Leave required to cross-examine other witnesses

Current

S. 124(1AA) inserted by No. 48/2018 s. 25(1), substituted by No. 5/2025 s. 27.

(1AA)

This section does not apply to—

(a)

a committal proceeding to which section 123 applies; or

Note

Section 123(1) specifies proceedings in which the Magistrates' Court must not grant leave to cross-examine any witness.

(b)

a committal proceeding in which Part 4.6A requires the Magistrates' Court to commit the accused for trial in the Supreme Court.

Note

If Part 4.6A requires the Magistrates' Court to commit the accused for trial in the Supreme Court, there is to be no committal hearing at which cross-examination could occur—see section 100(1A)(b).

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—

S. 124(3)(a) amended by No. 5/2025 s. 12(1)(a).

(a)

the accused has identified an issue to which the proposed questioning relates; and

S. 124(3)(b) substituted by No. 5/2025 s. 12(1)(b).

(b)

cross-examination of the witness on the issue is directly and substantially relevant to that issue; and

S. 124(3)(c) inserted by No. 5/2025 s. 12(1)(b).

(c)

there are substantial reasons why, in the interests of justice, the witness should be cross-examined on that issue.

S. 124(4) amended by No. 5/2025 s. 12(2)(a).

(4)

In determining whether there are substantial reasons why, in the interests of justice, the witness should be cross-examined on an issue, 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

S. 124(4)(c) repealed by No. 5/2025 s. 4.

* * * * *

(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

S. 124(4)(g) amended by No. 5/2025 s. 12(2)(b).

(g)

trivial, vexatious or oppressive cross-examination is not permitted.

S. 124(4)(h) repealed by No. 5/2025 s. 12(2)(c).

* * * * *

Notes to s. 124(4) inserted by No. 55/2014 s. 109(3).

Notes

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.

S. 124(5) amended by No. 38/2022 s. 62(1).

(5)

In addition to the requirements of subsection (4), if the witness is a specified witness, 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(5A) inserted by No. 38/2022 s. 62(2).

(5A)

In this section—

S. 124(5A) def. of specified witness amended by No. 5/2025 s. 12(3).

specified witness means—

(a)

a child; or

(b)

a person with a cognitive impairment.

* * * * *

S. 124(6) inserted by No. 55/2014 s. 109(4), repealed by No. 38/2022 s. 62(3).

* * * * *

This Act’s bill:Explanatory memorandum Second reading speech

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124 Leave required to cross-examine other witnesses