, intellectual or physical disability of the witness.

[16]The VLRC was not the first to recognise the shortcomings of s 41 in providing adequate protection for witnesses. In 1996, the Heroines of Fortitude report⁸ called for greater utilisation by judges of the Evidence Act provisions to limit questions that are insulting, degrading, humiliating or irrelevant during cross-examination.

[17]The report concluded at p 180 that “… on the whole judicial officers and prosecutors are reluctant to limit irrelevant and inappropriate cross-examination even when it is clear the complainant is suffering distress. In this way judges may well be sanctioning the revictimisation of complainants in court.”

[18]The shortcomings of former s 41 had also been recognised by members of the NSW judiciary.

[19]In his February 2003 paper, Sexual Assault and the Admission of Evidence, Wood CJ at CL expressed the view about former s 41 of the Evidence Act:

This is a power which is seldom invoked, possibly out of fear that the defence will use it to its advantage, by attracting counter sympathy from the jury that it is not being given a “fair run”. In truth, such fear is misguided because an aggressive and unfair cross-examination can be suitably dealt with by the Judge in the absence of the jury.

[20]In a 2004 paper entitled Child Witnesses — Best Practice for Courts, Wood CJ at CL, noted:

The careful exercise of this power, and proper control of the cross-examination of child witnesses, has not always been well managed by the judges, who very often have felt reluctant to interfere, particularly in the absence of an objection. This may well have arisen from lack of experience, or training, or even attention, on the part of trial judges to the inherent disadvantages of child witnesses. It is a matter which requires careful consideration, and vigilance to intervene when questions are put that are age inappropriate, or overly complex (involving for example double negatives), or unduly offensive or aggressive.

[21]In November 2004, the NSW Adult Sexual Assault Interagency Committee released its report to the NSW Government on evidential and procedural issues regarding criminal law sexual offences. In concluding that the legislative protection provided by former s 41 was “under-utilised”, the Committee recommended the following three reforms:

introduction of practice directions to assist judges in utilising s 41 of the Evidence Act 1995 (NSW) to regulate the conduct of cross-examination of the complainant.
Amendment of s 41 of the Evidence Act 1995 (NSW) to place greater restrictions on tone and manner of questions that may be put to the complainant in cross-examination (in addition to content of questions).
Amendment of s 41 to model s 21 of the Evidence Act 1977 (Qld), to further allow the court to consider whether a question is improper having regard to the level or understanding of the witness, cultural background or relationship to any party to the proceeding.

[22]BOCSAR published its evaluation of the NSW Child Sexual Assault Specialist Jurisdiction Pilot in September 2005.⁹ One of the report’s observations was that there was a relatively high incidence of improper questions being put to child witnesses, which was met with varying degrees of judicial intervention (or none at all). The report recommended at p 63:

To provide a “more level playing field” for child witnesses in the “contest” against adult lawyers, it is necessary to re-evaluate the role of cross-examination where children are involved and to encourage greater judicial understanding and judicious intervention.

[23]The ALRC as part of its review into the uniform Evidence Acts, proposed in Discussion Paper 69 (July 2005: Proposal 5–2) that:

Section 41 of the uniform Evidence Acts should be amended to allow that the court may disallow an improper question put to a witness in cross-examination, or inform the witness that it need not be answered. An improper question should be defined as a question that is misleading or confusing, or is annoying, harassing, intimidating, offensive, humiliating, inappropriate (including because it is humiliating, belittling or otherwise insulting) or has no basis other than a sexual, racial, cultural or ethnic stereotype.

[24]The ALRC proposed that a positive duty to disallow improper questions should only apply where a witness is considered vulnerable because of their age, mental or intellectual disability (Proposal 5–3). In my view, the test then envisaged by the ALRC would have created real problems in the court environment with lengthy contests as to whether a witness suffered from an intellectual or mental disability such as to invoke the “duty” to disallow the question. This should not be the focus of the provision. Rather, a judicial officer should be guided by whether a question is misleading or confusing for the witness and should intervene accordingly, regardless of whether the person has a particular vulnerability.

