Section 41 of the Evidence Act 1995

Section 41 of the Evidence Act 1995^*

District Court of New South Wales

This paper closely examines s 41 of the Evidence Act 1995 which adopts the provisions of s 275A of the Criminal Procedure Act and was inserted into the Evidence Act on 1 January 2009 by the Evidence Amendment Act 2007. The paper outlines the development of s 41 of the Evidence Act 1995 and s 275A of the Criminal Procedure Act 1986. While the former version of s 41 retained a discretion to disallow a question, s 275A imposed a positive duty on the court in criminal proceedings to disallow an improper question in cross-examination.

Introduction

[1]Section 41 of the Evidence Act 1995 adopts the provisions of s 275A of the Criminal Procedure Act 1986 and applies them to both civil and criminal proceedings. Section 41 was inserted into the Evidence Act by the Evidence Amendment Act 2007 which commenced on 1 January 2009 (Gazette No 158 of 2008, p 12,305). Note that s 275A continues to apply to proceedings the hearing of which began before the commencement of new s 41.¹

[2]Section 275A was inserted into the Criminal Procedure Act 1986 (NSW) in 2005 by the Criminal Procedure Further Amendment (Evidence) Act 2005.²

[3]Section 41 is in the following terms:

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, ethnicity, age or mental, intellectual or physical disability).

(2)

Without limiting the matters 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 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.

[4]Revised s 41 was inserted into the Evidence Act 1995 following a recommendation contained in the Final Report into the Uniform Evidence Law by the Australian Law Reform Commission (ALRC) and New South Wales Law Reform Commission (NSWLRC).³ The Law Reform Commissions had been given a joint reference to review the operation of the uniform evidence legislation following its first decade of operation. The Commissions found in Discussion Paper 69 that the discretion to disallow improper questions in former s 41 of the Evidence Act was under utilised. However, the Commissions recommended that a duty to disallow improper questions only apply to vulnerable witnesses.⁴ The Final Report, published in December 2005, recommended that the discretion in s 41 be replaced with a general duty on the courts to disallow an improper question, in effect, to adopt s 275A of the Criminal Procedure Act in relation to both civil and criminal proceedings.⁵

[5]The precursor to s 41, s 275A, was one of a number of amendments made to the Criminal Procedure Act in 2005. The focus of the amendments was in the area of sexual assault prosecutions although the terms of s 275A had wider application and the section was not restricted to sexual assault prosecutions.

[6]The Attorney General, in his Second Reading Speech, said in relation to the Bill:

This Bill is part of the government’s legal reform in the area of sexual assault prosecutions.⁶

[7]The Attorney went on to observe in relation to a difficulty experienced by complainants in sexual assault cases the following:

And, by its very nature, giving evidence of a sexual assault is like no other evidence. Sexual assault complainant evidence must include precise and explicit details of sexual acts and of intimate sexual violence. Evidence may include swear words, slang usage for body parts, name-calling, derogatory terms or remarks of a personal nature. It is embarrassing and humiliating evidence to give. It can come as no surprise that many victims feel reluctant to come forward and report sexual assaults and, of those that do, their efforts to have their day in court is nothing short of heroic.⁷

[8]Other sections of the amending legislation included provisions that:

prevent the circulation and unauthorised copying of sensitive evidence,
allow evidence of a complainant to be held in camera,
entitle a complainant to have support persons near when giving evidence,
entitle a complainant in sexual assault proceedings to give evidence by utilising alternative arrangements such as screens instead of closed circuit television.

[9]The Attorney went on to say in the Second Reading Speech when dealing with s 275A:

This amendment 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.⁸

The nature of proceedings to which s 41 applies

[10]The section applies to both criminal and civil proceedings.

What is the duty of the court in relation to improper questions

[11]Improper questions are referred to as “disallowable questions”: s 41.

[12]If the court is of the opinion that the question is a disallowable question there are two options:

(a): the court must disallow the question put to the witness in cross-examination, or
(b): inform the witness that it need not be answered.

Description of a disallowable question

[13]A disallowable question is one that:

(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 based on sex, race, culture, ethnicity, age or mental, intellectual or physical disability: s 41(1)(d).

