2.1 This chapter provides a summary of the laws limiting the questioning of complainants by an unrepresented accused, in New South Wales and in other jurisdictions around Australia and abroad.
NEW SOUTH WALES
2.2 In a criminal trial, prosecution witnesses give evidence first, and are cross-examined by the defence. Defence witnesses then give evidence, and are cross-examined by the prosecution. In a sexual assault trial, the complainant is a witness for the prosecution, and is questioned either by the accused or the accused’s legal representative.
2.3 To ensure the trial is fair, defendants must be allowed to test the evidence given against them. However, the right of an accused to cross-examine a witness is limited in some circumstances. There is a general bar on questions which are unduly harassing, intimidating or offensive.*1 Asking questions about sexual experience is prohibited.*2 There is also legislation limiting the ability of an unrepresented accused to question child witnesses directly.*3 There is, however, no specific restriction on the questioning of adult complainants in sexual offence cases.
General limitation on questioning
2.4 The right to question a witness is subject to the inherent power of the court to control proceedings.*4 In particular, the court may make such orders as it considers just in relation to the way in which witnesses are questioned, and the presence and behaviour of any person in connection with the questioning of witnesses.*5 The court also has the power to disallow improper questions in cross-examination. It may disallow a question to be put to the witness, or inform the witness that it need not be answered, if the question is “unduly annoying, harassing, intimidating, offensive, oppressive or repetitive.”*6 This provision restricts the type of questions that an unrepresented accused may ask during cross-examination, but does not prevent the accused from questioning the complainant in person.
2.5 The rule against improper questioning is limited by the adversarial nature of the trial process. The role of the judge is to adjudicate after hearing evidence from both sides, not to investigate the matter. Both sides are entitled to test the evidence given against them. Cross-examination gives the defence an essential opportunity to attack the evidence given by the prosecution, and to cast doubt upon the witness’ testimony. The adversarial nature of proceedings makes it difficult for the judge to intervene in order to protect the witness from undue distress or intimidation.
2.6 The protection is further limited by the qualification that the question must be “unduly” annoying, harassing, intimidating, offensive or repetitive before the judge will intervene. This suggests that some degree of harassment or intimidation will be allowed.*7
2.7 Empirical evidence from child sexual abuse cases shows that, in practice, it is difficult for judges to curtail aggressive cross-examination in the interest of the witness.*8 There would probably be a stronger reluctance to intervene in the case of adult witnesses. For this reason, the general limitation on questioning contained in the Evidence Act 1995 (NSW) may not afford adequate protection to complainants in sexual assault cases.
Exclusion of evidence relating to sexual experience
2.8 In sexual offence proceedings, witnesses cannot be questioned on their sexual history. Evidence relating to the complainant’s sexual reputation or experience is generally inadmissible.*9 However, evidence of sexual experience is admissible if the alleged activity occurred at or about the time the offence occurred, and it forms part of the connected set of circumstances, or if it relates to a recent relationship between the accused and the complainant. Certain evidence is admissible if the accused denies that the alleged sexual intercourse took place. Where the prosecution adduces evidence of the complainant’s sexual history, cross-examination on the evidence is allowed, if the accused would be unfairly prejudiced if cross-examination were prohibited. Importantly, evidence relating to sexual experience is only admissible where its probative value outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.*10
2.9 The accused cannot question the complainant on sexual experience unless the court has previously decided that the evidence would, if given, be admissible.*11 This provision prevents the accused from asking distressing or humiliating questions despite the fact that the evidence will be inadmissible.
2.10 This restriction recognises the special issues surrounding sexual assault cases, and the need for witnesses in such proceedings to be protected from unnecessary distress, humiliation or embarrassment. The provision was reviewed by the Commission in its Review of Section 409B of the Crimes Act 1900 (NSW).*12
Child witnesses
2.11 Under the Evidence (Children) Act 1997 (NSW), children may use alternative arrangements to give evidence when the accused is unrepresented. Section 28 sets out a presumptive prohibition on an unrepresented accused questioning a child witness.*13 It applies to an unrepresented accused in any criminal proceedings and an unrepresented defendant in civil proceedings arising from a personal assault offence. It requires that a witness who is under the age of 16 years is to be cross-examined by a person appointed by the court instead of by the accused. If such a person is appointed, that person is to ask the child any questions that the accused requests the person to put to the child, provided the question is not “unduly annoying, harassing, intimidating, offensive, oppressive or repetitive.”*14 However, the court may choose not to appoint such a person if it considers that it is not in the interests of justice to do so.
