Committals: Report

11. Pre-trial cross-examination

Introduction

11.1 The ability to cross-examine some witnesses during committal proceedings was one of the most polarising issues raised during the consultation process.[700]

11.2 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. Victoria Legal Aid,[701] the Criminal Bar Association[702] and the Magistrates’ Court of Victoria[703] advised that full disclosure is sometimes impossible without cross-examination during committal proceedings. 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.[704]

11.3 On the other hand, Victoria Police,[705] the Victims of Crime Commissioner,[706] CASA Forum,[707] Domestic Violence Victoria,[708] and the Director of Public Prosecutions[709] (DPP) told the Commission that cross-examination during committal proceedings can be unnecessarily traumatic for victims and witnesses. 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. These stakeholders also regarded the committal hearing as a source of delay that unnecessarily duplicated higher court pre-trial and trial processes.[710]

11.4 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’.[711] The DPP’s rejection of disclosure as a legitimate purpose of cross-examination is considered under the heading ‘Cross-examination and disclosure’ below.

11.5 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. The focus here is on forms of cross-examination that do not preclude or substitute for cross-examination during a trial.

11.6 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 trauma associated with cross-examination for victims and witnesses

• disclosure

• early resolution and narrowing of the issues in dispute.

11.7 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. This conclusion leaves open the questions of whether:

• existing prohibitions on cross-examining certain classes of witness in the lower courts should be expanded

• the test for leave to cross-examine witnesses in the lower courts needs to be strengthened.

11.8 The question of whether to expand existing prohibitions on cross-examination is addressed in the next part of the chapter. 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 Commission recommends limited expansion of existing prohibitions on cross-examination in the lower courts. It also recommends measures to:

• ensure the test for leave to cross-examine is applied consistently

• require that additional criteria for leave, including the need to minimise trauma, are met for witnesses with cognitive impairments, and victims in cases involving sexual or family violence.

11.9 It is now well recognised that the criminal justice system has failed in the past to adequately protect victims. Cross-examination in the lower courts is a particularly contentious issue and it causes distress and sometimes trauma for victims.

11.10 The final part of the chapter outlines how some trauma-informed approaches are being implemented in criminal proceedings; the services available for victims and witnesses; and the measures courts can take to reduce trauma for victims and witnesses. Combined with its other recommendations for limiting cross-examination and strengthening judicial oversight, the Commission concludes that these initiatives will assist in protecting victims from harm and promoting a culture of respect for victims within the criminal justice system. To further support and entrench such a culture, the Commission makes additional recommendations to expand the availability of intermediaries and to clarify courts’ existing powers to order alternative arrangements for giving evidence.

Pre-trial cross-examination in the present system

11.11 In indictable stream matters, cross-examination may occur:

• during a committal hearing

• in the trial court before a trial commences

• during trial.[712]

Cross-examination during committal proceedings

Leave to cross-examine witnesses

11.12 In order to cross-examine a witness at a committal hearing, the defence must apply for leave of the court.

11.13 Historically there was no leave requirement. When initially enacted, the Magistrates’ Court Act 1989 (Vic) merely required an accused to notify the court of their intention to cross-examine a witness during the committal proceeding.[713] The court could prevent cross-examination if it was considered ‘frivolous, vexatious or oppressive in all the circumstances’.[714]

11.14 In 2000, a test for leave was introduced.[715] The introduction of the test acknowledged the harm that cross-examination can cause and recognised the need to better protect victims and other witnesses.

11.15 When the Criminal Procedure Act 2009 (Vic) (CPA) was enacted in 2009 it adopted the test contained in the Magistrates’ Court Act.[716]

11.16 Before leave to cross-examine a witness is granted, the court must be satisfied that:

• the accused has identified an issue to which the proposed questioning relates[717]

• the accused has provided a reason why the evidence of the witness is relevant to that issue[718]

• cross-examination of the witness on that issue is justified.[719]

11.17 In determining whether cross-examination on an issue is justified, the court must have regard under section 124(4) of the CPA to the need to ensure that:

• the prosecution case is adequately disclosed

• the issues are adequately defined

• the evidence is of sufficient weight to support a conviction for the offence with which the accused is charged

• a fair trial will take place if the matter proceeds to trial—this includes ensuring that the accused is able to prepare and present a defence

• matters relevant to a potential plea of guilty are clarified

• matters relevant to a potential discontinuance of prosecution … are clarified

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

• the interests of justice are otherwise served.[720]

11.18 If the witness is a child, the court must consider additional matters, including the need to minimise the trauma that might be experienced by the witness in giving evidence.[721]

11.19 When deciding whether to grant leave to cross-examine, the court may have regard to whether the informant consents to or opposes leave being granted.[722]

11.20 If leave is granted, the court must identify each issue on which the witness may be cross-examined.[723] The scope of the cross-examination is limited to the issues identified.[724]

11.21 Despite the requirement to identify each issue on which a witness may be cross-examined, a magistrate has the power to grant leave during a committal hearing to cross-examine a witness on an issue not previously identified.[725] A magistrate cannot grant leave to cross-examine on any new issues unless satisfied that the witness’s evidence is relevant to the issue and the cross-examination is justified on the same grounds as apply to the original grant of leave to cross-examine.[726]

Pre-trial cross-examination in the higher courts

Sexual offence cases where the complainant was a child or person with a cognitive impairment when proceedings commenced

11.22 Pursuant to section 123 of the CPA, a magistrate must not grant leave during committal proceedings to cross-examine the complainant or any other witnesses in cases involving a sexual offence where the complainant was a child or person with a cognitive impairment when the proceedings commenced.

11.23 Complainants in these cases can be cross-examined once only over the course of the criminal proceeding, and only if the matter is listed for trial. The cross-examination occurs during a special hearing in the trial court.[727]

11.24 In section 123 cases, the defence may apply in the higher courts for leave under section 198A to cross-examine witnesses other than the complainant prior to trial.

