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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.


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).


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.

    (5)     In addition to the requirements of subsection (4), if the witness is under 18 years of age, 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(6) inserted by No. 55/2014 s. 109(4).

    (6)     If the Magistrates' Court grants leave to cross-examine a witness, the court must identify each issue on which the witness may be cross-examined.

Part 4.6—Committal mention and case conference

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