2.12 A recent amendment, not yet in force, clarifies the role of the court appointed intermediary.*15 The person is appointed merely to ask questions on behalf of the accused, and is not to give any legal or other advice. The intermediary is a mere mouthpiece and is not to influence the course of cross-examination in any way.*16
2.13 The Evidence (Children) Act 1997 (NSW) implements many of the recommendations of the New South Wales Children’s Evidence Taskforce in its report, Taking Evidence in Court.*17 The Taskforce focused specifically on the difficulties faced by children giving evidence in court. Its recommendation about questioning by an unrepresented accused was similar to the provision ultimately included in the Act.*18 The Taskforce took the view that it was appropriate to place some limits on the ability of an unrepresented accused to cross-examine child witnesses in order to prevent intimidation of such witnesses. At the same time, it recognised the difficulties involved in balancing the need to protect child witnesses and the need to protect the rights of the accused.
2.14 Arguably, the legislation restricting cross-examination of child witnesses does not go far enough. There is empirical evidence that the most distressing part of the court process for children in sexual abuse cases is cross-examination and, as a result, a majority of children would choose not to report such an incident again.*19
Witnesses with an intellectual disability
2.15 There is currently no prohibition on an unrepresented accused cross-examining, in person, a witness with an intellectual disability. However, the Committee on Intellectual Disability and the Criminal Justice System recently recommended that there be a presumption in favour of a witness with an intellectual disability having alternative arrangements for giving evidence. Where the accused is unrepresented, this would include the right to be cross examined via a court-appointed third person.*20
2.16 The NSW Law Reform Commission has also noted the hurdles faced by witnesses with an intellectual disability. Such witnesses may be regarded as unreliable, as their credibility, as well as their capacity to understand the concept of telling the truth, may be doubted by the judge or jury.*21 The Commission recommended that, if the court is satisfied that a witness with an intellectual disability may be unable to give evidence without the use of special arrangements because he or she is unduly inhibited in giving evidence in the normal way, the court may order that special arrangements be made for taking that witnesses’ evidence.*22 This might include having a support person sitting with the witness, or using screens or closed circuit television.*23
Charter of Victims Rights
2.17 The rights of victims of crime are currently recognised and promoted by the Victims Rights Act 1996 (NSW). The Act states that “a victim should be protected from unnecessary contact with the accused and defence witnesses during the course of court proceedings.”*24 However, the Act creates no legal rights and does not affect the validity of any judicial act or omission.*25
Use of alternative arrangements
2.18 In some jurisdictions, alternative arrangements are available to protect certain witnesses from embarrassment or distress. For example, evidence may be given through the use of closed circuit television, or a screen or partition may be placed to obscure the witness’ view of the defendant.*26 In New South Wales, the use of closed circuit television is available. However, it is largely to enable evidence to be given by remote witnesses or witnesses who are in custody, and not for the purpose of minimising distress.*27 Again, child witnesses are an exception, as they have the right to give evidence by closed circuit television in certain proceedings.*28
OTHER JURISDICTIONS
Commonwealth
2.19 The Crimes Act 1914 (Cth) limits the cross-examination of child witnesses in proceedings for Commonwealth sex and sex-related offences. An unrepresented defendant is prohibited from cross-examining a child complainant in person. Instead, the questions are put to the child by a person appointed by the court.*29 For child witnesses other than the complainant, cross-examination in person is allowed only with leave, where the court considers that the child’s ability to testify will not be adversely affected if the defendant conducts the cross-examination in person. If the court refuses leave, the questions are put to the child through a court appointed intermediary, as happens with child complainants.*30 Special facilities and arrangements are available for all child witnesses in sex offence proceedings. These include closed-circuit television, screens, alternative seating arrangements and video recordings of evidence.*31
2.20 The provisions recognise that child witnesses in sex offence proceedings are particularly vulnerable because of their age and because of the nature of the alleged crime. They also seek to reduce the distress and trauma experienced by the witness.*32