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

challenges the truthfulness of the witness or the consistency or accuracy of any statements made by the witness or,
requires the witness to discuss a subject that could be considered to be distasteful or private: s 41(3).

Whether question is a disallowable question

[15]Factors to be taken into account in order to determine whether the question is a disallowable question include:

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
any mental, intellectual or physical disability of which the court is, or is made, aware, to which the witness is or appears to be subject, and
the context in which the question is put including the nature of the proceedings; if it is a criminal proceedings, the nature of the offence, and the relationship (if any) between the witness and any other party to the proceedings: s 41(2).

[16]The court is not limited by the above and may consider other matters in determining whether the question is a disallowable question.

Objections

[17]A party may object to a question put to a witness on the grounds that it is a disallowable question, however the duty imposed on the court by the section applies whether or not an objection is raised to a particular question: s 41(4)–(5).

Failure of the court to disallow a disallowable question

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

[19]The Attorney General in the Second Reading Speech dealing with s 275A said:

This amendment does not open a new string of appeal points for accused persons.⁹

[20]This view was noted in the Final Report to the Uniform Evidence Law.¹⁰

Comment

[21]As mentioned, one can see by the terms of the section that it has a wider application than prosecutions for sexual assault. Additionally, the section applies to all witnesses, equally, whether called by the prosecution or the defence.

Background to amendments

Approach of appellate courts to judges disallowing questions without objection before legislation

[22]The guidance from appellate courts was, it seems, to exercise caution when disallowing questions not the subject of objection by counsel.

[23]In R v Burl Lars (1994) 73 A Crim R 91 a ground of appeal relied on was the rejection of questions asked by defence counsel, which were not the subject of objection by the Crown prosecutor, or counsel for any of the other accused.

[24]The court held at 126:

The power of the judge to reject a question in the absence of objection should also be exercised with circumspection … What is clear is the circumstances in which a judge should reject a question without objection are obviously limited and the decision whether or not to intervene must always be taken by the trial judge with due regard to the undesirability of an interruption to the flow of cross-examination and above all and especially in a jury trial with regard to the undesirability of interventions which may give the appearance that the judge has descended into the arena and aligned himself with one or other of the combatants … It is also worth remarking that a judge who (except in the case of an offensive or ambiguous or potentially misleading question) rejects a question in the absence of any objection from counsel runs the risk of falling into error and of excluding evidence which ought properly to have been admitted.

[25]The issue of judicial interference in the conduct of counsel was also visited by the High Court in Wakeley v The Queen (1990) 64 ALJR 321.

[26]The court said at 325:

The limits of cross-examination are not susceptible of precise definition … Nor is there any general test of relevance which a trial judge is able to apply in deciding … whether a particular question should be allowed … Although it is important in the interests of the administration of justice that cross-examination be contained within reasonable limits, a judge should allow counsel some leeway in cross-examination in order that counsel may perform the duty … of testing the evidence given by an opposing witness … It is the duty of counsel to ensure that the discretion to cross-examine is not misused. That duty is more onerous because counsel’s discretion cannot be fully supervised by the presiding judge. Of course there may come a stage where it is clear that the discretion is not being properly exercised. It is at that stage that the judge should intervene to prevent both an undue strain being imposed on the witness and an undue prolongation of the expensive procedure of hearing and determining a case. But until that stage is reached — and it is for the judge to ensure that the stage is not passed — the court is, to an extent, in the hands of cross-examining counsel.

Examples of improper questions at common law

[27]Under existing common law, it is regarded as impermissible to ask questions of the following type:

putting to one witness that his or her evidence is to the contrary of others and expressly or impliedly inviting an opinion as for the reasons for the contradiction: R v Booty (unrep, 19/12/94, NSWCCA)
a witness ought not be asked whether another witness is telling lies or has invented something
it is improper to ask a witness to speculate about the reasons someone else did or said something: Palmer v The Queen (1998) 193 CLR 1
unless the witness is an expert permitted to give opinion evidence, a witness should not be asked to respond to a hypothetical question: Rolfe v Katunga Lucerne Mill Pty Ltd [2005] NSWCA 252
double questions
argumentative questions
questions likely to produce answers that are confusing
repetitive questions.

