Victorian Current Acts Victorian Current ActsS. 124(1AA) inserted by No. 48/2018 s. 25(1).
(1AA) This section does not apply to a committal proceeding to which section 123 applies.
Note
Section 123 provides that there is to be no cross-examination in certain sexual offence cases.
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—
(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.
(4) In determining whether cross-examination is justified, 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
(c) the evidence is of sufficient weight to support a conviction for the offence with which the accused is charged; and
(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
(g) trivial, vexatious or oppressive cross-examination is not permitted; and
(h) the interests of justice are otherwise served.
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—
"specified witness" means—
(a) a child; or
(b) a person with a cognitive impairment; or
(c) a complainant in relation to a charge for—
(i) a sexual offence; or
(ii) an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008 .
S. 124(6) inserted by No. 55/2014 s. 109(4), repealed by No. 38/2022 s. 62(3).
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S. 124A inserted by No. 38/2022 s. 63.