11.25 The prohibition in section 123 on cross-examining any witnesses during committal proceedings, and the provision in section 198A allowing for pre-trial cross-examination in the higher courts of witnesses other than the complainant, took effect in March 2019. The amendments were introduced to create greater contemporaneity between the cross-examination for trial purposes of complainants in these cases and the pre-trial cross-examination, if any, of other witnesses. Then Attorney-General Martin Pakula said the amendments were designed to reduce delay and allow ‘the trial court to conduct more case management of these matters’.[728]

11.26 Before leave to cross-examine a witness under section 198A is granted, the court must be satisfied that:

• the accused has identified an issue to which the proposed questioning relates

• the accused has provided a reason the evidence of the witness is relevant to that issue

• cross-examination of the witness on that issue is justified.[729]

11.27 In determining whether cross-examination is justified, the court must have regard to the criteria set out in section 124(4) of the CPA, including the need to ensure that the prosecution case is adequately disclosed.[730] If the witness is a child, the court must also have regard to the criteria set out in section 124(5).[731] The court may have regard to whether the prosecution consents to the order for cross-examination being made.[732]

11.28 If the court makes an order for cross-examination under section 198A, the court must identify each issue on which the witness may be cross-examined.

Section 198B (formerly Basha hearings)

11.29 Section 198B of the CPA codifies hearings previously known as ‘Basha hearings’.[733] The trial court is able to order cross-examination of a witness prior to trial if satisfied that it is necessary to avoid a serious risk that the trial would be unfair.[734] As with section 198A, the court must consider the criteria in section 124(4) of the CPA before making an order under section 198B.[735]

Voir dire

11.30 A witness may be cross-examined prior to trial in the course of a voir dire hearing. The purpose of a voir dire hearing is to allow the court to determine questions of law, often related to whether a witness’s evidence is admissible or should be rejected on discretionary grounds.[736]

Cross-examination in the lower courts

11.31 This section considers the claim that Victoria has a culture of pre-trial cross-examination. The discussion then turns to consideration of three issues raised during consultations:

• trauma for victims and witnesses

• the importance of cross-examination for disclosure

• the contribution of cross-examination to early resolution or narrowing the issues in dispute.

Does Victoria have a culture of pre-trial cross-examination?

11.32 The DPP submitted that Victoria has a ‘culture’ of pre-trial cross-examination that means it is common for witnesses to be cross-examined several times during a single indictable proceeding.[737] Other stakeholders objected to this characterisation, suggesting the DPP ‘overstates the frequency at which witnesses are required to give evidence twice.’[738]

11.33 The Commission is unable to gauge accurately how frequently cross-examination occurs both during a committal hearing and subsequently at other pre-trial hearings and/or during a trial.

11.34 The Commission is also unable to determine from the available data how frequently witnesses are cross-examined during committal hearings. In 2017–18, leave to cross-examine at least one witness was granted in 46 per cent of all committal stream cases—

a total of 1,569 cases.[739] Data is not available to show:

• whether committal hearings were held in all cases in which leave to cross-examine was granted

• in respect of how many witnesses leave to cross-examine was granted

• the type of witnesses in respect of whom leave was granted, for example: informants, experts, complainants, or civilian witnesses.

11.35 There are unlikely to be more than a handful of cases each year in which a higher court is satisfied there is justification for again cross-examining a witness prior to trial who has already been examined at a committal hearing. The Judicial College of Victoria’s Criminal Proceedings Manual suggests, for example, that voir dire hearings will ‘rarely be necessary if the witnesses were cross-examined at the committal hearing’.[740]

11.36 In the experience of Victoria Legal Aid, child witnesses are rarely, if ever, cross-examined during committal proceedings.[741] Victoria Legal Aid attributes this to the additional matters the court must consider before granting leave to cross-examine children at a committal hearing, including the need to minimise trauma.[742]

Trauma associated with cross-examination

11.37 Cross-examination is a stressful experience for many witnesses. This is particularly true for victims of crime, and even more so for those victims who are young or have a cognitive impairment.

11.38 How a witness’s evidence is tested in an adversarial criminal justice system helps explain why cross-examination can be stressful and even traumatising. Often the role of defence counsel is to shed doubt on the reliability or veracity of a witness’ evidence. The Victims of Crime Commissioner noted that ‘variations in storytelling are common (even ‘inevitable’)’,[743] yet inconsistencies between accounts given by a witness on different occasions may be seized on by the defence as indicating that a witness is unreliable or duplicitous. Occasionally this conclusion may be justified, but not always.

11.39 In its 2016 report The Role of Victims in the Criminal Trial Process the Commission noted that many victims it spoke to ‘felt disrespected by the way they were treated during cross-examination and the type of questions they were asked.’[744]

11.40 knowmore, a community legal centre, pointed out that some survivors who gave evidence at the Royal Commission into Institutional Responses to Child Sexual Abuse described being cross-examined as ‘re-traumatising and offensive’ and ‘as bad as the child sexual abuse they suffered’.[745] The centre explained that many of its clients ‘have likewise reported difficulties in persisting with their complaint due to the stress and trauma of being examined in court.’[746] This problem was also highlighted by CASA Forum.[747]

Cross-examination during a committal hearing

11.41 Cross-examination during a committal hearing has been described as ‘worse than at the trial.’[748] An explanation for this is that witnesses are not generally given an opportunity to tell their story in their own way through evidence-in-chief.[749] Another explanation is that defence counsel is ‘not constrained by the presence of a jury’ and may therefore be ‘more oppressive or intimidating’.[750]

11.42 A representative from CASA Forum told the Commission:

While it may be positive in some respects that victim survivors are not required to give their evidence-in-chief prior to trial at committal stage, it can also be very negative for them to have to respond only to questions that cast doubt on their story. In practice, they are denied the opportunity to tell their own story, and are limited to responding to questions that cast doubt on their evidence.[751]

11.43 Domestic Violence Victoria questioned whether it is fair to expect survivors of domestic violence to undergo cross-examination at a committal hearing:

in terms of procedural fairness—if victims are so traumatised by the pre-trial process that they want to pull out—how is that fair?[752]

11.44 The Office of the Public Advocate suggested:

the potential for cross-examinations in committal hearings to retraumatise victims and witnesses is high and, as such, cross-examination should be avoided wherever possible.[753]

11.45 Some County Court judges favoured abolishing the opportunity to cross-examine witnesses in the lower courts. They suggested that ‘witnesses have a greater degree of protection in the trial court because cross-examination can be restricted to the key issues in dispute at the trial’.[754]

11.46 Recognition that cross-examination can be stressful or worse was shared by those who believe cross-examination in the lower courts is nevertheless an important foundation for ensuring fair trials. These stakeholders also claimed, however, that some opportunities for cross-examination at committal may benefit victims and other witnesses by contributing to early resolution.[755] Victoria Legal Aid acknowledged that giving evidence in court, especially during cross-examination, can be traumatic and intimidating.[756]

11.47 The Criminal Bar Association (Victoria), which represents both prosecution and defence counsel, told the Commission:

