R v MSK and Mak

(2004) 61 NSWLR 204; [2004] NSWCCA 308

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Constitutional Law (Cth)
2. › Chapter III
3. › State courts invested with federal jurisdiction
4. › Kable principle
5. › Whether State legislation vests functions in Supreme Court incompatible with exercise of federal judicial power
6. › Whether prohibition on self-represented accused cross-examining complainant in sexual offence proceedings undermines public confidence in impartial administration of justice
7. › Criminal Procedure Act 1986 (NSW), s 294A
1. Criminal Law
2. › Procedure
3. › Sexual offence proceedings
4. › Cross-examination of complainant
5. › Self-represented accused
6. › Prohibition on personal cross-examination
7. › Court-appointed questioner
8. › Whether prohibition renders trial unfair
9. › Criminal Procedure Act 1986 (NSW), s 294A
1. Criminal Law
2. › Procedure
3. › Fair trial
4. › Right to cross-examine
5. › Modification of common law rights by statute
6. › Whether departure from common law of criminal procedure necessarily unfair
7. › Whether Parliament may abrogate common law right to cross-examine
1. Constitutional Law (Cth)
2. › State legislative power
3. › Plenary power
4. › Whether international law can override valid domestic statute
5. › Constitution Act 1902 (NSW), s 5
6. › Australia Acts 1986, s 2

Quick Take

Section 294A of the Criminal Procedure Act 1986 (NSW), which prohibits self-represented defendants in sexual offence proceedings from personally cross-examining complainants, is constitutionally valid and does not render a trial unfair. The Kable principle does not invalidate general legislation of broad application that provides alternative mechanisms for testing evidence. Self-represented accused who decline both legal representation and the court-appointed questioner mechanism cannot complain of unfairness.