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Monday, 11 May 2009

Protected witnesses protected from self-represented litigants

The respondent to a family violence intervention order is not allowed to personally cross-examine a protected person in an application for an intervention order: Family Violence Protection Act 2008 s 70.

If the respondent isn't represented by a lawyer, the Act requires a magistrate to direct Legal Aid to represent the respondent for cross-examination of the protected witness — even if the respondent is ineligible for a grant of legal aid.

Victoria Legal Aid's policy on qualifying for legal assistance says at Appendix 2B, clause 6.3, it might limit court-ordered representation under the Act to only cross-examination of the protected witness.

But, we know how difficult it is for an advocate to try to appear only part-way through an application. I'm told that when possible, VLA will brief counsel to appear for the whole application.

There's a similar provision in the Evidence Act 1958 s 37CA as well. It too prohibits an accused person personally asking questions of a protected person in a criminal hearing alleging a sexual offence or family violence.

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