Giving evidence in court might be a stressful process, but there are a range of responses. There are instances when witnesses, including victims, look forward to giving evidence and having their day in court. Other witnesses are assisted by the opportunity of giving evidence in the Magistrates’ Court before potentially having to do so in a higher court, often before a jury. One concrete rule that all witnesses are likely to be traumatised by any questioning, and particularly so at committal hearing, is not helpful.[757]

11.48 During its inquiry The Role of Victims of Crime in the Criminal Trial Process, the Commission heard from victims who ‘found giving evidence at the committal to be positive—it was an opportunity to “practise” for the trial and to be heard by a court’.[758]

Cross-examination and disclosure

11.49 A witness’s evidence is usually recorded during the investigative phase in a written statement.[759] In most cases, written statements are prepared by the police based on the witness’s oral account. The statement is then signed by the witness in the presence of a police officer. Written statements, along with any other relevant evidence, are compiled into the hand-up brief and provided to the court, DPP and accused.[760]

11.50 Many stakeholders viewed the opportunity to obtain leave to cross-examine witnesses in the lower courts as necessary to obtaining full disclosure of the prosecution case.[761]

11.51 The Criminal Bar Association submitted that relying only a written statement may sometimes be ‘sufficient—or at least sufficient to form the basis of an allegation to which an accused can plead guilty—other times it is not’.[762] This is, they say, because ‘a written statement is not set in stone’ and early pre-trial cross-examination can ‘determine if a witness will maintain, change or add to their account previously given in written form’,[763] affecting how a case will progress.

11.52 The Magistrates’ Court submitted that relying only on a written witness statement can be problematic as the process of compiling one is ‘not merely the recording of events as detailed in a narrative form by a complainant or witness’ but includes content which evolves through discussion between the police officer and the witness.[764] Consequently,

It is … not unusual for a witness to give differing accounts under cross-examination which may in fact constitute a minimal departure from their statements, but which are significant in terms of making out the elements of the offence charged.[765]

11.53 According to the Law Institute of Victoria (LIV), its members report poor disclosure practices by investigative agencies. A particularly common problem is failure by informants to recognise that non-incriminating evidence may be relevant and therefore disclosable. In the LIV’s view, the opportunity to cross-examine at a committal hearing is ‘essential to ensure effective and timely disclosure.’[766] The LIV illustrated its point with reference to the use of photoboards, citing the following ‘generic’ case study as one of ‘numerous examples … with consistently similar facts’ provided by its members:

There was no indication in the hand-up brief of the witness having partaken in a photoboard identification procedure during which the witnesses had not picked out the accused or had selected a number of persons on the photoboard. This is important exculpatory evidence that only came to light during cross-examination of the witness at committal. [767]

11.54 In the DPP’s submission, cross-examination and disclosure ‘should not be conflated’ as ‘disclosure in its legal sense does not include cross-examination of witnesses’.[768] The DPP submitted that improving other aspects of the system such as earlier engagement of prosecutors and better charging and disclosure practices [among informants] would remove the need to rely on cross-examination to achieve early disclosure.[769] Victoria Police agreed, saying that ‘adequate pre-trial processes can be implemented’ to achieve the disclosure that currently occurs during cross-examination.[770]

11.55 Despite differences of opinion about the benefits of committal proceedings,[771] the judges of the County Court are united in their view that:

pre-trial cross-examination of witnesses exists as a central part of the full and fair disclosure of the prosecution case. It is a process that, when conducted efficiently and fairly, is of benefit to all parties, as well as the court. It can facilitate early resolution, full disclosure, and the elucidation of issues in dispute.[772]

11.56 The CPA currently treats the opportunity to cross-examine witnesses during a committal hearing as a component of disclosure and an element of ensuring a fair trial.[773] Despite this, it explicitly prohibits cross-examination during committal proceedings of any witnesses in section 123 cases.[774]

Cross-examination and early resolution

11.57 Appropriate early resolution of a case has numerous benefits. It allows resources to be allocated elsewhere; means that many victims and witnesses are spared the stress and uncertainty of extended proceedings; and it can benefit the accused by providing certainty and, where the accused has entered a guilty plea, may lead to a reduced sentence.

11.58 Differing views were put to the Commission about the contribution made by cross-examination during committal hearings to early resolution, and the degree to which cross-examination can narrow the issues for trial if a case cannot be resolved.

11.59 In the view of Victoria Legal Aid, cross-examination at the pre-trial stage can be ‘pivotal in … facilitating a guilty plea and precluding the need for a trial’.[775] Victoria Legal Aid points out that cross-examination ‘can also reduce the number of charges committed or the issues in dispute, thereby narrowing and shortening the subsequent trial.’[776]

11.60 The Magistrates’ Court submitted that because ‘the quality of evidence at committal is highly probative, this often leads to resolution, obviating the need for trial and minimising trauma for potential witnesses’.[777] The Magistrates’ Court described one committal proceeding which:

was listed for 5 days on a charge of murder with 16 witnesses listed for cross-examination. After hearing the evidence of the first witness, the case was resolved to a plea for manslaughter obviating the need for further witnesses…

There was no significant departure by the first witness from her statement but rather a clarification of the incident. Court time and stress to witnesses were avoided.[778]

11.61 Those County Court judges who supported retaining the opportunity to cross-examine witnesses in the lower courts emphasised its role in narrowing issues for trial:

For matters that do proceed to the trial court, committals ensure that the issues are clarified … and the scope of the charges are limited …[779]

Other jurisdictions

11.62 The Commission was asked to consider the experience of comparable jurisdictions that have abolished pre-trial cross-examination.[780]

11.63 In Western Australia, cross-examination in the lower courts has been effectively abolished.[781] Discussing these amendments in 2009, Western Australian Chief Justice Wayne Martin suggested that ‘the abolition of committal hearings [has] expedited the final resolution of many criminal cases, to the advantage of the community generally’.[782]

11.64 By contrast, the Magistrates’ Court of Victoria uses Western Australia as an example of a jurisdiction where, following the abolition of pre-trial cross-examination, ‘many examples have arisen of non-disclosure issues resulting in convictions being overturned and trials being adjourned or aborted’.[783]

11.65 England and Wales is another jurisdiction where cross-examination is not available in the lower courts. Figures provided by the Magistrates’ Court of Victoria show that between January and December 2017, approximately 69 per cent of indictable cases in England and Wales were sent from the Magistrates’ Court to the Crown Court for trial and only 31 per cent for sentence.[784] In Victoria in 2016–17, the Magistrates’ Court committed 46 per cent of cases to the higher courts for trial and 54 per cent for sentence.[785] This differential is consistent with the opportunity to cross-examine in the lower courts in Victoria contributing to securing early guilty pleas.