Legislative power to control questions before s 41

Evidence Act 1995

General powers of a court, s 11

[28]The general power of the court to control the conduct of proceedings

[29]It has been held that this provision does not provide any basis for applying evidentiary rules, which are inconsistent with other provisions of the Act: Lane v Jurd [No 2] (1995) 40 NSWLR 708 at 709.

Court’s control over questioning of witnesses, s 26

[30]The section is in the following terms:

The court may make orders it considers just in relation to:

(a)

the way in which witnesses are to be questioned, and

(b)

the production and use of documents and things in connection with the questioning of a witness, and

(c)

the order in which parties may question a witness, and

(d)

the presence and behaviour of any person in connection with the questioning of witnesses.

Leading questions, s 42

[31]This section deals with the power of the court to control leading questions and is in the following terms:

(1)

A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it.

(2)

Without limiting the matters that the court may take into account in deciding whether to disallow the question or give such a direction, it is to take into account the extent to which:

(a)

evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness, and

(b)

the witness has an interest consistent with an interest of the cross-examiner, and

(c)

the witness is sympathetic to the party conducting the cross-examination, either generally or about a particular matter, and

(d)

the witness’s age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness’s answers.

(3)

The court is 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.

(4)

This section does not limit the court’s power to control leading questions.

Crimes Act 1914 (Cth)

Protection of children in proceedings for sexual offences, Pt IAD

[32]Commonwealth legislation includes a number of provisions that provide for the protection of child witnesses and child complainants in certain sexual offence cases (including in relation to child sex tourism and sexual servitude offences).¹¹

[33]In particular, there is a specific provision for the court to disallow a question put to a child in cross-examination if the question is inappropriate or unnecessarily aggressive, having regard to the witness’s personal characteristics, including age, culture, mental capacity and gender: Crimes Act 1914 (Cth) s 15YE.

Prelude to s 275A

Former s 41 Evidence Act 1995

[34]The former version of s 41 granted a discretion to disallow improper questions asked in cross-examination. The section was in the following terms:

41 Improper questions

(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.

ALRC comments on former s 41

[35]The ALRC explained the rationale behind the proposal on which this provision is based.¹²

It is intended that the categories of questions include misleading or oppressive questions (eg which assume the existence of disputed facts that the witness has not admitted), repetitive questioning and questions which are hectoring or abusive. The proposals provide for a 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.

[36]The word “unduly” in s 41(1)(b) applied to each of the adjectives in s 41(1)(b) and not just “annoying”.

[37]The word “unduly” required the court to take into account the right of a party in an adversarial system to test an opposing witness’s account and balances that right against the stress experienced by the witness. Effective cross-examination may involve a form of “harassment”. It may cause embarrassment. However, it may be justifiable nonetheless. It may not be “undue” in the particular circumstance of the case.

[38]An important consideration in this balancing exercise would be the probative value and importance of the evidence sought to be elicited by the cross-examination.¹³

[39]In R v TA (2003) 57 NSWLR 444 at [12], Spigelman CJ, with whom Dowd J agreed, observed that if the probative force of an anticipated answer is likely to be slight, “even a small element of harassment, offence or oppression, would be enough for the court to exercise its discretion under s 41(1)(b)”.

[40]Former s 41(2) made it clear that the circumstances of the particular witness will be relevant. Some witnesses are less able than others to cope with, and more likely to be traumatised by, intense or embarrassing cross-examination.¹⁴

[41]In R v TA, Spigelman CJ referred to the difficulties encountered by complainants in sexual assault cases in the criminal justice system and the need for a court to consider the effect of cross-examination of the trial experience upon a complainant when deciding whether cross-examination is unduly harassing, offensive or oppressive. His Honour noted at [8]:

That role is perfectly consistent with the requirement 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.

[42]Odgers observed:

Of course the public interest in minimising the risk of convicting an innocent person must also mean that the boundaries or legitimate cross-examination should not be circumscribed “unduly”.¹⁵

Background to the understanding of s 275A

[43]The Australian Law Reform Commission (ALRC), New South Wales Law Reform Commission (NSWLRC), Victorian Law Reform Commission (VLRC) and Queensland Law Reform Commission (QLRC), all made and received submissions as to the adequacies of former s 41 to protect witnesses, and in particular, vulnerable witnesses, from improper questions.

