What does s 41 of the Evidence Act mean to you as a judicial officer?
L Babb, “What does s 41 of the Evidence Act mean to you as a judicial officer?” paper presented at the Judicial Commission of NSW, Twilight Seminar: Child Sexual Assault, 28 September 2005, Sydney, under the original title “What does s 275A of the Criminal Procedure Act mean to you as a judicial officer?”.
This paper closely examines s 41 of the Evidence Act 1995 on improper questioning. Section 41 has adopted s 275A of the Criminal Procedure Act and applied this section to both civil and criminal proceedings. Section 41 places a positive duty on judicial officers to act to prevent improper questions to help elicit the best evidence given by a witness free from harassment, intimidation or abuse. It outlines that judicial intervention to actively protect witnesses from improper questioning is not inconsistent with the judicial role nor is it an impediment to a fair trial. It is an attempt to create a movement away from the tacit acceptance of improper behaviours that cut across fundamental fair trial principles.
Acknowledgment: this article was prepared by Lloyd Babb and presented at the Judicial Commission of NSW, Twilight Seminar: Child Sexual Assault on 28 September 2005, Sydney. Reproduced with permission. Modified in February 2009 to incorporate amendments effected by the Evidence Amendment Act 2007, commenced 1 January 2009 (Gazette No 158 of 2008, p 12, 305). Note the Evidence Amendment Act applies to proceedings commencing on or after 1 January 2009.