Commission’s conclusion: retain cross-examination in the lower courts

11.66 Cross-examination in the lower courts should be retained in appropriate cases.

11.67 In combination with other recommendations made in this report, retaining the opportunity to cross-examine some witnesses in the lower courts will ensure criminal cases in Victoria are dealt with efficiently, with less trauma for victims and witnesses, while preserving the right to a fair trial.

11.68 The Commission now turns to a consideration of whether the prohibition on cross-examining certain classes of witnesses in section 123 of the CPA should be expanded.

Protecting additional classes of witness from cross-examination

11.69 Stakeholders have divergent views about whether existing prohibitions on cross-examining some classes of witness in the lower courts should be expanded.

11.70 The DPP’s suggested approach, supported by Victoria Police,[786] is to:

• prohibit pre-trial cross-examination (whether in the lower or higher courts) of any complainants where the proceeding relates to a sexual or family violence offence

• prohibit pre-trial cross-examination (whether in the lower or higher courts) of any ‘vulnerable witnesses’, unless for the purposes of recording the witnesses’ evidence for use at trial.[787]

11.71 The DPP proposed a ‘vulnerable witness’ should be defined as any child or person with a cognitive impairment, regardless of whether they are a complainant in the matter.[788]

11.72 The supervising magistrates of the Family Violence and Sexual Offences Lists suggested section 123 should be expanded to cases involving family violence.[789] This would prevent cross-examination in the lower courts of any witnesses in cases involving a sexual offence or family violence where the complainant was a child or person with a cognitive impairment when proceedings commenced. Beyond the inclusion of family violence offences, these magistrates opposed any further expansion of section 123. They claimed it was still too early to assess if the recent amendment to section 123 and introduction of section 198A, ‘has assisted to reduce trauma for complainants, promote resolution or avoid delay.’[790]

11.73 The Victims of Crime Commissioner and the Office of the Public Advocate endorsed recommendations made by the Commission in The Role of Victims of Crime in the Criminal Trial Process: Report to prohibit cross-examination in the lower courts of ‘protected victims’. The report says a protected victim should be defined as ‘a victim who is likely to suffer severe emotional trauma or be so intimidated or distressed as to be unable to give evidence or give evidence fairly.’[791] Who should count as a ‘protected victim’ should be assessed on a case-by-case basis, having regard to factors such as the nature of the offending and the victim’s relationship with the accused.[792]

Commission’s conclusion: expand section 123 to some family violence cases

11.74 For many witnesses, being cross-examined is confronting and distressing. This is a more common experience for some witnesses because of their personal circumstances or the type of offending.

11.75 Section 123 of the CPA should be expanded to preclude cross-examination in the lower courts of any witnesses in cases involving family violence where the complainant was a child or person with a cognitive impairment when the proceedings commenced.[793]

11.76 The expansion of section 123 and implementation of section 198A in March 2019 created a different situation to that considered by the Commission in The Role of Victims in the Criminal Trial Process: Report. Until the results of the recent changes become clear, it would be premature to implement a separate ‘protected victim’ category, as recommended in that report.

11.77 The current recommendation to expand section 123 to include family violence cases is not as broad as the DPP’s proposal but is consistent with it. The recommendation has the support of the supervising magistrates of the Family Violence and Sexual Offences Lists.[794] Expanding section 123 to include cases involving family violence is consistent with other parts of the CPA that already provide certain protections in family violence cases.[795]

11.78 At the same time, the proposal will not have the far-reaching consequences of the DPP’s proposal, which could lead to many more section 198A applications and special hearings. Special hearings involve complainants being cross-examined on their trial evidence. The cross-examination occurs from the trial court by video link, with the complainant located in a remote witness facility. Although technically part of the trial, special hearings are conducted in the absence of the jury and are often conducted before the trial proper commences.[796] Recordings of the complainant’s evidence-in-chief and cross-examination are then admitted as the complainant’s evidence in the trial and played for the jury.[797]

11.79 While a strong case can be made to expand the scope of section 123 further to cover other victims, especially those who may be vulnerable to or experiencing severe forms of trauma, who may benefit from giving evidence once only during special hearings, the Commission notes that special hearings are resource intensive and time consuming.[798] The effects of amending section 123 and implementing section 198A have not been formally evaluated. Without knowing how these changes have affected efficiency or the experience of victims, the Commission does not recommend any further expansion of special hearings at this time, beyond its recommendation to include family violence cases.

11.80 Even the Commission’s limited recommendation to expand section 123 to include family violence offences will require more special hearings and likely result in more section 198A applications.

11.81 Before any additional expansion of section 123 is considered, the Commission recommends a formal evaluation of its operation in conjunction with section 198A. The evaluation should assess if the changes are reducing trauma for complainants and other witnesses while also reducing delay and using resources efficiently.

11.82 If the Commission’s recommendation to extend section 123 to include family violence offences is adopted, it should be accompanied by increased funding for the courts, the Office of Public Prosecutions and Victoria Legal Aid.

Recommendations

42 Section 123 of the Criminal Procedure Act 2009 (Vic) should be amended to prohibit cross-examination in the lower courts of any witnesses in cases where the complainant was a child or person with a cognitive impairment when the proceedings commenced and where the conduct constituting the offence involves family violence within the meaning of the Family Violence Protection Act 2008 (Vic).

43 Any amendments to expand section 123 to include family violence offences should be accompanied by appropriate resourcing of the Courts, the Office of Public Prosecutions, Victoria Police and Victoria Legal Aid.

44 There should be a formal evaluation of the operation of the scheme created by sections 123 and 198A of the Criminal Procedure Act 2009 (Vic) to determine if it is operating in the best interests of victims and witnesses, and its broader resource implications.

Should the test for leave to cross-examine witnesses in the lower courts be strengthened?

