University of Tasmania
Browse
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?

Download (382.75 kB)
journal contribution
posted on 2023-05-18, 00:59 authored by Bowden, P, Terese HenningTerese Henning, David PlaterDavid Plater
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 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 Review

Volume

37

Pagination

539-584

ISSN

0025-8938

Department/School

Faculty of Law

Publisher

Melbourne University Law Review Association Inc.

Place of publication

Australia

Rights statement

Copyright 2014 Melbourne University law review

Repository Status

  • Open

Socio-economic Objectives

Legal processes

Usage metrics

    University Of Tasmania

    Exports

    RefWorks
    BibTeX
    Ref. manager
    Endnote
    DataCite
    NLM
    DC