[25]At this stage, the ALRC did not support a general duty on the court to disallow improper questions, stating that “[i]t must be recognised that examination of witnesses occurs in the context of an adversarial system. At times, counsel may seek to gain forensic advantage by allowing the other party to question witnesses in a certain manner”.¹⁰

[26]In response to that, however, the case law makes it clear that, even in an adversarial system, where much of the conduct of proceedings is in the hands of the parties, ultimate control resides with the presiding judicial officer. The duty of the judicial officer is to regulate proceedings in a way that is fair not only to the parties but also to the witnesses.

[27]In the case of R v TA (2003) 57 NSWLR 444, Spigelman CJ observed at 446:

In any event, in my opinion, his Honour was entitled to reject the line of cross-examination by applying s 41 of the Evidence Act. The difficulties encountered by complainants in sexual assault cases in the criminal justice system has been a focus of concern for several decades. Judges play an important role in protecting complainants from unnecessary, inappropriate and irrelevant questioning by or on behalf of an accused. That role is perfectly consistent with the requirements of a fair trial, which requirements do not involve treating the criminal justice system as if it were a forensic game in which every accused is entitled to some kind of sporting chance.

[28]In the final report into the operation of the uniform evidence legislation, the ALRC and the NSWLRC (but not the VLRC) were persuaded by submissions that s 275A of the Criminal Procedure Act “provides a comprehensive model for the protection of all witnesses from improper cross-examination”.¹¹ The report therefore recommended that there no longer be a discretion under s 41 but a mandatory duty to disallow inappropriate questions. The provisions under s 275A have therefore been adopted under new s 41 of the uniform Evidence Acts. The Commissions’ report concluded that:

… the protections offered to witnesses in criminal matters should be no more comprehensive than in civil matters.¹²

The importance of effective judicial intervention to prevent improper cross-examination

[29]It is hoped that the use of s 41 will assist in the process of eliciting the best evidence able to be given by a witness (which includes the accused), free from harassment, intimidation, or abuse.

[30]The section is not designed to limit relevant cross-examination. The High Court has acknowledged that “the limits of cross-examination are not susceptible of precise definition”: Wakeley and Bartling v The Queen (1990) 93 ALR 79 per Mason CJ, Brennan, Deane, Toohey and McHugh JJ at 86. If a question is relevant, but put in an improper form it can be rephrased in an admissible way.

[31]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.

[32]The duty to intervene in cross-examination has since 1995 existed within s 42(3) of the Evidence Act, which requires the court to “disallow the question, or direct the witness not to answer it, if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used”.

Knowledge of factors relevant to the assessment of disallowable questions under s 41

[33]In order to comply with the provision, judicial officers must obtain and maintain a requisite degree of awareness of issues affecting particular classes of witnesses, together with an understanding of how these issues touch upon the witness’s ability to respond to questions put to them during cross-examination.

[34]Judicial officers will need to be especially vigilant in regard to cross-examination of particular classes of witnesses, for example:

children
Aboriginal persons
persons who speak English as a second language
persons with intellectual or physical disabilities

[35]Notice of the calling of these classes of witness should act as “triggers” or “alerts” to the need for preparation in advance of the witness being called, as well as extreme concentration during the giving of their evidence.

[36]Northern Territory Supreme Court Justice, Justice Mildren, expressed this point with respect to Aboriginal witnesses, when he stated:

My experience is that, in cases involving Aboriginal witnesses and/or accused persons, the trial judge must be fully prepared for the trial and ready, if necessary, to intervene more frequently than would be necessary in ordinary trials. I have found that it is essential to read the committal proceedings, first because cross-examination on issues of credit is bound to occur, and the prosecutor may not object even where he plainly should, [and to consider whether to allow counsel to put] leading questions in cross-examination. There is a greater danger of inadmissible evidence being introduced if the witnesses do not know what is expected of them, and counsel may, if inexperienced with Aboriginal people, not realise that a witness is repeating what is common knowledge or “shared” knowledge, contrary to the hearsay rule, for example. Adequate preparation by the Judge can often avoid problems from occurring.¹³

[37]There are resources available to assist.

[38]A useful resource is the Queensland Criminal Justice Commission, 1996 Report, Aboriginal Witnesses in Queensland’s Criminal Courts. Chapter Four of that report is extremely relevant and contains important observations about “Judicial Control of Court Proceedings”.