11.83 As discussed earlier, the test in section 124 of the CPA for leave to cross-examine witnesses at a committal hearing requires an accused to:

• identify an issue to which the proposed questioning relates[799]

• provide a reason why the evidence of the witness is relevant to that issue[800]

• satisfy the Magistrates’ Court that cross-examination of the witness on that issue is justified.[801]

11.84 In determining whether cross-examination is justified, the court must have regard to several factors, including the need to ensure the case is adequately disclosed.[802]

11.85 Section 124(5) lists additional criteria the court must have regard to if the witness is a child, including the need to minimise the trauma that might be experienced by the witness in giving evidence. The supervising magistrates of the Sexual Offences and Family Violence Lists suggest the Magistrates’ Court should also be required to have regard to the criteria in section 124(5) if an application for leave to cross-examine relates to a witness who has a cognitive impairment.[803]

11.86 Having regard to communication and comprehension difficulties faced by witnesses with cognitive impairments, and without opposition from any other stakeholders, the Commission supports this approach.

11.87 The DPP proposed strengthening the test for leave to cross-examine to require that the Magistrates’ Court is satisfied there are substantial reasons why, in the interests of justice, the witness should attend to give oral evidence (‘substantial reasons’ test).[804] In the DPP’s view consideration of the ‘interests of justice’ should include ‘whether the cross-examination of a witness is central to resolution discussions or likely to inform what charges are included on an indictment’.[805]

11.88 Changing the test was also considered in The Role of Victims of Crime in the Criminal Trial Process: Report. The Commission recommended introducing a test restricting cross-examination to matters that relate ‘directly and substantially to the decision to commit for trial’.[806] In response to the current terms of reference, the Commission now recommends that the test for committal be abolished (see Chapter 4). While reference to the test for committal as part of the test for cross-examination in the lower courts is no longer appropriate, the substance of the recommendation in The Role of Victims of Crime in the Criminal Trial Process: Report aligns with the DPP’s ‘substantial reasons’ test.

11.89 Some stakeholders defended the current test for leave to cross-examine but said there was a need for greater consistency in its application. The Commission was told during consultations that some magistrates apply the test appropriately, but in some courts leave to cross-examine is granted almost automatically.

Commission’s conclusions: expand application of section 124(5) and better apply the test for leave to cross-examine

11.90 Section 124(5) should be expanded so that the additional criteria listed must also be considered in relation to applications for leave to cross-examine:

• witnesses who have cognitive impairments

• victims in cases involving sexual or family violence.

11.91 The main problem identified by the Commission concerning the test for leave to cross-examine is that in some cases the test is not properly applied according to its terms but rather that leave is granted almost as a matter of course. The solution to this problem is not to alter the test, but rather to ensure that magistrates apply the test according to its terms.

11.92 One way of promoting this change is to require magistrates to give written reasons, even if brief, for a decision to grant leave. The requirement to provide written reasons is a significant discipline likely to improve the proper application of the test and obviate the need to recast it.

11.93 Combined with rigorous judicial oversight, the enhanced range of protective measures now available in the lower courts (see below), not all of which were available when the Commission made its recommendation in The Role of Victims in the Criminal Trial Process: Report to strengthen the test for cross-examination,[807] should ensure that witnesses are not exposed to unnecessary harm or trauma during cross-examination.

Recommendations

45 Section 124(5) of the Criminal Procedure Act 2009 (Vic) should be amended to require that the considerations in the section also apply to applications for leave to cross-examine witnesses with a cognitive impairment, and victims in cases involving sexual or family violence.

46 Section 124 of the Criminal Procedure Act 2009 (Vic) should be amended to require a magistrate to provide written reasons why, with reference to

sections 124(3) – (5), leave was granted to cross-examine witnesses.

Reducing trauma during cross-examination

11.94 Giving evidence and being cross-examined is a confronting and challenging experience for many victims and witnesses. For some, it is distressing and even traumatising. It is now recognised that the present system does not sufficiently protect victims and the culture around cross-examination of victims in the lower courts needs to change. A range of recent initiatives seek to improve victims’ experience and to protect them from harm. These initiatives are described below, followed by discussion of the use of intermediaries and alternative arrangements for giving evidence. The Commission recommends making intermediaries more widely available and promoting the use of alternative arrangements. Together with the other initiatives described here, and the Commission’s recommendations in relation to sections 123 and 124, this will promote a culture of respect for victims and help protect them from harm.

11.95 The Judicial College of Victoria’s 2019 guide Victims of Crime in the Courtroom explains that victims and witnesses who have been exposed to traumatic events can experience:

• difficulties discussing or recounting the traumatic event/s in detail

• impaired recollection of events due to fragmented memory or emotional arousal that interferes with encoding and recollection of memory

• fear of going to court and seeing the accused or people associated with the accused

• fear of possible credibility issues if they are unable to present a coherent narrative of events and/or advocate for themselves

• fear of being blamed by the community, family members and/or legal professionals

• lack of trust in, and sense of safety around, authority figures in the legal system.[808]

11.96 A trauma-informed approach should be adopted to tackle these challenges.[809] This requires that:

• judicial officers, court staff, investigators and prosecutors are informed about the nature of trauma and equipped to manage its impact on participation in legal processes

• victims and witnesses are provided with appropriate information about the need for and process of pre-trial cross-examination

• victims and witnesses are provided with effective support and facilities before, during and after cross-examination.[810]

11.97 Victims of Crime in the Courtroom is a useful tool for educating judicial officers, court staff and other justice system workers about trauma and its effects within criminal proceedings. The Judicial College also provides training to judges and magistrates on how trauma manifests in court environments.[811]

11.98 In addition to community organisations like Court Network,[812] a range of government services provide information to victims and witnesses and support them to give their best evidence without being further traumatised. These include:

• The OPP’s Victims and Witness Assistance Service (VWAS), staffed by social workers who provide information and support to adult victims and witnesses

• The Child Witness Service, which aims to reduce trauma and stress experienced by child witnesses by familiarising them with the court process and personnel; supporting them and their families throughout the criminal proceeding; and providing debriefing and referrals to community agencies[813]

• The Intermediaries Pilot Program, which assesses and makes recommendations regarding the communication style and needs of complainants in sexual offence cases and witnesses in homicide cases who are children or persons with cognitive impairments[814]

• The OPP’s Victim Support Dog Program, which uses trained support dogs to comfort vulnerable witnesses when they are giving evidence.[815]

11.99 The CPA also expressly provides that the court may make directions for alternative arrangements for taking the evidence of witnesses in cases involving a charge for:

• a sexual offence

• a family violence offence

• obscene, indecent, or threatening language or behaviour in public

• sexual exposure.[816]

