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  • Writer's pictureGeoff Harrison

Unrepresented Accused and Questioning of Complainants

Updated: Aug 17, 2023



Published by Geoff Harrison | 16 August 2023


Sections such as ss289VA, 294A, 306ZL of the Criminal Procedure Act 1986 and s41A of the Crimes (Domestic and Personal Violence) Act 2007 are provisions that prevent an accused from directly questioning a complainant in a prescribed sexual offence, a vulnerable person, a domestic violence offence or a child witness for an apprehended domestic violence order. From the Bench Book regarding self-represented accuseds:


The legitimacy of such provisions with respect to sexual assault complainants was confirmed in R v MSK & MAK (2004) 61 NSWLR 204, where it was recognised at [69]:


The use by [the self-represented accused] of the opportunity to confront and to challenge his alleged victim personally and directly risks diverting the integrity of the judicial process, insofar as it is likely to intimidate the complainant to the point where he or she is unable to give a coherent and rational account of what truthfully occurred. The threat of its occurrence may also discourage a victim of sexual assault from giving evidence or even from making an initial complaint.


A useful resources is the: National Domestic and Family Violence Bench Book (other than the terminology used such as perpertrator and victim when it is advice for matters that are before the court hence, neither of the terms are appropriate).


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CRIMINAL PROCEDURE ACT 1986 - SECT 294A


Arrangements for complainant in prescribed sexual offence proceedings giving evidence when accused person is unrepresented


(1) This section applies to proceedings in respect of a prescribed sexual offence during which the accused person is not represented by an Australian legal practitioner.


(2) The complainant cannot be examined in chief, cross-examined or re-examined by the accused person, but may be so examined instead by a person appointed by the court.


(3) The person appointed by the court is to ask the complainant only the questions that the accused person requests that person to put to the complainant.


(4) Any such person, when acting in the course of an appointment under this section, must not independently give the accused person legal or other advice.


(5) The court does not have a discretion to decline to appoint a person under this section, despite anything to the contrary in section 306ZL or any other Act or law.


(6) This section applies whether or not closed-circuit television facilities or other similar technology (or alternative arrangements) are used by the complainant to give evidence.


(7) If such a person is appointed in proceedings before a jury, the judge must--

(a) inform the jury that it is standard procedure in such cases to appoint the person to put the questions to the complainant, and

(b) warn the jury not to draw any inference adverse to the accused person or to give the evidence any greater or lesser weight because of the use of that arrangement.


(8) This section extends to proceedings instituted before the commencement of this section, including proceedings that have been partly heard.


(9) Any thing done or omitted to be done by a person who--

(a) is appointed under this section, and

(b) is an Australian lawyer,

when acting in the course of the appointment or otherwise in accordance with this section does not, if the thing was done or omitted to be done in good faith, subject the person personally to any action, liability, claim or demand.


CRIMINAL PROCEDURE ACT 1986 - SECT 289VA

Arrangements for complainant giving evidence in proceedings for domestic violence offence when accused person is unrepresented


(1) This section applies to proceedings during which the accused person is not represented by an Australian legal practitioner.


(2) A complainant cannot be directly examined in chief, cross-examined or re-examined by the accused person, but may instead be examined--

(a) by a person appointed by the court, or

(b) through the use of court technology.


(3) For the purposes of subsection (2), the regulations may prescribe the following--

(a) a class of person who may be appointed by the court,

(b) the type of technology that is suitable for use,

(c) the procedures that apply for asking questions of the complainant.


(4) A person appointed by the court is to ask the complainant only the questions that the accused person requests that the person put to the complainant.


(5) A person acting in the course of an appointment under this section must not independently give the accused person legal or other advice.


(6) The court does not have a discretion to decline to appoint a person under this section, or to decline the use of court technology under this section, despite anything to the contrary in section 306ZL or another Act or law.


(7) This section applies whether or not an audio visual link or other similar technology, or alternative arrangements, are used by the complainant to give evidence.


(8) If a person is appointed in proceedings before a jury, or court technology is used, the Judge must--

(a) inform the jury that it is standard procedure in these cases to appoint a person or use technology to put the questions to the complainant, and

(b) warn the jury not to draw any inference adverse to the accused person or to give the evidence any greater or lesser weight because of the arrangement.


(9) This section extends to proceedings instituted before the commencement of this section, including proceedings that have been partly heard.


(10) If a person appointed under this section is an Australian lawyer, anything done or omitted to be done when acting in the course of the appointment or otherwise in accordance with this section does not, if the thing was done or omitted to be done in good faith, subject the person personally to any action, liability, claim or demand.


CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 - SECT 41A

Questioning child witness in apprehended domestic violence order proceedings


(1) A child who appears as a witness in any of the following proceedings cannot be questioned by a defendant directly but only by the defendant's Australian legal practitioner or other Australian legal practitioner or a suitable person appointed by the court--

(a) proceedings in which an apprehended domestic violence order is sought or proposed to be made,

(b) proceedings in relation to an application for the variation or revocation of an apprehended domestic violence order.


(2) This section applies in addition to the protections set out in section 41.


CRIMINAL PROCEDURE ACT 1986 - SECT 306ZL Vulnerable persons have a right to alternative arrangements for giving evidence when accused is unrepresented


CRIMINAL PROCEDURE ACT 1986 - SECT 306ZL


Vulnerable persons have a right to alternative arrangements for giving evidence when accused is unrepresented


(1) This section applies to a criminal proceeding in any court, or a civil proceeding arising from the commission of a personal assault offence, in which the accused or defendant is not represented by an Australian legal practitioner.


(2) A vulnerable person who is a witness (other than the accused or the defendant) in a proceeding to which this section applies is to be examined in chief, cross-examined or re-examined by a person appointed by the court instead of by the accused or the defendant.


(3) If any such person is appointed, that person is to ask the vulnerable person only the questions that the accused or the defendant requests the person to put to the vulnerable person.


(4) A person appointed under this section, when acting in the course of his or her appointment, must not independently give the accused or the defendant legal or other advice.


(5) The court may choose not to appoint such a person if the court considers that it is not in the interests of justice to do so.


(6) This section applies whether or not closed-circuit television facilities or other similar technology is used to give evidence, and whether or not alternative arrangements under section 306ZH are used in the proceedings.


(7) Anything done or omitted to be done by a person who--

(a) is appointed under this section, and

(b) is an Australian legal practitioner,

when acting in the course of the appointment or otherwise in accordance with this section does not, if the thing was done or omitted to be done in good faith, subject the person personally to any action, liability, claim or demand.



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