2.21 There is no equivalent legislation for adult witnesses in sex offence proceedings.
Queensland
2.22 The Criminal Law Amendment Act 2000 (Qld) introduced a new scheme to regulate the cross-examination of “protected witnesses”. Now, the accused is prohibited from cross-examining the complainant in person in proceedings for sexual offences and serious offences of violence.*33 Further, the court has the discretion to prevent the cross-examination of complainants in proceedings for less serious offences, involving assaults or threats.*34 For less serious offences, the court must be satisfied that the witness would be likely to be disadvantaged as a witness or likely to suffer severe emotional trauma if cross-examined by the accused.*35
2.23 The court must advise accused persons that they are prohibited from cross-examining protected witnesses in person. The accused must advise the court by a particular date that he or she has arranged for legal representation, or no longer wants to cross-examine the witness. If the court does not receive such notice, legal assistance is provided by Legal Aid, for the purpose of cross-examination only.*36 The court must warn the jury that no adverse inference can be drawn from the fact that the accused has been prevented from cross-examining the witness in person.*37
2.24 The Criminal Law Amendment Act 2000 (Qld) also prohibits an unrepresented accused from cross-examining children or witnesses who are intellectually impaired.*38 The Act implemented and expanded the recommendations made by the Queensland Law Reform Commission in its Report 55, The Receipt of Evidence by Queensland Courts: the Evidence of Children (2000).
Northern Territory
2.25 Unrepresented defendants are prohibited from cross-examining complainants in person. The Sexual Offences (Evidence and Procedure) Act 1983 (NT) states that in a trial for a sexual offence, an unrepresented defendant is not entitled to cross-examine the complainant directly. The defendant puts the question to the judge or other approved person, and that person repeats the question accurately to the complainant.*39 Where a defendant conducts cross-examination in this way, the judge must warn the jury that the procedure is routine, no adverse inference is to be drawn against the accused, and the evidence of the witness is not to be given any greater or lesser weight because of the arrangement.*40
2.26 Alleged victims of domestic violence are also protected. A recent amendment to the Domestic Violence Act 1992 (NT) sets up a presumption against the direct cross-examination of persons applying for restraining orders in relation to domestic violence. Unless the court orders otherwise, the person against whom the restraining order is sought is not entitled to cross-examine the witness where the couple are in a domestic relationship. Instead, questions are put to the court or an authorised person, and then repeated accurately to the applicant. The court may order that the unrepresented respondent may cross-examine the applicant in person only “if it is just or desirable to do so”.*41 This amendment, not yet in force, will ensure that direct cross-examination is the exception rather than the rule.*42
2.27 The Northern Territory also has legislation providing alternative arrangements for vulnerable witnesses. “Vulnerable witness” includes an alleged victim of a sexual assault to which the proceedings relate. It also includes a witness who is a child, a witness who suffers from an intellectual disability and a witness who is under a special disability because of the circumstances of the case or of the witness.*43
2.28 A vulnerable witness is entitled to give evidence using alternative arrangements. The witness may choose to give evidence outside the courtroom, which is then transmitted by closed circuit television. A screen may be placed to obscure the witness’ view of the accused, or the witness may be accompanied by an appropriate person for emotional support. Where such arrangements are used, the judge must issue a warning to the jury. No such arrangement may be used where it is not in the interests of justice to do so.*44
Western Australia
2.29 In Western Australia, section 106G of the Evidence Act 1906 (WA) prohibits an unrepresented accused from cross-examining a child under 16 years of age in criminal proceedings. It provides that, where an unrepresented defendant wishes to cross-examine a child, the defendant is not entitled to do so directly, but may put any question to the child by stating that question to the judge (or other person approved by the court), who then repeats the question accurately to the child.