The OPP’s Victims and Witness Assistance Service

11.100 The Victims and Witness Assistance Service (VWAS) is staffed by social workers who operate within a trauma-centred framework.[817] It provides adult victims and witnesses of serious crime with information and support.[818] It prioritises assistance and support to families who have lost loved ones; victims and witnesses in sexual assault and family violence matters; and vulnerable victims.[819] VWAS provides information about giving evidence and discusses with victims and witnesses any concerns they may have about it, gives tours of the courtroom, and provides referrals to other support agencies.[820]

11.101 Since 2019, teams of four social workers from VWAS have worked in each of the four trial divisions at the OPP to develop victim engagement plans and to provide advice on how best to support victims and witnesses throughout the course of indictable prosecutions.[821]

11.102 During its 2016 inquiry, The Role of Victims of Crime in the Criminal Trial Process, the Commission was told that victim support services, including the Witness Assistance Service—as VWAS was then called—were underfunded. This underfunding was particularly severe in regional Victoria.[822] In response to a recommendation from the Commission for better regional services and more effective victim support services generally,[823] the OPP received funding to strengthen its support services. It has now established a ‘Victims and Witnesses’ website, in consultation with the Victims of Crime Consultative Committee, which provides information about the court process and giving evidence and is accessible throughout Victoria.[824]

11.103 The OPP has redesigned its regional prosecution process to ensure consistency with matters dealt with in Melbourne.[825] This redesign should ‘allow for more consistent delivery of services to victims and witnesses’ but the OPP notes that:

While in principle we endeavour to provide equal access to our services in every matter, whether regional or metro-based, this is always subject to the challenge of funding.[826]

11.104 The Commission reiterates that the VWAS should have a strong presence in regional Victoria.

Expanding the use of intermediaries

11.105 In 2018, the CPA was amended to provide that intermediaries may be appointed to assess the communication style and needs of child witnesses and witnesses who have cognitive impairments and make recommendations for how to help these witnesses give their best evidence.[827]

11.106 An Intermediaries Pilot Program was established in July 2018 and will continue until June 2020[828] in courts in metropolitan Melbourne.[829] It is limited to:

• complainants in sexual offences cases who are children or persons with a cognitive impairment

• witnesses in homicide cases who are children or persons with a cognitive impairment.

11.107 Intermediaries are appointed by the court on its own motion or following an application by a party.[830] This may occur at any stage in proceedings, including before committal hearings.[831] Intermediaries are officers of the court and have a duty to act impartially.[832]

11.108 If an intermediary is appointed, a ‘ground rules hearing’ must be held before the hearing at which the witness gives evidence.[833] At the ground rules hearing, the court considers the intermediary’s assessment report and recommendations and may make directions for the fair and effective conduct of the proceeding, including:

• how the witness may be questioned

• the duration of questioning

• questions that may or may not be put to a witness

• the use of aids to help communicate a question or an answer.[834]

11.109 The intermediary must be present when the witness gives evidence.[835] Where necessary, they can facilitate communication between the witness and other parties to prevent or overcome a communication breakdown.[836]

11.110 Several stakeholders supported an expansion of the Intermediaries Pilot Program.

11.111 The Office of the Public Advocate (OPA) ‘looks forward to the evaluation of the pilot and a state-wide roll-out’.[837] In the meantime, given that:

Intermediaries … can promote one of the purposes of the committals hearing—of full disclosure of the prosecution case—and reduce the need for cross-examination of witnesses, by better enabling people to tell their stories … the program [should] be expanded to support people with cognitive impairment in a broader range of offence categories than is currently offered.[838]

11.112 Echoing the Final Report of the Royal Commission into Institutional Sexual Abuse, knowmore proposed expanding the intermediary scheme to, ‘at a minimum’, adult complainants in child sexual abuse cases. It added that, ‘pending positive outcomes from the Intermediary Pilot Program’, and acknowledging potential resource constraints, intermediaries should eventually be available to ‘any prosecution witness with a communication difficulty’.[839]

11.113 Victoria Legal Aid proposed that intermediaries and ground rules hearings be made available at all court locations and for more victims and witnesses, potentially including all:

• complainants with vulnerabilities

• complainants in family violence matters

• witnesses with significant cognitive disabilities or mental health issues

• witnesses with limited English or from a vulnerable community

• witnesses in cases where the offending is likely to cause particular trauma.[840]

11.114 Expanding the intermediary program to all victims and witnesses with communication difficulties would advance fair trial rights. Improved communication helps witnesses give their best evidence. This promotes better disclosure to the accused, which supports a fair trial. Expansion of the program could also help minimise trauma for victims and witnesses by allowing them to feel supported, and confident that their voice is heard and their meaning understood.

Recommendation

47 The Criminal Procedure Act 2009 (Vic) should be amended to allow for an intermediary to be appointed to assess any witness with communication difficulties following an application by a party or on the court’s own motion.

Alternative arrangements

11.115 Under the CPA, a court may direct that alternative arrangements be made for a witness, including a complainant, to give evidence in proceedings that relate to a charge for:

• a sexual offence

• a family violence offence

• obscene, indecent, or threatening language or behaviour in public

• sexual exposure.[841]

11.116 Alternative arrangements include:

• using remote witness facilities

• using screens in the courtroom to remove the accused from the victim’s line of vision when the victim is giving evidence

• having a support person beside the victim to provide emotional support when the victim is giving evidence

• allowing only specified people to be present in court

• prohibiting lawyers from wearing robes and requiring them to be seated rather than standing when questioning the victim.[842]

11.117 In The Role of Victims in the Criminal Trial Process: Report the Commission noted that it consulted with victims who used alternative arrangements when giving evidence, some of whom found the experience positive.[843] During its consultations, there was support for expanding the availability of alternative arrangements to a broader group of victims.[844] The Commission recommended that all child victims should be eligible to use alternative arrangements should they wish to do so, as well as victims who fell within the Commission’s proposed definition of ‘protected victim’.[845] At the time of this reference, that recommendation has not been implemented.

11.118 Submissions to the current reference focussed on whether cross-examination during pre-trial committal proceedings should be abolished altogether or retained, rather than whether alternative arrangements should be used more widely. Victoria Legal Aid noted, however, that ‘distress can be minimised by giving evidence under alternative arrangements’ and it supported the Commission’s previous recommendation to make alternative arrangements available to a wider group.[846]

11.119 Magistrates already have a general power to make directions for how witnesses give evidence, including making special arrangements if the circumstances so require, as part of the necessary authority to control proceedings and ensure fair trials. The CPA power to direct the making of alternative arrangements in proceedings involving certain offences is the statutory recognition of one aspect of the general power. The court’s general power should be explicitly recognised in the CPA in order to encourage the use of alternative arrangements for all victims and witnesses who require them as a measure to reduce potential trauma.

