Northern Territory Numbered Acts Northern Territory Numbered ActsSection 114
repeal, insert
(1) This section applies if, in an examination of witnesses or a trial, a defendant is not represented by a legal practitioner and the defendant wishes to cross-examine:
(a) a vulnerable witness; or
(b) any other witness who is in a domestic relationship with the defendant.
(2) The defendant is not entitled to cross-examine the witness directly unless the court grants leave.
(3) The court cannot grant leave under subsection (2) if the witness is a child or has a cognitive impairment or an intellectual disability.
(4) The court must not grant leave under subsection (2) unless satisfied that the witness's ability to testify under cross-examination will not be adversely affected if the defendant conducts the cross-examination.
(5) In considering whether the witness's ability to testify will be adversely affected, the court must have regard to any trauma or distress that could be caused if the defendant conducts the cross-examination.
(6) In considering whether to grant leave under subsection (2), the court must not require the witness to give evidence about the matters mentioned in subsections (4) and (5).
(1) This section applies if the court does not grant leave under section 114(2).
(2) The court must, as soon as practicable, explain to the defendant:
(a) the prohibition against directly cross-examining the witness and the effect of the prohibition; and
(b) that if the defendant does not cross-examine the witness, the defendant will not be permitted to adduce evidence in relation to a fact in issue in order to contradict the evidence of the witness; and
(c) that the defendant can arrange for a legal practitioner to cross-examine the witness on the defendant's behalf; and
(d) that the defendant must notify the court of the name of the arranged legal practitioner by a date specified by the court; and
(e) that if the defendant does not wish to make such an arrangement, or if the defendant fails to notify the court of the name of a legal practitioner by the date specified:
(i) the court will decide whether it is necessary in the interests of justice to appoint a legal practitioner to cross-examine the witness for the defendant; and
(ii) if the court decides that it is necessary – the court may appoint a legal practitioner to cross-examine the witness for the defendant, or make any other order the court considers necessary.
(3) If the defendant does not wish to make such an arrangement, or if the defendant fails to notify the court of the name of a legal practitioner by the date specified:
(a) the court must decide whether it is necessary in the interests of justice to appoint a legal practitioner to cross-examine the witness for the defendant; and
(b) if the court decides that it is necessary – the court may appoint a legal practitioner (the appointed person ) to cross-examine the witness for the defendant, or make any other order the court considers necessary.
(4) If the defendant wishes to cross-examine a witness mentioned in section 114(1), the defendant must put any question to the appointed person and the appointed person must put the question to the witness, unless the appointed person considers the question to be improper.
Notes for subsection (4)
1 The appointed person need not use the exact same words as the defendant when putting a question.
2 The court can also rule that a question is improper and need not be answered – see section 41(2) of the Evidence (National Uniform Legislation) Act 2011 .
3 See section 41(3) of the Evidence (National Uniform Legislation) Act 2011 for the meaning of "improper question".
(5) If the defendant does not give any instructions to an appointed person, the appointed person must act in the best interests of the defendant.
(6) A person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith as an appointed person for this section.
If a defendant cross-examines a witness through an appointed person, the court must issue a warning to the jury (if any) to the effect that:
(a) the procedure is a routine practice of the court; and
(b) no adverse inference is to be drawn against the defendant as a result of the use of the arrangement; and
(c) the evidence of the witness is not to be given any greater or lesser weight because of the use of the arrangement.