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(1AA)This section does not apply to—
(a)a committal proceeding to which section 123 applies; or
Section 123(1) specifies proceedings in which the Magistrates' Court must not grant leave to cross-examine any witness.
(b)a committal proceeding in which Part 4.6A requires the Magistrates' Court to commit the accused for trial in the Supreme Court.
S. 124(3)(b) substituted by No. 5/2025 s. 12(1)(b).
If Part 4.6A requires the Magistrates' Court to commit the accused for trial in the Supreme Court, there is to be no committal hearing at which cross-examination could occur—see section 100(1A)(b).
(1)A witness cannot be cross-examined without leave being granted under this section.
(2)In determining whether to grant leave to cross-examine a witness, the Magistrates' Court may have regard to whether the informant consents to or opposes leave being granted.
(3)The Magistrates' Court must not grant leave to cross-examine a witness unless the court is satisfied that—
(a)the accused has identified an issue to which the proposed questioning relates; and
(b)cross-examination of the witness on the issue is directly and substantially relevant to that issue; and
(c)there are substantial reasons why, in the interests of justice, the witness should be cross-examined on that issue.
(4)In determining whether there are substantial reasons why, in the interests of justice, the witness should be cross-examined on an issue, the Magistrates' Court must have regard to the need to ensure that—
(a)the prosecution case is adequately disclosed; and
(b)the issues are adequately defined; and
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(d)a fair trial will take place if the matter proceeds to trial, including that the accused is able adequately to prepare and present a defence; and
(e)matters relevant to a potential plea of guilty are clarified; and
(f)matters relevant to a potential discontinuance of prosecution under section 177 are clarified; and
(g)trivial, vexatious or oppressive cross-examination is not permitted.
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1credibility evidence about a witness is not admissible (the credibility rule). Section 103(1) of the Evidence Act 2008 provides that
2the credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness.
(5)In addition to the requirements of subsection (4), if the witness is a specified witness, the Magistrates' Court must have regard to—
(a)the need to minimise the trauma that might be experienced by the witness in giving evidence; and
(b)any relevant condition or characteristic of the witness, including age, culture, personality, education and level of understanding; and
(c)any mental, intellectual or physical disability to which the witness is or appears to be subject and of which the court is aware; and
(d)the importance of the witness to the case for the prosecution; and
(e)the existence or lack of evidence that corroborates the proposed evidence of the witness; and
(f)the extent of any proposed admissions; and
(g)the probative value of the proposed evidence of the witness; and
(h)the issues in dispute; and
(i)the weight of the proposed evidence of the witness; and
(j)any statements of other witnesses that contradict the proposed evidence of the witness.
(5A)In this section—
specified witness means—
S. 124(5A) def. of specified witness amended by No. 5/2025 s. 12(3).
(a)a child; or
(b)a person with a cognitive impairment.
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