Recommendation

48 Division 4 of part 8.2 of the Criminal Procedure Act 2009 (Vic) should be amended to provide that the court may make directions for alternative arrangements for taking the evidence of any witness where the interests of justice so require, and taking into account the need to minimise trauma for victims and witnesses.


  1. In this chapter, references to witnesses include the complainant unless otherwise specified.

  2. Submission 13 (Victoria Legal Aid).

  3. Submission 11 (Criminal Bar Association (Victoria)).

  4. Submission 14 (Magistrates’ Court of Victoria).

  5. Submission 11 (Criminal Bar Association (Victoria)), 13 (Victoria Legal Aid), 14 (Magistrates’ Court of Victoria).

  6. Submission 25 (Victoria Police).

  7. Submission 23 (Victims of Crime Commissioner).

  8. Consultation 3 (CASA Forum).

  9. Consultation 14 (Domestic Violence Victoria).

  10. Submission 4 (Director of Public Prosecutions (Victoria)).

  11. See also Consultation 9 (Women’s Housing Ltd).

  12. Submission 4 (Director of Public Prosecutions (Victoria)).

  13. Except for cases covered by s 123 of the Criminal Procedure Act 2009 (Vic), to which prohibitions on cross-examination apply.

  14. Magistrates’ Court Act 1989 (Vic) sch 5 cl 3(4).

  15. Ibid sch 5 cl3(7).

  16. Magistrates’ Court (Committal Proceedings) Act 2000 (Vic).

  17. Criminal Procedure Act 2009 (Vic) s 124.

  18. Ibid s 124(3)(a).

  19. Ibid s 124(3)(a).

  20. Ibid s 124(3)(b).

  21. Ibid s 124(4).

  22. Ibid s 124(5).

  23. Ibid s 124(2).

  24. Ibid s 124(6).

  25. Ibid s 132.

  26. Ibid ss 132(1)(b), 132A.

  27. Ibid ss 132A(4), 132A(5).

  28. Ibid s 370 and see generally ch 8, pt 8.2, div 6.

  29. Victoria, Parliamentary Debates, Legislative Assembly, 21 June 2018, 2146 (Martin Pakula, Attorney-General).

  30. Criminal Procedure Act 2009 (Vic) s 198A(4).

  31. Ibid s 198A(5)(a). See the criteria listed in paragraph 11.17, above.

  32. Ibid s 198A(6).

  33. Ibid s 198A(5)(b).

  34. The common law procedure of an accused cross-examining a witness to enable the accused to adequately prepare and present a defence, derived from R v Basha (1989) 39 A Crim R 337, has been abolished: Criminal Procedure Act 2009 (Vic) s 198C.

  35. Criminal Procedure Act 2009 (Vic) s 198B(3).

  36. Ibid s 198B(4).

  37. Judicial College of Victoria, ‘17 Voir Dire’, Victorian Criminal Proceedings Manual (1 April 2011) [4].

  38. Submission 4 (Director of Public Prosecutions (Victoria)).

  39. Submission 9 (Australian Lawyers for Human Rights).

  40. Magistrates’ Court of Victoria, Committal Data Requested by VLRC (24 April 2019). See also Victorian Law Reform Commission, Committals (Issues Paper, June 2019) 17–18 [3.44]. Data obtained by the Commission in 2016 shows that in 2015, one or more witness was cross-examined in 46 per cent of matters that proceeded through a committal hearing: Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 210 [8.86].

  41. Judicial College of Victoria, ‘17 Voir Dire’, Victorian Criminal Proceedings Manual (1 April 2011) [9].

  42. Submission 13 (Victoria Legal Aid).

  43. Ibid; Criminal Procedure Act 2009 (Vic) s 124(5).

  44. Submission 23 (Victims of Crime Commissioner), citing Diana Eades, ‘Telling and Retelling Your Story in Court: Questions, Assumptions and Intercultural Implications’ (2008) 20(2) Current Issues in Criminal Justice 209, 215.

  45. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 93 [5.36].

  46. Submission 7 (knowmore).

  47. Ibid.

  48. Consultation 3 (CASA Forum).

  49. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 207 [8.64].

  50. It is common practice at committal hearings for witness’ statements to be tendered in lieu of them giving oral evidence-in-chief: Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 207 [8.64].

  51. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 207 [8.64].

  52. Consultation 3 (CASA Forum).

  53. Consultation 14 (Domestic Violence Victoria).

  54. Submission 6 (Office of the Public Advocate).

  55. Submission 20 (County Court of Victoria).

  56. See discussion below under the heading, ‘Cross-examination and early resolution’.

  57. Submission 13 (Victoria Legal Aid).

  58. Submission 11 (Criminal Bar Association (Victoria)).

  59. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Consultation Paper, July 2015) 138 [7.39].

  60. The evidence of child complainants and complainants with cognitive impairments in cases involving certain offences is audio-visually recorded by the police. The relevant offences include: sexual offences, an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008 (Vic), an indictable offence which involves an assault on, or injury or a threat of injury to, a person or certain unlawful assault offences in the Summary Offences Act 1966 (Vic): Criminal Procedure Act 2009 (Vic) s 366.

  61. See Criminal Procedure Act 2009 (Vic) s 110.

  62. Submissions 11 (Criminal Bar Association (Victoria)), 14 (Magistrates’ Court of Victoria), 24 (Law Institute of Victoria), 19 (Victorian Aboriginal Legal Service).

  63. Submission 11 (Criminal Bar Association (Victoria)).

  64. Ibid.

  65. Submission 14 (Magistrates’ Court of Victoria).

  66. Ibid.

  67. Submission 24 (Law Institute of Victoria).

  68. Ibid.

  69. Submission 4 (Director of Public Prosecutions (Victoria)).

  70. Ibid.

  71. Submission 25 (Victoria Police). Victoria Police does not specify what these processes might be.

  72. ‘There are two broad views within the Court regarding the need to reform committals, particularly regarding the overall merit of transferring pre-trial cross-examination to the trial court’: Submission 20 (County Court of Victoria).

  73. Submission 20 (County Court of Victoria).

  74. Criminal Procedure Act 2009 (Vic) s 97(d)(i), (ii).

  75. As noted earlier, these are cases involving sexual offences where the complainant was a child or person with a cognitive impairment when the proceedings commenced.

