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Friday, 26 February 2010

A fool for a client ...

Whatever the general rule of puttage might be (see The recent history of Browne v Dunn, above), a specific prohibition on the accused giving (or adducing) evidence now exists at s 358 of the Criminal Procedure Act 2009.



Division 4 of Part 8.2 of the Act prohibits an unrepresented accused from personally cross-examining a protected person in the hearing of a sexual or family violence offence. It provides the Court with the ability to direct Legal Aid to act on the accused's behalf (they would anyway) and to provide directions to juries that no adverse inference should be drawn from the fact that a lawyer conducted the cross-examination.



Refusal of such assistance will have severe consequences. You can lead a horse to water without necessarily being able to get them to drink. Where an accused refuses the representation offered, s 357(5) provides,



(5) If the accused refuses the legal representation provided under subsection (3), or otherwise refuses to co-operate, the court must warn the accused that the accused will not be permitted to adduce evidence in relation to a fact in issue in order to contradict the evidence of a protected witness unless the evidence on which the accused intends to rely has been put to the protected witness during cross-examination.




This sub-section is then enforced by s 356.

2 comments:

Anonymous said...

Where is the section that says that a lawyer can't ask questions that break Browne v Dunn?

Elucubrator said...

Probably s 46 of the Evidence Act is the closest section that deals with Browne v Dunn, though it's not a prohibition.