[39]The Judicial Commission compiled and distributed to all judicial officers in May 2003 as part of the Child Sexual Assault Jurisdiction Pilot Project a folder of materials which contains a range of materials on child development, child thought processes and communication strategies.¹⁴ A number of the materials in the folder focus specifically on the cross-examination of child witnesses, including a paper by Rachel Manley that was presented to the Judges Conference in Perth in 2002 entitled, “Management of child witnesses — practical problems judges should know about”.¹⁵ Tab L p 12 is the beginning of the section entitled “The Comprehension of Children: Communicating with Children”.

[40]More recently, the Judicial Commission has compiled this Sexual Assault Trials Handbook which contains various articles on questioning vulnerable complainants. See for example, Dr J Cashmore, “Child witnesses: the judicial role”; Judge R Ellis, “Judicial activism in child sexual assault cases” at [7-160]; Dr C Eastwood, “Child sexual abuse and the criminal justice system: what educators need to know” at [7-700].

Conclusion

[41]Section 41 does not herald the end of judicial impartiality. On the contrary, it is an attempt to ensure that all witnesses are treated equally and to create a movement away from the tacit acceptance of improper behaviours that cut across fundamental fair-trial principles.

[42]Just as our laws evolve with the changing society towards whom they apply, so too must our notion of what constitutes judicial impartiality. As one Canadian judicial officer has observed:

If our laws and society were unchanging, judicial impartiality would be a simple matter. Judges could simply sit back and let counsel “go to it”. In reality, however, our laws and society are ever-changing. If judicial impartiality means that judges should ignore equality issues unless counsel raise them, then “judicial impartiality” will be a barrier to the protection and enforcement of equality rights. True judicial impartiality requires judges to take the road less travelled and step away from our legal past and assumptions about its continued correctness in order to integrate equality into the interpretation and application of our laws, when appropriate.¹⁶

^*Paper delivered to 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”. Paper modified in December 2008 to incorporate amendments made by the Evidence Amendment Act 2007, commenced 1 January 2009.

¹Evidence Amendment Act 2007, Sch 2, 2.3, [4].

²The Hon Bob Debus, MP, Hansard, Legislative Assembly, 23 March 2005.

³Australian Law Reform Commission, Uniform Evidence Law, ALRC Report No 102; Victorian Law Reform Commission, Uniform Evidence Law Final Report; New South Wales Law Reform Commission, Uniform Evidence Law, Report No 112, Sydney, 2005.

⁴Australian Law Reform Commission, Evidence, ALRC Report 26 (Interim), 1985, Vol 1 at [631].

⁵Vic Law Reform Commission, Sexual offences, Final Report 2004.

⁶Qld Law Reform Commission, The receipt of evidence by Queensland courts: the evidence of children, Summary of recommendations, Report 55, 2000, Pt 2A.

⁷ibid, Recommendation 13.1, at 270.

⁸Heroines of fortitude: the experiences of women in court as victims of sexual assault, NSW Department for Women, 1996.

⁹J Cashmore and L Trimboli, “An evaluation of the NSW child sexual assault specialist jurisdiction pilot”, Discussion paper, NSW Bureau of Crime Statistics and Research, September 2005, available at <www.lawlink.nsw.gov.au/bocsar/>.

¹⁰Australian Law Reform Commission, “Examination and cross-examination of witnesses”, Review of the Uniform Evidence Acts, Discussion Paper 69, July 2005, at [5.111]; p 129; available at <http://www.austlii.edu.au/cgi-bin/viewdoc/au/other/lawreform/ALRCDP//2005/69.html>.

¹¹above, n 3, at 5.114.

¹²above, n 3, at 5.118.

¹³Cited in Aboriginal witnesses in Queensland’s criminal courts, Queensland Criminal Justice Commission, 1996, p 54.

¹⁴Materials relating to child sexual assault, May 2003, Judicial Commission of NSW — For the Child Sexual Assault Jurisdiction Team Education Working Group.

¹⁵ibid, at Tab L.

¹⁶The Hon Judge Donna Hackett, “Finding and following ‘the road less travelled’: judicial neutrality and the protection and enforcement of equality rights in criminal trial courts” (1998) 10(1) Canadian Journal of Women and the Law 129 at 140.