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EVIDENCE ACT 2008 - SECT 41

Improper questions

    (1)     The court may disallow an improper question or improper questioning put to a witness in cross-examination, or inform the witness that it need not be answered.

    (2)     The court must disallow an improper question or improper questioning put to a vulnerable witness in cross-examination, or inform the witness that it need not be answered, unless the court is satisfied that, in all the relevant circumstances of the case, it is necessary for the question to be put.

    (3)     In this section, improper question or improper questioning means a question or a sequence of questions put to a witness that—

        (a)     is misleading or confusing; or

        (b)     is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or

        (c)     is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or

        (d)     has no basis other than a stereotype (for example, a stereotype based on the witness's sex, race, culture, ethnicity, age or mental, intellectual or physical disability).

    (4)     For the purposes of subsection (2) a witness is a vulnerable witness if the witness—

        (a)     is under the age of 18 years; or

        (b)     has a cognitive impairment or an intellectual disability; or

        (c)     is a witness whom the court considers to be vulnerable having regard to—

              (i)     any relevant condition or characteristic of the witness of which the court is, or is made aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality; and

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

              (iii)     the context in which the question is put, including—

    (A)     the nature of the proceeding; and

    (B)     in a criminal proceeding—the nature of the offence to which the proceeding relates; and

    (C)     the relationship (if any) between the witness and any other party to the proceeding.

    (5)     A question is not an improper question merely because—

        (a)     the question challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness; or

        (b)     the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness.

    (6)     A party may object to a question put to a witness on the ground that it is an improper question.

    (7)     However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question.

    (8)     A failure by the court to disallow a question under this section, or to inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question.

Notes

1     A person must not, without the express permission of a court, print or publish any question that the court has disallowed under this section—see section 195.

2     Section 41 differs from the Commonwealth Act and New South Wales Act.



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