[44]The commissions consulted widely receiving submissions from a number of interested groups. It was argued that the previous legislative provisions and the common law in practice had not provided a sufficient degree of protection for vulnerable witnesses.

[45]The ALRC was considering amending s 41. It had at this stage s 275A as a potential model for proposed amendments. The submissions received were also no doubt relevant to the New South Wales Government’s decision to introduce s 275A.

[46]In their inquiry into children and the legal process the ALRC noted significant and distressing evidence that child witnesses, particularly in child sexual assault cases, are often berated and harassed to the point of breakdown during cross-examination.¹⁶

[47]Concerns were raised about the role of lawyers, and also about the role of judges and magistrates as the “referees” of the trial. In ALRC 84, the ALRC made recommendations for the development of guidelines and training programs to assist judges, magistrates and lawyers in dealing with child witnesses.

[48]In its report on sexual offences the VLRC concluded that general provisions regulating cross-examination, such as s 41 were insufficient to ensure that child witnesses are protected against inappropriate questions.¹⁷

[49]The VLRC supported a recommendation of the QLRC 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.¹⁸

Complainants in sexual assault matters

[50]It was noted that complainants in sexual assault were in a particularly vulnerable and distressing position in a court room. The NSWLRC recognised that there are at least three factors that make sexual offence trials particularly distressing for complainants:

the nature of the crime
the role of consent with its focus on the credibility of the complainant
the likelihood that the complaint and the accused knew each other before the alleged assault.¹⁹

[51]The NSWLRC found that the treatment of such matters in cross-examination is a particular concern, with the complainants likely to be cross-examined for a longer period of time than victims of other types of assaults. Complainants have appealed for greater control of cross-examination to make the process less stressful.

[52]Justice Wood, in a paper entitled “Sexual assault and the admission of evidence”, when dealing with s 41 expressed the view that:

Perhaps regrettably 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

[53]In November 2004, the New South Wales Adult Sexual Assault Interagency Committee released its advice to the New South Wales Government on evidentiary and procedural issues regarding criminal law sexual offences. That report also found that provisions in place to address improper questioning are underutilised.²¹ The Committee’s report recommended, inter alia, the following reforms:

amendment to s 41 to place greater restrictions on tone and manner of questions that may be put to the Complainant in cross-examination.
amendment to s 41 to model s 21 of the Evidence Act 1977 (Qld) to further allow the court to consider whether a question is improper by having regard to the level of understanding of the witness, cultural background or relationship to any party to the proceeding.

Other vulnerable witnesses

[54]The Intellectual Disability Rights Service submitted that cross-examination using misleading or suggestive questioning techniques can adversely affect the ability of a person with an intellectual disability to recall an event accurately, and repetition of questions can cause a person with an intellectual disability to change his or her answers. It was submitted that this may result in the witness giving the questioner a response which the questioning process has led the witness to believe to be the “correct” answer even though the witness may effectively be agreeing to something which is not true. The service submitted that it was their experience that some judges demonstrated an unwillingness to limit inappropriate or offensive cross-examination of witnesses with an intellectual disability.²²

[55]The above view was consistent with a study undertaken in 2003, which found that judges were no more likely to intervene for witnesses with a learning disability than for witnesses in the general population.²³

[56]Another organisation that recognised the shortcomings of the former version of s 41 in providing adequate protection for witnesses was the Department for Women. In 1996, the Heroines of fortitude report²⁴ called for greater utilisation by judges of the Evidence Act provisions to limit questions that are insulting, degrading, humiliating or irrelevant during cross-examination.

[57]The report concluded that, on the whole judicial officers and prosecutors are reluctant to limit irrelevant and inappropriate cross-examination even when it is clear that the complainant is suffering distress. In this way judges may well be sanctioning the re-victimisation of complainants in court.

Aboriginal and Torres Strait Islander witnesses

[58]The NSWLRC has identified a number of areas where communication difficulties may occur between Aboriginal and non-Aboriginal people in a courtroom setting:

Aboriginal society values the use of silence in conversation more than non-aboriginal society, which can lead to misunderstanding in court and can be incorrectly seen as guilt, ignorance or reflection of a communication breakdown
Aboriginal witnesses may agree gratuitously with whatever the questioner has put to him or her. This occurs particularly where many “yes – no” questions are being asked by someone in a position of authority
Aboriginal people frequently do not use numbers or other quantative means of describing events, such as days of the week, days or time. Consequently, if specific answers are sought to questions like “how” or “when” Aboriginal witnesses are frequently seen as vague.²⁵

[59]The ALRC received submissions with a view to recommending amendments to s 41 of the Evidence Act and took into consideration the New South Wales model, namely s 275A.