  76. Submission 13 (Victoria Legal Aid).

  77. Ibid.

  78. Submission 14 (Magistrates’ Court of Victoria).

  79. Ibid.

  80. Submission 20 (County Court of Victoria).

  81. Submission 9 (Australian Lawyers for Human Rights), Submission 10 (Rape and Domestic Violence Services Australia).

  82. Pre-trial cross-examination is only available where the prosecution has been unable to obtain a written statement from a witness and needs to take their evidence in a process similar to Victoria’s compulsory witness examination hearing.

  83. Chief Justice Wayne Martin, ‘The Law Reform Commission of WA: Review of the Civil and Criminal Justice System—10 Years On’ (Speech, Supreme Court of Western Australia, 13 October 2009) 11 <https://www.supremecourt.wa.gov.au/_files/Law_Reform_Commission_20091013.pdf>.

  84. Submission 14 (Magistrates’ Court of Victoria).

  85. Ibid.

  86. Ibid.

  87. Submission 25 (Victoria Police).

  88. Submission 4 (Director of Public Prosecutions (Victoria)).

  89. Ibid.

  90. Submission 14a (Magistrates’ Court of Victoria – additional submission).

  91. Ibid.

  92. Recommendation 37: Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 213.

  93. Ibid. Recommendation 38 says that ‘All child victims other than child victims of sexual offences [who are already protected under the Criminal Procedure Act 2009 (Vic) s 123] should be considered protected victims unless the court is satisfied that the child victim is aware that the protective procedures are available and does not wish to use them.’

  94. Defined as an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008 (Vic): Criminal Procedure Act 2009 (Vic) s 353(1)(b). Unlike sexual offences, which can be more exhaustively defined, offending committed in the context of family violence may take a number of forms, including sexual offences, serious assaults, homicide offences, threats to kill or cause serious injury, as well as property offences involving theft burglary and damage to property: Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 201–202 [8.34].

  95. Submission 14a (Magistrates’ Court of Victoria – additional submission)

  96. Criminal Procedure Act 2009 (Vic) s 353(1)(b).

  97. Ibid s 372.

  98. Ibid s 374.

  99. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 196–226.

  100. Criminal Procedure Act 2009 (Vic) s 124(3)(a).

  101. Ibid s 124(3)(a).

  102. Ibid s 124(3)(b).

  103. Ibid s 124.

  104. Submission 14a (Magistrates’ Court of Victoria – additional submission).

  105. Submission 4 (Director of Public Prosecutions (Victoria)).

  106. Ibid.

  107. Recommendation 39: Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 209 [8.79].

  108. Recommendation 39: Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 209 [8.79].

  109. Judicial College of Victoria, Victims of Crime in the Courtroom: A Guide for Judicial Officers (2019) 4.

  110. Submissions 4 (Director of Public Prosecutions (Vcitoria)), 6 (Office of the Public Advocate), 7 (knowmore), 9 (Australian Lawyers for Human Rights), 10 (Rape and Domestic Violence Services), 13 (Victoria Legal Aid), 16 (Ari Wigdorowitz), 19 (Victorian Aboriginal Legal Service), 23 (Victims of Crime Commissioner), 24 (Law Institute of Victoria), 25 (Victoria Police).

  111. See Judicial College of Victoria, Victims of Crime in the Courtroom: A Guide for Judicial Officers (2019) 4.

  112. Judicial College of Victoria, ‘Insight into Trauma Event’, Programs and Events (Web Page, 2019) <https://www.judicialcollege.vic.edu.au/programs-and-events/insight-trauma>.

  113. Court Network is a community organisation that provides support, information and referral to people attending court and advocates for the needs of all court users. See Court Network, ‘About Us’, What We Do (Web Page, 2020) <https://courtnetwork.com.au/about/what-we-do/>.

  114. Victims Support Agency, ‘Child Witness Service’, Victims of Crime (Web Page, 23 August 2019) <https://www.victimsofcrime.vic.gov.au/going-to-court/child-witness-service>.

  115. County Court of Victoria, Multi-Jurisdictional Court Guide for the Intermediary Pilot Program: Intermediaries and Ground Rules Hearings (Guide, 28 June 2018) <https://www.countycourt.vic.gov.au/practice-notes?filters[division]=2>.

  116. ‘Program Overview’, Court Dogs Victoria (Web Page, 2020) <https://www.courtdogsvictoria.org.au/program>.

  117. Criminal Procedure Act 2009 (Vic) s 359.

  118. Email from the Office of Public Prosecutions to the Victorian Law Reform Commission, 28 January 2020.

  119. Office of Public Prosecutions Victoria, Witness Assistance Service (Brochure, 2014).

  120. Ibid.

  121. Ibid.

  122. Letter from Office of Public Prosecutions to Victorian Law Reform Commission, 19 December 2019.

  123. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 117 [6.72].

  124. Recommendation 22: Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 118.

  125. Letter from Office of Public Prosecutions to Victorian Law Reform Commission, 19 December 2019.

  126. Ibid.

  127. Ibid.

  128. Criminal Procedure Act 2009 (Vic) pt 8.2A.

  129. County Court of Victoria, Multi-Jurisdictional Court Guide for the Intermediary Pilot Program: Intermediaries and Ground Rules Hearings (Guide, 28 June 2018) 1.

  130. As well as some police sexual offence and child investigative team sites: County Court of Victoria, Multi-Jurisdictional Court Guide for the Intermediary Pilot Program: Intermediaries and Ground Rules Hearings (Guide, 28 June 2018) 1–3 [1]–[11].

  131. Criminal Procedure Act 2009 (Vic) ss 337(1), 389J.

  132. Ibid s 389F.

  133. Ibid s 389I(2).

  134. Ibid ss 389B, 389C.

  135. Ibid s 389E.

  136. Ibid s 389K.

  137. Department of Justice and Community Safety (Vic), ‘Victorian Intermediaries Pilot Program,’ Justice System (Web Page, 26 April 2019) <https://www.justice.vic.gov.au/justice-system/courts-and-tribunals/victorian-intermediaries-pilot-program>.

  138. Submission 6 (Office of the Public Advocate).

  139. Ibid.

  140. Submission 7 (knowmore).

  141. Submission 13 (Victoria Legal Aid).

  142. Criminal Procedure Act 2009 (Vic) s 359.

  143. Ibid ss 360–365.

  144. Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process (Report No 34, August 2016) 206 [8.57].

  145. Ibid [8.58].

  146. Ibid [8.62].

  147. Submission 13 (Victoria Legal Aid).

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