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Balancing fairness to victims, society and defendants in the cross-examination of vulnerable witnesses: an impossible triangulation?

Citation

Bowden, P and Henning, T and Plater, DJ, Balancing fairness to victims, society and defendants in the cross-examination of vulnerable witnesses: an impossible triangulation?, Melbourne University Law Review, 37, (3) pp. 539-584. ISSN 0025-8938 (2014) [Refereed Article]


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Copyright Statement

Copyright 2014 Melbourne University law review

Official URL: http://www.law.unimelb.edu.au/files/dmfile/37_3_1....

Abstract

Cross-examination is fundamental to the adversarial criminal trial. However, when children and witnesses with an intellectual disability are cross-examined, it can lead to unreliable evidence and further trauma to the victim. Various reforms in Australian jurisdictions, England and elsewhere have had only limited practical e!ect as they fail to address the underlying problems that arise from the adversarial system itself. While any changes must maintain a defendantís vital right to a fair trial, the current criminal trial may allow defendants an illegitimate advantage. Fairness to the defendant, victim and society can and must be balanced. In order to reduce any illegitimate advantage, direct cross-examination should be removed. Instead, cross-examination should be conducted in advance of trial by a suitable third party and video-recorded. A similar process is used in Norway. A wholesale transformation into an inquisitorial system is not required for the bene(ts of non-adversarial examination to be achieved.

Item Details

Item Type:Refereed Article
Research Division:Law and Legal Studies
Research Group:Law
Research Field:Law and Society
Objective Division:Law, Politics and Community Services
Objective Group:Justice and the Law
Objective Field:Legal Processes
Author:Henning, T (Associate Professor Terese Henning)
Author:Plater, DJ (Dr David Plater)
ID Code:91564
Year Published:2014
Web of Science® Times Cited:3
Deposited By:Faculty of Law
Deposited On:2014-05-22
Last Modified:2017-11-20
Downloads:109 View Download Statistics

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