Section 41 of the Evidence Act 1995
This article was originally published as CE O’Connor QC, “Section 275A of the Criminal Procedure Act 1986” a paper presented at the District Court of New South Wales Annual Conference, 10–12 April 2007, Leura: modified February 2009.
This paper closely examines s 41 of the Evidence Act 1995 which adopts the provisions of s 275A of the Criminal Procedure Act and was inserted into the Evidence Act on 1 January 2009 by the Evidence Amendment Act 2007. The paper outlines the development of s 41 of the Evidence Act 1995 and s 275A of the Criminal Procedure Act 1986. While the former version of s 41 retained a discretion to disallow a question, s 275A imposed a positive duty on the court in criminal proceedings to disallow an improper question in cross-examination.
A court must apply s 41 even if no objection is taken by counsel. Further, s 41 adds to the type of questions that are to be disallowed including humiliating questions, questions that are put in a tone that is belittling, insulting or otherwise inappropriate, and questions that have no basis other than a stereotype based on sex, race, culture or ethnicity, age or mental, intellectual or physical disability.
Section 41 also adds to the matters the court may take into account to determine if the questions are to be disallowed. These include age, education, ethnic or cultural background, gender, language, background and skills, level of maturity and understanding and personality.
Explicit reference to the types of questioning may serve to bring them to judicial attention and provide greater guidance as to how the duty to limit cross-examination should be exercised.
Acknowledgment: this article was prepared by his Honour Judge O’Connor QC and presented at the District Court of New South Wales Annual Conference, April 2007 and updated in February 2009. Reproduced with permission.