91564 - Balancing fairness to victims, society and defendants.pdf (382.75 kB)
Balancing fairness to victims, society and defendants in the cross-examination of vulnerable witnesses: an impossible triangulation?
journal contribution
posted on 2023-05-18, 00:59 authored by Bowden, P, Terese HenningTerese Henning, David PlaterDavid PlaterCross-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 defendant’s 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.
History
Publication title
Melbourne University Law ReviewVolume
37Pagination
539-584ISSN
0025-8938Department/School
Faculty of LawPublisher
Melbourne University Law Review Association Inc.Place of publication
AustraliaRights statement
Copyright 2014 Melbourne University law reviewRepository Status
- Open