CRIMES (SEXUAL OFFENCES) ACT 2006 (NO 2 OF 2006) - SECT 35 New section 37CA inserted
CRIMES (SEXUAL OFFENCES) ACT 2006 (NO 2 OF 2006) - SECT 35
New section 37CA insertedAfter section 37C of the Evidence Act 1958 insert —
'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 for a sexual offence.
(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 sub-section (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 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 sub-section (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 sub-section (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—
(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.'.