105HLeave to cross-examine witness

105H Leave to cross-examine witness (1) The defendant cannot cross-examine a witness at a preliminary examination unless: (a) the defendant applies under section 105G or 105J(9)(b) for leave to cross-examine; and (b) the Court grants leave under this section. (2) If the prosecutor consents to leave being granted, the Court must grant leave unless satisfied it would not be in the interests of justice to do so. (3) If the prosecutor does not consent to leave being granted, the Court must not grant leave unless satisfied: (a) the defendant: (i) has identified an issue to which the proposed cross-examination relates; and (ii) has provided a reason why the evidence of the witness is relevant to that issue; and (b) cross-examination of the witness on that issue is justified having regard to the matters mentioned in subsections (4) and (5). (4) In determining whether cross-examination is justified, the 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 (c) the evidence is sufficient to put the defendant on trial for any indictable offence; and (d) a fair trial will take place if the matter proceeds to trial, including that the defendant will be able adequately to prepare and present a defence; and (e) any matters relevant to a potential plea of guilty are clarified; and (f) any matters relevant to a potential discontinuance of prosecution are clarified; and (g) trivial, vexatious or oppressive cross-examination is not permitted; and

Local Court (Criminal Procedure) Act 1928 47 (h) any mental, intellectual or physical disability to which the witness is or appears to be subject and of which the Court is aware is taken into consideration; and (i) the interests of justice are otherwise served. (5) If the witness is a child, the Court must also 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) the importance of the witness to the case for the prosecution; and (d) the existence or lack of evidence that corroborates the proposed evidence of the witness; and (e) the extent of any proposed admissions; and (f) the probative value of the proposed evidence of the witness; and (g) the issues in dispute; and (h) the weight of the proposed evidence of the witness; and (i) any statements of other witnesses that contradict the proposed evidence of the witness. (6) If leave to cross-examine a witness is granted, the witness must attend at the time and place fixed for the giving of evidence by the (7) If a witness does not attend a preliminary examination when required to do so: (a) the Court may continue the preliminary examination in the absence of the witness; but (b) the witness' handed-up witness statement is then inadmissible as evidence in the preliminary examination.