2.30 This provision was part of a package of legislative reforms relating to the evidence of children and other vulnerable witnesses. These reforms followed, to a large extent, recommendations of the Law Reform Commission of Western Australia in its report, Evidence of Children and Other Vulnerable Witnesses.*45 The Commission took the view that questioning a child in these circumstances may be stressful for the child, and considered the use of an intermediary to be desirable. It likened the use of an intermediary in this situation to the employment of an interpreter where a witness does not speak English.*46 The focus of the Commission’s reference was child witnesses, and its recommendation was therefore limited to the cross-examination of children. It also considered the need for special provisions to allow other vulnerable witnesses to give evidence, including, for example, the use of closed circuit television. It included complainants in sexual assault cases within its definition of vulnerable witnesses, noting that such complainants suffer an unusual degree of stress when giving evidence in court.*47
South Australia
2.31 The Evidence Act 1929 (SA) provides for the protection of vulnerable witnesses, but does not bar an unrepresented accused from cross-examining the complainant in person. “Vulnerable witness” includes a witness who is the alleged victim of a sexual offence to which the proceedings relate. The court may make special arrangements for taking evidence from a witness in order to protect the witness from embarrassment, distress or intimidation or for any other reason.*48 However, the court cannot relieve a witness from the obligation to submit to cross-examination.*49
OVERSEAS DEVELOPMENTS
United Kingdom
2.32 The Youth Justice and Criminal Evidence Act 1999 (UK) imposes an absolute prohibition on cross-examination of an alleged victim by an unrepresented defendant charged with rape or other prescribed sexual offence.*50 The court also has the power to prohibit unrepresented defendants from cross-examining an alleged victim in other types of proceedings, if it is satisfied that the circumstances of the witness and the case merit it, and it would not be contrary to the interests of justice.*51
2.33 If an unrepresented defendant is banned from cross-examining a particular witness in person, the court will ask the defendant to appoint his or her own legal representative to conduct the cross-examination. If the defendant does not appoint a legal representative, the court considers whether it is necessary, in the interests of justice, for the witness’ evidence to be tested. If it is necessary, the court will appoint a legal representative to cross-examine the witness on behalf of the defendant. However, court-appointed legal representatives are not instructed by defendants and are not responsible to them.*52 Defendants who are banned from personally cross-examining witnesses may apply for legal aid on the same means-tested basis as other defendants in criminal trials.*53
2.34 If the court appoints a legal representative in this way, the judge must consider warning the jury first, that the witness’ evidence may not have been tested as fully as it might have been, and second, that no prejudicial inference should be drawn from the fact that the defendant was prevented from cross-examining the witness in person.*54
2.35 The impetus for these measures came from various directions. In one prominent rape case, the defendant used the opportunity of personally cross-examining the victims of the assault to humiliate them. The trial judge registered his concern and, on appeal, the Lord Chief Justice used the opportunity to issue guidelines encouraging judges to prevent abusive questioning.*55 Shortly afterwards, the Home Office published a report recommending a mandatory prohibition on unrepresented defendants personally cross-examining the complainant in cases of rape and serious sexual assault.*56
2.36 The Youth Justice and Criminal Evidence Act 1999 (UK) repealed and replaced section 34A of the Criminal Justice Act 1988 (UK), which dealt with cross-examination of child witnesses by an unrepresented accused.
New Zealand
2.37 In New Zealand, section 23F of the Evidence Act 1908 (NZ) limits the cross-examination of child witnesses in sexual offence cases. It provides that an unrepresented accused can question the child by stating each question to a person, approved by the judge, who then repeats the question to the complainant. The Law Commission of New Zealand recently reviewed this section as part of a general reference on evidence law. It took the view that section 23F should be extended to apply to all sexual offence cases, and also to cases concerning domestic violence or harassment, regardless of the complainant’s age. It considered that not permitting the accused to cross-examine the complainant personally would help reduce the stress for the complainant, and therefore improve the quality of the evidence. It noted that all the submissions received favoured extending section 23F to include all sexual complainants regardless of age, though there was some difference of opinion about whether the trial judge should retain a discretion to override the prohibition if it was thought desirable to do so in the interests of justice.*57
2.38 As part of its general reference on evidence law, the Law Commission published the Evidence Code and Commentary, in the form of a draft statute. Section 95 of the draft Code sets out the restrictions on cross-examination by unrepresented parties. There is an absolute bar on cross-examination by unrepresented defendants of all complainants and child witnesses in sexual cases, and all complainants and child witnesses in domestic violence cases. Further, the judge has the discretion to disallow personal cross-examination in all other cases, on grounds including (but not limited to) the age of the witness, any disability of the witness, the linguistic or cultural background of the witness, the nature of the proceedings or the relationship of the witness to the unrepresented party. When considering whether to disallow personal cross-examination, the judge must ensure that the defendant still has a fair trial, and balance this against the need to minimise the stress of the witness.*58
2.39 Unrepresented defendants who are precluded from personally cross-examining a witness may have their questions put to the witness by the judge, or a person appointed by the judge for the purpose.59 In its commentary, the Law Commission stated that in considering who to appoint, it may not be appropriate, for example, for a friend or relative of the unrepresented party to ask the questions.*60 The judge also has the discretion to refuse a question or rephrase it before it is put to the witness.*61
2.40 The draft Code has not yet been implemented in New Zealand. However, the Ministry of Justice anticipates sending a paper to Cabinet in September 2002 seeking approval for the introduction of an Evidence Bill based on the Law Commission’s Evidence Code.*62 If passed in its current form, the cross-examination of the complainant by an unrepresented party in a sexual assault case would be prohibited in New Zealand.
