Cross-examination

Where a self-represented perpetrator wishes to cross-examine the victim, the victim’s capacity to give evidence or the quality of the victim’s evidence in these circumstances may be compromised by the victim’s fear of the perpetrator and, as a consequence, the probative value of the evidence may be diminished or negated.

In some cases a perpetrator may even choose to be self-represented hoping to secure the opportunity to directly cross-examine the victim.

These scenarios should be understood in the context of the complex dynamics of domestic and family violence characterised by a pattern of abusive behaviour involving a perpetrator’s exercise of control over the victim, often for an extended period. Where a self-represented perpetrator uses direct cross-examination to further abuse the victim through court processes, the victim may experience a form of secondary abuse. Recent changes to state and territory legislation address this issue, by, in certain circumstances, restricting a perpetrator’s right to directly cross-examine the victim in domestic and family violence related court proceedings. The nature and extent of these restrictions vary across the state and territory jurisdictions, as summarised below.

State/Territory Legislation Section Restriction on cross-examination
Australian Capital Territory Family Violence Act 2016 63

Under s 63(2), a self-represented respondent cannot examine an affected person personally in a proceeding for a family violence order. An affected person includes any child who hears, witnesses or is otherwise exposed to family violence committed againast another person.

Under s 63(4)(a), the court may appoint a person to examine an affected person on the respondent’s behalf.
New South Wales Crimes (Domestic and Personal Violence) Act 2007 41A Under s 41A (1), a child witness in apprehended domestic violence order proceedings cannot be questioned directly by the defendant. The child can only be questioned by a legal practitioner or a suitable person appointed by the court.
Northern Territory Domestic and Family Violence Act 2007 114

Under s 114(2)-(3) the Court may order that a self-represented defendant can only question a witness who is in a domestic relationship with the defendant through an appointed person.

Under s 114(3A), the appointed person for the defendant is a person appointed by the Court for the purpose of this questioning.
Queensland Domestic and Family Violence Protection Act 2012 151

Under s 151(2), the court may order that an unrepresented respondent may not cross-examine a protected witness in person if the court is satisfied that the cross-examination is likely to cause the protected witness to-

  1. Suffer emotional harm or distress;
  2. Be so intimidated as to be disadvantaged as a witness.
Under s 151(3), if the protected witness is a child, the court must make an order that the unrepresented respondent may not cross-examine the child in person.
South Australia Intervention Orders (Prevention of Abuse) Act 2009 29

Under s 29(4)(b), the defendant cannot directly cross-examine a person against whom it is alleged they have committed, or might commit, an act of abuse or a child exposed to the effects of an alleged act of abuse by the defendant. Cross-examination is to be by the defendant’s counsel, or if unrepresented, the defendant must submit their proposed questions of the witness to the Court, and the Court will ask the witness such questions as the Court determines allowable.

See also section 13B Evidence Act 1929 (SA).
Tasmania Family Violence Act 2004 31

S 31(2B) provides that s 8A of the Evidence (Children and Special Witnesses) Act 2001 applies to the cross-examination of an alleged victim in a proceeding for a family violence offence.

Under s 8A, an unrepresented defendant cannot cross-examine an alleged victim in these circumstances.
Victoria Family Violence Protection Act 2008 70 Under s 70(3) a protected witness cannot be personally cross-examined by the respondent unless
  1. The protected witness is an adult; and
  2. The protected witness consents to being cross-examined by the respondent; and
  3. If the protective witness has a cognitive impairment, the court is satisfied the protected witness understands the nature and consequences of giving consent; and
  4. The court decides that it would not have a harmful impact on the protected witness.
Western Australia Restraining Orders Act 1997 44C and 53D

Under s 44C, an unrepresented respondent cannot directly cross-examine a person with whom they are in a family relationship or imagined personal relationship. The unrepresented respondent may put the question to a judicial officer or a person approved by the Court who is to repeat the question to the person being cross-examined.

Under s 53D, an unrepresented person cannot directly cross-examine a child who has given oral evidence. The unrepresented person may put the question to a judicial officer or a person approved by the Court who is to repeat the question to the child.