Northern Territory Numbered Acts

EVIDENCE AND OTHER LEGISLATION AMENDMENT ACT 2020 (NO 3 OF 2020) - SECT 28

Section 5

repeal, insert

5     Leave required for unrepresented defendant to cross-examine complainant

    (1)     In an examination of witnesses or a trial, a defendant who is not represented by a legal practitioner is not entitled to cross-examine the complainant directly.

    (2)     The court must, as soon as practicable, explain to the defendant:

    (a)     the prohibition against directly cross-examining the complainant and the effect of the prohibition; and

    (b)     that if the defendant does not cross-examine the complainant, the defendant will not be permitted to adduce evidence in relation to a fact in issue in order to contradict the evidence of the complainant; and

    (c)     that the defendant can arrange for a legal practitioner to cross-examine the complainant 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 complainant for the defendant; and

        (ii)     if the court decides that it is necessary – the court may appoint a legal practitioner to cross-examine the complainant 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 complainant 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 complainant for the defendant, or make any other order the court considers necessary.

    (4)     If the defendant wishes to cross-examine the complainant, the defendant must put any question to the appointed person and the appointed person must put the question to the complainant, 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.

5A     Warning

If a defendant cross-examines a complainant 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 complainant is not to be given any greater or lesser weight because of the use of the arrangement.