[60]The inquiry asked a number of judicial officers and senior advocates whether s 41 was used often to limit inappropriate or offensive cross-examination.

[61]Some New South Wales District Court judges indicated that they were more likely to use the court’s general powers to control proceedings rather than specifically make reference to s 41.²⁶

[62]A number of judges in the Australian Capital Territory Supreme Court agreed that advocates can often be dissuaded from a line of questioning without the formality of mentioning s 41.²⁷

[63]A number of senior practitioners made the point that, in their experience, the section is not often invoked by judges.²⁸

[64]The Office of the Director of Public Prosecutions in New South Wales submitted that the use of former s 41 was inconsistent and depended upon the particular judicial officer and prosecutor.

[65]The Law Council noted that former s 41 gave no indication as to how the discretion to disallow questions is to be exercised — there is no discernible judicial policy in respect of the discretion and its exercise is left to all the facts and circumstances of the individual case.²⁹

ALRC’s view on amendments to former s 41

[66]At the time the ALRC was considering such amendments it had, as mentioned, s 275A as a model.

[67]The ALRC made the following observations in its Discussion Paper 69:

The use of s 41 to control improper questions during cross-examination is “patchy and inconsistent” and supported the VLRC and others that the approach in s 41 is too limited to provide sufficient protection to vulnerable witnesses in some types of matters.
It supported s 275A to the extent that it set out a more comprehensive and detailed list of questions that are inappropriate. It noted that whilst those types of questions could and should already have been disallowed under s 41 as it stands, explicit reference to these types of questions may serve to bring them to judicial attention and provide greater guidance as to how the discretion to limit cross-examination should be exercised.
It advocated a different approach from s 275A in two regards:

(i)

The protection offered to witnesses in criminal matters should be no more comprehensive than in civil matters. A witness in a negligence or civil assault may be equally vulnerable to attack in cross-examination as a victim of a crime. Any amendment to s 41 should apply equally to civil and criminal matters.

(ii)

In Discussion Paper 69, the ALRC did not support imposing a general duty on the court to disallow improper questions. It noted that it should be recognised that examination of witnesses incur in the context of an adversarial system. In such an environment the ALRC observed that counsel may seek to gain forensic advantage by allowing the other party to question witnesses in a certain manner. It was of the view that in the case of an ordinary witness the objections of counsel and discretionary power under s 41 would be sufficient to ensure the appropriate questions are asked of witnesses.
In relation to vulnerable witnesses such as child witnesses and witnesses with a cognitive impairment, it recommended additional protection be offered. It noted:

Courts have a duty to protect vulnerable witnesses and it must be mandatory for judicial officers to disallow improper questions in these circumstances. Questioning which must be disallowed includes confusing or repetitive questions and questions structured in a misleading or confusing way.

[68]Lloyd Babb, Director, Criminal Law Review Division, was of the view that the test envisaged by the ALRC would create problems in the court environment with lengthy contest as to whether a witness suffers from an intellectual or mental disability such as to invoke the “duty” to disallow the question. He argued that this should not be the focus of the provision but 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.³⁰

[69]The Director made the following observations concerning the knowledge of facts as relevant to the assessment of disallowable questions under s 275A which are worthy of note:

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

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.

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.

[70]In its Final Report published in December 2005, the ALRC and the NSWLRC (but not the VLRC) were “persuaded that s 275A … provides a comprehensive model for the protection of all witnesses from improper cross-examination”.³¹ Submissions to the Commission inquiry indicated that former s 41 was under utilised and there remained concerns with judicial control of cross-examination. Furthermore, the Commissions noted the concerns raised in submissions that the proposed definition of a vulnerable witness in Discussion Paper 69 was “too narrow” and that expanding the categories of “vulnerability” to include other groups may be insufficient and lead to “drawn out argument as to whether a witness suffers from a sufficient level of intellectual disability to be considered vulnerable”.³²

[71]The Final Report therefore recommended that the duty to disallow improper questions should have general application to both civil and criminal proceedings.

