Victorian Numbered Acts

JUSTICE LEGISLATION MISCELLANEOUS AMENDMENT ACT 2018 (NO. 48 OF 2018) - SECT 31

After section 198 of the Criminal Procedure Act 2009 insert —

        " 198A     Order for accused to cross-examine witness before trial in certain sexual offence cases

    (1)     This section applies to a criminal proceeding to which section 123 applies.

    (2)     At any time except during trial, an accused may apply to the court for an order under this section that the accused cross-examine a witness other than a complainant at a time and place fixed by the court.

    (3)     An application under subsection (2) must state—

        (a)     each issue for which leave to cross-examine is sought; and

        (b)     the reason why the evidence of the witness is relevant to the issue; and

        (c)     the reason why cross-examination of the person on the issue is justified.

    (4)     The court must not make the order sought in the application 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.

    (5)     In determining whether cross-examination is justified, the court—

        (a)     must have regard to the need to ensure the matters set out in section 124(4); and

        (b)     may have regard to whether the prosecution consents to or opposes the order being made.

    (6)     In addition, if the witness is under 18 years of age, the court must have regard to the matters set out in section 124(5).

    (7)     If the court makes the order sought in the application, the court must identify each issue on which the witness may be cross-examined.

        198B     Order for accused to conduct limited preparatory cross-examination

    (1)     An accused may apply to the court for an order under this section that the accused cross-examine a witness at a time and place fixed by the court.

    (2)     An application under subsection (1) must state—

        (a)     the issue to which the proposed questioning relates; and

        (b)     the purpose of the proposed questioning.

    (3)     The court must not make the order sought in the application unless the court is satisfied that it is necessary to do so in order to avoid a serious risk that the trial would be unfair.

    (4)     In determining whether it is necessary to make the order sought in the application in order to avoid a serious risk that the trial would be unfair, the court must have regard to—

        (a)     the purposes of a committal proceeding as set out in section 97; and

        (b)     the limitations that apply in relation to cross-examination of a witness at a committal hearing.

    (5)     If the court makes the order sought in the application, the prosecution may re-examine a witness who is cross-examined in accordance with the order.

    (6)     This section applies—

        (a)     before trial; and

        (b)     during trial.

    (7)     During trial—

        (a)     an application for an order under this section must be heard in the absence of the jury; and

        (b)     any cross-examination or re-examination in accordance with an order under this section, must be conducted in the absence of the jury.

        198C     Abolition of Basha procedure

The common law procedure of an accused cross-examining a witness to enable the accused to adequately prepare and present a defence is abolished.

Note

This provision abolishes the procedure of holding a hearing of the kind attributed to R v Basha (1989) 39 A Crim R 337.".

Division 3—Admission of recorded evidence in sexual offence cases