Canada
2.41 In Canada, the right of an unrepresented accused to cross-examine a witness is limited in some circumstances. A person charged with a sexual offence or offence of violence cannot cross-examine a witness in person, where the witness is under the age of 18 years, unless in the opinion of the court the proper administration of justice requires that the accused conduct the examination in person. Where the accused is prohibited from conducting the cross-examination in person, the court appoints counsel for the purpose of cross-examination.*63
2.42 The prohibition applies with respect to child witnesses only. There is no general ban preventing an unrepresented accused from questioning a complainant in person.
Footnotes
*1. Evidence Act 1995 (NSW) s 41. See para 2.4-2.7.
*2. Criminal Procedure Act 1986 (NSW) s 105. See para 2.8-2.10.
*3. Evidence (Children) Act 1997 (NSW) s 28. See para 2.11-2.14.
*4. This power is recognised in the Evidence Act 1995 (NSW) s 11.
*5. Evidence Act 1995 (NSW) s 26(a) and s 26(d).
*6. Evidence Act 1995 (NSW) s 41.
*7. C Eastwood and W Patton, The Experiences of Child Complainants of Sexual Abuse in the Criminal Justice System (Queensland University of Technology, 2002) at 122.
*8. Eastwood and Patton at 99-102, 123 and 126.
*9. Criminal Procedure Act 1986 (NSW) s 105. Note that this section replaced the former s 409B of the Crimes Act 1900 (NSW).
*10. Criminal Procedure Act 1986 (NSW) s 105(4).
*11. Criminal Procedure Act 1986 (NSW) s 105(5).
*12. New South Wales Law Reform Commission, Review of Section 409B of the Crimes Act 1900 (NSW) (Report 87, 1998).
*13. The original version of this provision appeared as s 405FA of the Crimes Act 1900 (NSW). Section 405FA was inserted into the Crimes Act by the Crimes Amendment (Children’s Evidence) Act 1996 (NSW) Sch 1, which has since been repealed.
*14. Evidence Act 1995 (NSW) s 41.
*15. Evidence Legislation Amendment Act 2001 (NSW) Sch 2 cl 2.
*16. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 11 December 2001, The Hon J Hatzistergos, Second Reading Speech at 19903.
*17. NSW Children’s Evidence Taskforce, Taking Evidence in Court (NSW Attorney General’s Department, Sydney, 1994). Those recommendations were originally implemented by the Crimes Amendment (Children’s Evidence) Act 1996 (NSW): see New South Wales, Parliamentary Debates (Hansard) Legislative Council, 11 September 1996, The Hon J W Shaw, Attorney General, Second Reading Speech at 4054.
*18. The recommendation of the Taskforce was limited to cross-examination of child witnesses only, rather than examination in chief and re-examination. It also distinguished between questioning with and without the use of closed circuit television: see Taking Evidence in Court at para 8.1.1-8.1.5 and Recommendation 28.
*19. C Eastwood and W Patton, The Experiences of Child Complainants of Sexual Abuse in the Criminal Justice System (Queensland University of Technology, 2002) at 1, 59 and 71.
