Cross-examination is a feature of the adversarial process and designed, among other things, to allow the defence to confront and undermine the prosecution’s case by exposing deficiencies in a witness’ testimony, including the complainant’s testimony. Under the common law, the uniform Evidence Acts and other legislation, limitations have been placed on inappropriate and offensive questioning under cross-examination., It has been argued, however, that the effect of these provisions in practice has not provided a sufficient degree of protection for complainants in sexual offence proceedings.
Every Australian jurisdiction, with the exception of Tasmania, has enacted legislation to place restrictions on the cross-examination of complainants in sexual offence proceedings by unrepresented defendants. In some jurisdictions this protection is only afforded to child complainants and child witnesses. In other jurisdictions it has application beyond sexual offences, and applies to a broader range of legal proceedings and/or a wider class of witnesses. In Western Australia the court’s power to prohibit personal cross-examination by the defendant is discretionary (albeit for a wider class of witness across a range of criminal proceedings). Where these limits operate, various mechanisms have been put in place to allow cross-examination on behalf of the defendant.
Two issues arise in relation to these provisions:
- whether the protection applies to witnesses other than sexual assault complainants or alleged victims and whether it applies in other legal proceedings; and
- who asks the questions on behalf of the unrepresented defendant and whether that person has any role or responsibility in providing advice to the defendent.
The Commissions propose that Commonwealth, state and territory governments legislate to prohibit an unrepresented defendant from personally cross-examining any complainant or other witness in any sexual offence proceeding.
In the Commissions’ view, it is inappropriate to allow judicial officers to ask questions on behalf of defendants—as is currently the case in the Northern Territory and Western Australia. This places judicial officers in a difficult position in relation to determining the admissibility of the questions, and may raise perceptions of bias.
The Commissions prefer the approach adopted in Victoria and Queensland, where the person who asks the questions must be a legal practitioner representing the interests of the defendant. The Commissions note that the advantages of legal practitioner involvement include benefits associated with the professional duty the lawyer owes to the court and the client; the skills that lawyers bring to this work in terms of understanding the rules of evidence; the public interest in testing the evidence presented by the witness; and in addressing the imbalance between the prosecution and an unrepresented defendant.
Proposal 18–14 Commonwealth, state and territory legislation should:
- prohibit an unrepresented defendant from personally cross-examining any complainant or other witness in sexual assault proceedings; and
- provide that any person conducting such cross-examination is a legal practitioner representing the interests of the defendant.
 See New South Wales Law Reform Commission, Questioning of Complainants by Unrepresented Accused in Sexual Offence Trials, Report No 101 (2003), [5.7]–[5.10].