![]() ![]() The discussion then turns to the question of whether to strengthen the test for granting leave to cross-examine witnesses to whom prohibitions do not apply. ![]() the test for leave to cross-examine witnesses in the lower courts needs to be strengthened.ġ1.8 The question of whether to expand existing prohibitions on cross-examination is addressed in the next part of the chapter.existing prohibitions on cross-examining certain classes of witness in the lower courts should be expanded.This conclusion leaves open the questions of whether: early resolution and narrowing of the issues in dispute.ġ1.7 The Commission concludes that cross-examination in the lower courts should be retained because of its importance for disclosure, early resolution and narrowing the issues in dispute.the trauma associated with cross-examination for victims and witnesses. ![]() The focus here is on forms of cross-examination that do not preclude or substitute for cross-examination during a trial.ġ1.6 The discussion then addresses the question of whether there exists ‘a culture of pre-trial cross-examination’ in Victoria before turning to consider the major issues associated with cross-examination in the lower courts: The DPP’s rejection of disclosure as a legitimate purpose of cross-examination is considered under the heading ‘Cross-examination and disclosure’ below.ġ1.5 This chapter explains the situations in which pre-trial cross-examination is currently available, either during a committal hearing or prior to trial in the jurisdiction of the higher courts. ġ1.4 While the DPP supported retaining the ability to cross-examine some witnesses in the lower courts in limited circumstances, it did not view disclosure as a legitimate purpose of cross-examination: ‘Disclosure, in its legal sense, does not include cross-examination of witnesses’. These stakeholders also regarded the committal hearing as a source of delay that unnecessarily duplicated higher court pre-trial and trial processes. In addition to cross-examination being intrinsically stressful, having to be cross-examined more than once-during committal or other pre-trial procedures and again at trial-may be an additional source of trauma. ġ1.3 On the other hand, Victoria Police, the Victims of Crime Commissioner, CASA Forum, Domestic Violence Victoria, and the Director of Public Prosecutions (DPP) told the Commission that cross-examination during committal proceedings can be unnecessarily traumatic for victims and witnesses. ![]() They argued that abolishing cross-examination in the lower courts would significantly reduce the number of cases that resolve, either summarily or as a plea of guilty to an indictable offence, at a relatively early stage. Victoria Legal Aid, the Criminal Bar Association and the Magistrates’ Court of Victoria advised that full disclosure is sometimes impossible without cross-examination during committal proceedings. ġ1.2 Some stakeholders told the Commission the opportunity to cross-examine in the lower courts was fundamental to ensuring adequate disclosure and therefore a fair trial. Pre-trial cross-examination Introductionġ1.1 The ability to cross-examine some witnesses during committal proceedings was one of the most polarising issues raised during the consultation process. ![]()
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