*20. Committee on Intellectual Disability and the Criminal Justice System, coordinated by the Criminal Law Review Division of the NSW Attorney General’s Department, People with an Intellectual Disability – Giving Evidence in Court (Sydney, 2000) at Recommendation 7.11.
*21. NSW Law Reform Commission, People with an Intellectual Disability and the Criminal Justice System (Report 80, 1996) at para 2.31.
*22. NSW LRC, Report 80 at Recommendation 29.
*23. NSW LRC, Report 80 at para 7.16-20.
*24. Charter of Victims Rights cl 6.7, in the Victims Rights Act 1996 (NSW) s 6.
*25. Victims Rights Act 1996 (NSW) s 8.
*26. For example, Evidence Act 1939 (NT) s 21A(2); Evidence Act 1929 (SA) s 13(2). See para 2.27-2.28 and 2.31.
*27. See Evidence (Audio and Audio Visual Links) Act 1998 (NSW).
*28. See Evidence (Children) Act 1997 (NSW) s 16-s 25.
*29. Crimes Act 1914 (Cth) s 15YF.
*30. Crimes Act 1914 (Cth) s 15YG.
*31. Crimes Act 1914 (Cth) s 15YI-N.
*32. Explanatory Memorandum to the Measures to Combat Serious and Organised Crime Act 2001 (Cth).
*33. Evidence Act 1977 (Qld) s 21M and s 21N.
*34. Evidence Act 1977 (Qld) s 21M.
*35. Evidence Act 1977 (Qld) s 21M(1)(d).
*36. Evidence Act 1977 (Qld) s 21O-P.
*37. Evidence Act 1977 (Qld) s 21R.
*38. Evidence Act 1977 (Qld) s 21M.
*39. Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 5(1).
*40. Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 5(2); Evidence Act 1939 (NT) s 21A(3).
*41. Domestic Violence Amendment Act 2001 (NT) s 10.
*42. Northern Territory, Parliamentary Debates (Hansard) Legislative Assembly, 5 June 2001, Mr Burke, Attorney General, Second Reading Speech at 7890. Prior to this amendment, the court could already make an order preventing cross-examination in person, but there was no presumption against it: Domestic Violence Act 1992 (NT) s 20AD.
*43. Evidence Act 1939 (NT) s 21A(1).
*44. Evidence Act 1939 (NT) s 21A(2)-s 21A(3).
*45. Law Reform Commission of Western Australia, Evidence of Children and Other Vulnerable Witnesses (Project 87, Discussion Paper, 1990 and Report, 1991).
*46. See Evidence of Children and Other Vulnerable Witnesses (Discussion Paper 1990) at para 4.62-4.63.
*47. See Evidence of Children and Other Vulnerable Witnesses (Report 1991) at para 9.37-9.38; (Discussion Paper 1990) at para 5.3-5.5.
*48. Evidence Act 1929 (SA) s 13(1).
*49. Evidence Act 1929 (SA) s 13(4)(b).
*50. Youth Justice and Criminal Evidence Act 1999 (UK) s 34.
*51. Youth Justice and Criminal Evidence Act 1999 (UK) s 36.
*52. Youth Justice and Criminal Evidence Act 1999 (UK) s 38.
*53. Youth Justice and Criminal Evidence Act 1999 (UK) s 40.
*54. Youth Justice and Criminal Evidence Act 1999 (UK) s 39.
*55. R v Brown [1998] 2 Cr App R 364 (Lord Bingham).
*56. United Kingdom, Speaking Up for Justice: Report of the Interdepartmental Working Group on the Treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System (Home Office, 1998) at Recommendation 58.
*57. See New Zealand Law Commission, Evidence (Report 55, 1999) Vol 1 at para 414-419. See also The Evidence of Children and Other Vulnerable Witnesses: A Discussion Paper (Preliminary Paper 26, 1996) at para 177-182.
*58. New Zealand Law Commission, Evidence Code and Commentary s 95(1)-95(4).
*59. Evidence Code and Commentary s 95(5).
*60. Evidence Code and Commentary at C350.
*61. Evidence Code and Commentary s 95(6).
*62. Information supplied by K Belt, New Zealand Ministry of Justice (1 August 2002).
*63. Criminal Code, RSC 1985, c C46, s 486(2.3).
