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CRIMINAL PROCEDURE ACT 2009 - SECT 124

Leave required to cross-examine other witnesses

S. 124(1AA) inserted by No. 48/2018 s. 25(1).

    (1AA)     This section does not apply to a committal proceeding to which section 123 applies.

Note

Section 123 provides that there is to be no cross-examination in certain sexual offence cases.

S. 124(1) amended by No. 48/2018 s. 25(2).

    (1)     A witness cannot be cross-examined without leave being granted under this section.

S. 124(2) substituted by No. 55/2014 s. 109(1).

    (2)     In determining whether to grant leave to cross‑examine a witness, the Magistrates' Court may have regard to whether the informant consents to or opposes leave being granted.

S. 124(3) amended by No. 55/2014 s. 109(2).

    (3)     The Magistrates' Court must not grant leave to cross-examine a witness unless the court is satisfied that—

        (a)     the accused has identified an issue to which the proposed questioning relates and has provided a reason why the evidence of the witness is relevant to that issue; and

        (b)     cross-examination of the witness on that issue is justified.

    (4)     In determining whether cross-examination is justified, the Magistrates' Court must have regard to the need to ensure that—

        (a)     the prosecution case is adequately disclosed; and

        (b)     the issues are adequately defined; and

        (c)     the evidence is of sufficient weight to support a conviction for the offence with which the accused is charged; and

        (d)     a fair trial will take place if the matter proceeds to trial, including that the accused is able adequately to prepare and present a defence; and

        (e)     matters relevant to a potential plea of guilty are clarified; and

        (f)     matters relevant to a potential discontinuance of prosecution under section 177 are clarified; and

        (g)     trivial, vexatious or oppressive cross-examination is not permitted; and

        (h)     the interests of justice are otherwise served.

Notes to s. 124(4) inserted by No. 55/2014 s. 109(3).

Notes

1     Section 102 of the Evidence Act 2008 provides that credibility evidence about a witness is not admissible (the credibility rule ).

2     Section 103(1) of the Evidence Act 2008 provides that the credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness.

S. 124(5) amended by No. 38/2022 s. 62(1).

    (5)     In addition to the requirements of subsection (4), if the witness is a specified witness, the Magistrates' Court must have regard to—

        (a)     the need to minimise the trauma that might be experienced by the witness in giving evidence; and

        (b)     any relevant condition or characteristic of the witness, including age, culture, personality, education and level of understanding; and

        (c)     any mental, intellectual or physical disability to which the witness is or appears to be subject and of which the court is aware; and

        (d)     the importance of the witness to the case for the prosecution; and

        (e)     the existence or lack of evidence that corroborates the proposed evidence of the witness; and

        (f)     the extent of any proposed admissions; and

        (g)     the probative value of the proposed evidence of the witness; and

        (h)     the issues in dispute; and

              (i)     the weight of the proposed evidence of the witness; and

        (j)     any statements of other witnesses that contradict the proposed evidence of the witness.

S. 124(5A) inserted by No. 38/2022 s. 62(2).

    (5A)     In this section—

"specified witness" means—

        (a)     a child; or

        (b)     a person with a cognitive impairment; or

        (c)         a complainant in relation to a charge for—

              (i)     a sexual offence; or

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

S. 124(6) inserted by No. 55/2014 s. 109(4), repealed by No. 38/2022 s. 62(3).

    *     *     *     *     *

S. 124A inserted by No. 38/2022 s. 63.



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