Victorian Consolidated Legislation

Evidence Act 1958 - SECT 37CA

Special rules for cross-examination of protected witnesses

37CA. Special rules for cross-examination of protected witnesses





(1) This section applies to a legal proceeding that relates (wholly or partly)
to a charge-

   (a)  for a sexual offence; or

   (b)  for an offence where the conduct constituting the offence consists of
        family violence within the meaning of the
        Family Violence Protection Act 2008.

(2) In this section-

family member, in relation to the complainant or accused person, includes-

   (a)  a person who is or has been married to the complainant or accused
        person; and

   (b)  a person who has or has had an intimate personal relationship with the
        complainant or accused person; and

   (c)  a person who is or has been the father, mother, step-father or
        step-mother of the complainant or accused person; and

   (d)  a child who normally or regularly resides with the complainant or
        accused person; and

   (e)  a guardian of the complainant or accused person; and

   (f)  another person who is or has been ordinarily a member of the household
        of the complainant or accused person;

protected witness means-

   (a)  the complainant; or

   (b)  a family member of the complainant; or

   (c)  a family member of the accused person; or

   (d)  any other witness whom the court declares under subsection (3) to be a
        protected witness.

(3) The court may at any time declare a witness to be a protected witness.

(4) A protected witness must not be personally cross-examined by the accused
person.

(5) If the accused person is not legally represented, the court must-

   (a)  inform the accused person and the jury (if any) that the accused
        person is not permitted personally to cross-examine a protected
        witness; and

   (b)  ask the accused person whether he or she has sought to obtain legal
        representation for the cross-examination of a protected witness; and

   (c)  if satisfied that the accused person has not had a reasonable
        opportunity to obtain legal representation, grant an adjournment if so
        requested by the accused person.

(6) If the accused person does not obtain legal representation for the
cross-examination of a protected witness (after being given a reasonable
opportunity to do so), the court must order Victoria Legal Aid to provide
legal representation for the accused person for that purpose.

(7) Despite anything in the Legal Aid Act 1978, Victoria Legal Aid must
provide legal representation in accordance with an order under subsection (6).



(8) A legal practitioner provided by Victoria Legal Aid must act in the best
interests of the accused person if the accused person does not give any
instructions to that legal practitioner.

(9) If the accused person refuses the legal representation provided to him or
her in accordance with subsection (7), or otherwise refuses to co-operate, the
court must warn the accused person that he or she will not be permitted to
adduce evidence from a witness in relation to a fact in issue with the
intention of contradicting the evidence of a protected witness in relation to
that fact, if the fact upon which he or she intends to rely to contradict the
evidence of the protected witness has not been put to that protected witness
during cross-examination.

(10) If the accused person is only legally represented for the
cross-examination of a protected witness the court must warn the jury (if
any)-

   (a)  that it is routine practice for an unrepresented accused person to
        obtain or be provided with legal representation for the
        cross-examination of a protected witness; and

   (b)  that no adverse inference may be drawn against the accused person as a
        result of the cross-examination not being conducted by the accused
        personally; and

   (c)  that the evidence given under cross-examination is not to be given any
        greater or lesser weight as a result of the cross-examination not
        being conducted by the accused personally.