132. Court to inform of rights to make applications and objections

132. Court to inform of rights to make applications and objections

If it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of this Part, the court must satisfy itself (if there is a jury, in the absence of the jury) that the witness or party is aware of the effect of that provision.

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68. Objections to tender of hearsay evidence in civil proceedings if maker available

68. Objections to tender of hearsay evidence in civil proceedings if maker available

(1) In a civil proceeding, if the notice discloses that it is not intended to call the person who made the previous representation concerned because it-

(a) would cause undue expense or undue delay; or

(b) would not be reasonably practicable-

a party may, not later than 21 days after notice has been given, object to the tender of the evidence, or of a specified part of the evidence.

(2) The objection is to be made by giving to each other party a written notice setting out the grounds on which the objection is made.

(3) The court may, on the application of a party, determine the objection at or before the hearing.

(4) If the objection is unreasonable, the court may order that, in any event, the party objecting is to bear the costs incurred by another party-

(a) in relation to the objection; and

(b) in calling the person who made the representation to give evidence.

Note

This subsection differs from section 68(4) of the Commonwealth Act because of the different way costs are ascertained by Victorian courts.

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41. Improper questions

41. Improper questions

(1) The court may disallow an improper question or improper questioning put to a witness in cross-examination, or inform the witness that it need not be answered.

(2) The court must disallow an improper question or improper questioning put to a vulnerable witness in cross-examination, or inform the witness that it need not be answered, unless the court is satisfied that, in all the relevant circumstances of the case, it is necessary for the question to be put.

(3) In this section, improper question or improper questioning means a question or a sequence of questions put to a witness that-

(a) is misleading or confusing; or

(b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or

(c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or

(d) has no basis other than a stereotype (for example, a stereotype based on the witness's sex, race, culture, ethnicity, age or mental intellectual or physical disability).

(4) For the purposes of subsection (2) a witness is a vulnerable witness if the witness-

(a) is under the age of 18 years; or

(b) has a cognitive impairment or an intellectual disability; or

(c) is a witness whom the court considers to be vulnerable having regard to-

(i) any relevant condition or characteristic of the witness of which the court is, or is made aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality; and

(ii) any mental or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject; and

(iii) the context in which the question is put, including-

(A) the nature of the proceeding; and

(B) in a criminal proceeding-the nature of the offence to which the proceeding relates; and

(C) the relationship (if any) between the witness and any other party to the proceeding.

(5) A question is not an improper question merely because-

(a) the question challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness; or

(b) the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness.

(6) A party may object to a question put to a witness on the ground that it is an improper question.

(7) However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question.

(8) A failure by the court to disallow a question under this section, or to inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question.

Notes

1. A person must not, without the express permission of a court, print or publish any question that the court has disallowed under this section - see section 195.

2. Section 41 differs from the Commonwealth Act and New South Wales Act.

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37. Leading questions

37. Leading questions

(1) A leading question must not be put to a witness in examination in chief or in re-examination unless-

(a) the court gives leave; or

(b) the question relates to a matter introductory to the witness's evidence; or

(c) no objection is made to the question and (leaving aside the party conducting the examination in chief or re-examination) each other party to the proceeding is represented by an Australian legal practitioner, legal counsel or prosecutor; or

(d) the question relates to a matter that is not in dispute; or

(e) if the witness has specialised knowledge based on the witness's training, study or experience-the question is asked for the purpose of obtaining the witness's opinion about a hypothetical statement of facts, being facts in respect of which evidence has been, or is intended to be, given.

(2) Unless the court otherwise directs, subsection (1) does not apply in civil proceedings to a question that relates to an investigation, inspection or report that the witness made in the course of carrying out public or official duties.

(3) Subsection (1) does not prevent a court from exercising power under rules of court to allow a written statement or report to be tendered or treated as evidence in chief of its maker.

Note

Leading question is defined in the Dictionary.

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18. Compellability of spouses and others in criminal proceedings generally

18. Compellability of spouses and others in criminal proceedings generally

(1) This section applies only in a criminal proceeding.

(2) A person who, when required to give evidence, is the spouse, de facto
partner, parent or child of a defendant may object to being required-

(a) to give evidence; or

(b) to give evidence of a communication between the person and the defendant-

as a witness for the prosecution.

(3) The objection is to be made before the person gives the evidence or as
soon as practicable after the person becomes aware of the right so to object, whichever is the later.

(4) If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person.

(5) If there is a jury, the court is to hear and determine any objection under this section in the absence of the jury.

(6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that-

(a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence; and

(b) the nature and extent of that harm outweighs the desirability of having the evidence given.

(7) Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following-

(a) the nature and gravity of the offence for which the defendant is being prosecuted;

(b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it;

(c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor;

(d) the nature of the relationship between the defendant and the person;

(e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant.

(8) If an objection under this section has been determined, the prosecutor may not comment on-

(a) the objection; or

(b) the decision of the court in relation to the objection; or

(c) the failure of the person to give evidence.

In a judicial review of the dismissal of charges from the Magistrates' Court, the Supreme Court ruled that the magistrate had wrongly refused to admit evidence under section 65 (as an exception to the hearsay rule) after a complainant had sucessfully objected to giving evidence against her de facto partner: DPP v Nicholls [2010] VSC 397.

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