Cultural change

[72]The Criminal Law Review Division submitted that the imposition of a duty to disallow questions under s 275A did not compromise judicial impartiality, but instead demonstrated a move away from “the tacit acceptance of improper behaviours that cut across fundamental fair trial principles.”

[73]Chief Justice Spigelman has acknowledged the dynamic nature of the principle of a fair trial:

In particular, it enables the court to acknowledge fundamental changes in community expectations as to the requirements of a fair trial. What is regarded as fair, particularly in the context of a criminal trial, has always varied with changing social standards and circumstances.”³³

[74]In a similar mood the Honourable Judge Donna Hackett, a Canadian judge observed:

If our laws in 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 in 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 to integrate equality in to the interpretation and application of our laws, when appropriate.³⁴

^*Paper delivered at the District Court of New South Wales Annual Conference, 10–12 April 2007, Leura, under the original title “Section 275A of the Criminal Procedure Act 1986”. Updated February 2009.

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

²The Act was assented to on 31 May 2005 and came into force on 12 August 2005.

³ALRC, NSWLRC, VLRC, Uniform Evidence Law Report, ALRC Report 102, NSWLRC Report 112, VLRC Final Report, Sydney, 2005, at 5.118.

⁴Ibid at 5.92.

⁵Ibid at 5.111.

⁶The Hon Bob Debus, MP, Hansard, Legislative Assembly, 23 March 2005.

⁷ibid.

⁸ibid.

⁹ibid.

¹⁰Above, n 3 at 5.115.

¹¹Part IAD was inserted by the Measures to Combat Serious and Organised Crime Act 2001 (Cth).

¹²Evidence (Iterim), ALRC Report 26, 1985, Vol 1 at [631].

¹³S Odgers, Uniform evidence law, 7th edn, Thomson, Sydney, 2006, p 121.

¹⁴ibid.

¹⁵ibid.

¹⁶Australian Law Reform Commission, Seen and heard: priority for children in the legal process, ALRC Report 84, Sydney, 1997.

¹⁷Vic Law Reform Commission, Sexual offences, Final Report, 2004 at [5.146].

¹⁸Qld Law Reform Commission, The receipt of evidence by Queensland courts; the evidence of children, Summary of recommendations, Report 55, 2000, Pt 2A, Rec 13.1.

¹⁹NSW Law Reform Commission, Questioning of complainants by unrepresented accused in sexual offence trials, Report 101, 2003 at [2.2].

²⁰12 February 2003 at [101].

²¹NSW Adult Sexual Assault Interagency Committee, A fair chance: proposal for sexual assault law reform in NSW, 2004, p 3.

²²Intellectual Disability Rights Service, Submission E101, 23 September 2005.

²³C O’Kelly, M Kebbell, C Hatton and S Johnson, “Judicial intervention in court cases involving witnesses with and without intellectual disabilities” (2003) 8 Legal and Criminological Psychology 229.

²⁴Heroines of fortitude: the experiences of women in court as victims of sexual assault, NSW Department for Women, 1996.

²⁵NSW Law Reform Commission, Sentencing: Aboriginal offenders, Report 96, 2000 at [7.5].

²⁶NSW District Court Judges, Consultation, Sydney, 3 March 2005.

²⁷Supreme Court of ACT Judicial Officers, Consultation, Canberra, 8 March 2005.

²⁸B Donovan, Consultation, Sydney, 21 February 2005; T Game, Consultation, Sydney, 25 February 2005; Crown prosecutors, Consultation, Sydney, 11 February 2005; Legal Aid Office (ACT), Consultation, Canberra, 8 March 2005.

²⁹Law Council of Australia, Submission E32, 4 March 2005.

³⁰Lloyd Babb, “What does s 41 of the Evidence Act mean to you as a judicial officer?”, paper presented at Judicial Commission of New South Wales Twilight Seminar, 28 September 2005.

³¹Above, n 3 at 5.114.

³²Above, n 3 at 5.109.

³³J Spigelman, “The truth can cost too much: the principle of a fair trial” (2004) 78 ALJ 29 at 43.

³⁴“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.