Cross-examination order

What does that mean?

If you have been charged with an offence and intend to plead not guilty without a lawyer representing you, there may be restrictions on the type of witnesses who can be cross-examined at your trial. These people are called ‘protected witnesses’.

When the court makes a cross-examination order, Legal Aid Queensland (LAQ) will arrange for a lawyer to provide you with free legal assistance. This lawyer can only assist you with cross-examination of specific witnesses.

A cross-examination order will not be made if you already have legal representation.

Even when a lawyer has been appointed to assist you, it does not mean that you have to cross-examine the witness. Speak to the lawyer about this.

Which courts can make a cross-examination order?

A cross-examination order can be made for any trial in the District Court or Supreme Court if a witness has been declared a ‘protected witness’.

A Magistrates Court will only make a cross-examination order when the trial involves a domestic violence offence or is an offence relating to a domestic violence order. Examples include:

• contravention of a domestic violence order
• contravention of a police protection notice
• contravention of release conditions
• any other offence that involves, or is associated with, domestic violence, or contravenes the Domestic Violence Act.

Who is a ‘protected witness’?

Only certain people can be a ‘protected witness’. Examples include:

• a witness aged under 16 years
• a witness with a mind impairment
• an alleged victim of domestic violence
• in court cases for a ‘domestic violence order related offence’, a person who is:
  • named as the aggrieved, or a relative or associate of the aggrieved, in a domestic violence order
  • a person who the court considers would likely be disadvantaged, or suffer severe emotional trauma, unless treated as a protected witness
  • an alleged victim of a ‘prescribed special offence’ 
  • an alleged victim of a ‘prescribed offence’, who the court considers would likely be disadvantaged as a witness, or suffer severe emotional trauma, unless treated as a protected witness.

‘Prescribed special offences’ and ‘prescribed offences’ are specific offences under the Criminal Code, such as murder, attempted murder, manslaughter, grievous bodily harm, rape and attempted rape. 

If you have been charged under the Criminal Code and a cross-examination order has been made, you need legal advice.

Special measures the court can order for cross-examination of a protected witness

In some circumstances, a ‘protected witness’ will also be considered a ‘special witness’.  This means the court can make an order, or direction, about how their evidence will be given.

Examples of a ‘special witness’ are:

• a child aged under 16 years
• a person who the court considers:
  • would likely be disadvantaged as a witness, due to a mental, intellectual or physical impairment, or another reason
  • would likely suffer severe emotional trauma
  • would likely be severely intimidated and, therefore, disadvantaged as a witness
  if they were required to give evidence according to standard court rules and practice

• a person who will give evidence about a serious criminal offence committed by a criminal organisation or a person participating in a criminal organisation
• a person who:
  • has, or allegedly has, had domestic violence committed against them by another person, and
  • will give evidence about an offence committed by the other person
• a person who:
  • has, or allegedly has, had a sexual offence committed against them by another person, and
  • will give evidence about an offence committed by the other person.

The prosecutor will make an application to the court to have a witness declared a ‘special witness’. They will provide evidence to the court, including any affidavits or reports, that they are relying on to support their application.

When a witness is declared a ‘special witness’, the court may make additional orders, such as:

• exclude someone from the court room
• exclude the defendant from the court room, or obscure the defendant from viewing the special witness, while they give evidence
• allow a ‘special witness’ to give evidence remotely
• allow a ‘special witness’ to have an approved person with them while they give evidence
• allow evidence presented by the ‘special witness’ to be recorded
• any order or direction the court considers appropriate, for example:
  • the witness takes rest breaks
  • questions are kept simple
  • questions are time limited
  • a limited number of questions on a particular issue.

If the defendant is excluded from the court room while the ‘special witness’ gives evidence, they will be given access to an electronic device, for example, a video link, so they can continue to see and hear the proceedings.

Do I need legal advice?

You may need legal advice if you do not have legal representation and the court has been asked to:

• declare a witness as a ‘protected witness’
• declare a witness as a ‘special witness’.

However, if an order has been made to appoint a lawyer to cross-examine a witness, speak to that lawyer to find out how this will be done.

Last updated 21 December 2023