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enables the court to disallow improper questions put to any witness during cross-examination. The clause imposes an obligation on the court to disallow improper questions being put to a vulnerable witness (or inform the witness it need not be answered). The clause specifies that for the court to deviate from this obligation in relation to a vulnerable witness, it must consider all relevant circumstances of the case and only allow the question if it concludes that it is necessary for the question to be put. The onus is on the party putting the question(s) to demonstrate that the proposed question is necessary. This clause differs from section 41 of the Model Uniform Evidence Bill which requires the court to prohibit "disallowable" questions from being put to any witness. The adoption, in Victoria, of a two step approach recognises the capacity of the court to control proceedings by enabling regulation of the questioning of all witnesses, without unduly interfering with the trial process. It also acknowledges, however, that special protection is required for vulnerable witnesses and the mandatory obligation to consider all relevant circumstances is designed to facilitate a positive culture of judicial intervention for these witnesses. The definition of improper question or improper questioning in this clause is substantially similar to the definition of a disallowable question in the Model Uniform Evidence Bill. Subclause (3) defines an improper question or improper questioning in a broad manner, and outlines a non-exhaustive list of the content or style of questions that the court must find to be improper. They include questions that are misleading or confusing, unduly annoying, harassing, intimidating, offensive or repetitive, put in a belittling, insulting or inappropriate manner or if the only basis of the question is a stereotype. As noted above, the court has discretion to disallow these questions in relation to any witness, but must disallow them in relation to vulnerable witnesses. Subclause (4) defines a vulnerable witness. This clause makes it clear that vulnerable witnesses are people under the age of 18 years and people with a cognitive impairment. This is intended to prevent argument about whether or not the obligation under subclause (2) applies to such people. However, the subclause also sets out other conditions or characteristics that may cause people to be categorised as vulnerable. These factors include the—
age (including, for example, advanced age) and cultural background of the witness;
mental or physical capacity (for example, where it does not necessarily constitute cognitive impairment) of the witness; and
context of the case or the context in which the questions are put, including the relationship between the witness and any party to the proceeding.
The subclause is intended to minimise the need for argument about whether a witness is vulnerable. In some cases the vulnerability will be obvious, but in others, it may be the circumstances of the case that cause the witness to be vulnerable. Subclause (5) provides that a question is not disallowable merely because it challenges the truthfulness of the witness or the consistency or accuracy of any statements made by the witness, or the subject of the questions is considered by the witness to be distasteful or private. Subclause (6) enables a party to object to an improper question put to a witness. However, the absence of such an objection does not remove the court's obligation to monitor questions. Subclause (7) makes it clear that the relevant duties apply whether or not an objection is raised. This subclause is intended to ensure that the court takes an active role in monitoring questions and ensuring the appropriate regulation of questions in cross-examination. As specified in subclause (8) a failure by the court to disallow a question under clause 41 will not affect the admissibility of the witness's answer. The purpose of this clause is not to diminish the duty on the court to effectively regulate improper questions. Rather, it is designed to ensure that such a failure will not render the evidence elicited inadmissible, and therefore the proceeding subject to appeal. The first Note to clause 41 is a cross reference to clause 195 which prohibits the publication of disallowed questions unless the express permission of the court has been obtained. The second Note to clause 41 stipulates (as explained above) that this clause differs from the Model Uniform Evidence Bill.