(VIC) Prevent Personal Cross-Examination by an Accused

Alexandria Mills, Holy Ibrahim, Nya Sharma, Keona Rangwala, Lucy Leutchford & Janielle Osei-Agyei
2 days ago
7 min read

Author: Alexandria Mills, Holy Ibrahim, Nya Sharma, Keona Rangwala, Lucy Leutchford & Janielle Osei-Agyei | Publish date: 13/8/2026

Content Warning: Violent crime and mental health

P: In VIC, victim-witnesses may be subject to cross-examination by the accused during criminal proceedings.
S: The VIC Attorney-General should amend Section 356 of the Criminal Procedure Act 2009 (VIC) to prohibit personal cross-examination by an accused to a victim-witness.
E: Victims of Crime Commissioner (VOCC) (2023): ‘The Victorian Government should introduce amendments to the Criminal Procedure Act 2009 (VIC) to prevent personal cross-examination by an accused [to] a victim-witness’.

Problem Identification:

Section 356 of the Criminal Procedure Act 2009 (VIC) (the Act) only prohibits personal cross-examination of ‘protected witnesses’ by an accused.

According to the VOCC, this means that victims who are not declared to be protected witnesses are at ‘increase[d] … risk of re-traumatis[ation]’ as a result of being cross-examined by the accused. The VOCC further stated that when an accused is able to self-represent, they can use the cross-examination to ‘further abuse a victim’.

Context:

According to the Act, the term ‘protected witnesses’ refers to victims of sexual offence, family violence, or stalking, among others. Under the Act, the court may deem a witness to be protected at any time. The Victorian Law Reform Commission (VLRC) further outlined that the Act can extend special protections to child victims and victims with a cognitive impairment.

A cross-examination refers to when the defence is allowed to ‘confront and undermine the prosecution’s case by exposing deficiencies in a witness' testimony’. Cross-examination by an accused occurs when the accused chooses to ‘self-represent’. This means that they undertake tasks normally assigned to a lawyer, such as examining witnesses and presenting the case to the judge.

The Legislative Council of Legal and Social Issues estimated in 2021 that the number of self-represented cases is ‘approaching almost 50%’ in the Magistrates’ Court of Victoria. However, the Australian Institute of Judicial Administration noted that ‘most courts do not collect data about this, or do so only minimally or sporadically.’

Arguments:

The VOCC stated that ‘when an accused is self-represented and personally cross-examines a victim of crime, this increases the risk of re-traumatising victims.’ A study conducted in the Family Law Review described the ability of the accused to cross-examine the victim as ‘the most harmful … conduct’. The UNSW Law Journal stated that ‘direct and personal confrontation with the alleged perpetrator … is an extension of the violence and the legal proceedings become a site for further abuse rather than justice.’ An article in the Brooklyn Law Review asserted that ‘a defendant who … personally cross-examines the victim is given a final opportunity to harass, bully, and control the victim’, subjecting the victim to ‘retraumatization [sic]’.

According to the Australian Law Reform Commission (ALRC), cross-examination by an accused affects ‘the quality and nature of the evidence received.’ The Brooklyn Law Review asserted that during personal cross-examination, ‘the victim is subject to retraumatization, which harms their ability to testify completely and accurately’. They elaborated that ‘instead of greater accuracy, testimony is clouded and sometimes destroyed solely due to the history and relationship between the questioner and the questioned.’

The VLRC highlighted that ‘accused persons have a right to cross-examine witnesses … in order to make a full and proper defence.’ However, the VOCC argued that such a view centres the rights of the accused, adopting a ‘narrow and traditional or binary focus [that] “tends to reinforce the status quo”.’ They further stated that this ‘does not sufficiently take account of the need to consider victims’ interests’.

Advice/Solution Identification:

The VOCC has called to ‘prevent personal cross-examination of a victim by an accused’. They stated that this could prevent victim-witnesses experiencing ‘unnecessary trauma, intimidation or distress as a result of giving evidence.’

Precedent:

There is international precedent for preventing the personal cross-examination of a victim-witness by an accused. In Belgium, ‘there is no direct cross-examination of witnesses: all questions must be posed through the president of the criminal trial court.’

Public Support of the Solution:

(This list reflects publicly stated positions and should not necessarily be taken as endorsement of this specific brief or other listed organisations.)

Broad Support:

Victorian Law Reform Commission (VLRC) - They broadly recommended amendments to cross-examination processes to ensure that courts limit, ‘to the fullest practical extent, the trauma, intimidation and distress suffered by victims when giving evidence.’ However, they have not explicitly called for the complete prohibition of cross-examination by the accused.
Victoria Legal Aid (VLA) - They broadly called for ‘intermediaries and ground rules hearings [to] be made available at all court locations and for more victims and witnesses’. However, they have not explicitly called for the complete prevention of cross-examination by the accused.
Family Law Review Journal - They argued that judicial discretion alone is insufficient and recommended legislative reforms, including appointing legal representatives for cross-examination, to ‘better protect [victims] from perpetrators’. However, they have not explicitly called for the complete prevention of cross-examination by the accused.

News Coverage:

The Guardian - “Sexual assault victims to be spared repeated grilling by lawyers under new Victorian reforms”. The article reported that the 2024 reforms are necessary to reduce trauma because repeated cross-examination is described as one of the most stressful parts of the criminal justice process for victim-witnesses. By: Benita Kolovos | 29 October 2024 - Read the article here.
ABC News - “New Victorian laws to spare some victims from traumatic cross-examination before trial”. The article discussed the 2024 amendments to the Criminal Procedure Act 2009 (VIC) that strengthened the test for cross-examination. By: ABC News | 29 October 2024 - Read the article here.
The Guardian - “Victims of crime should be provided with legal representation, Victorian inquiry finds”. The article explained that the Victorian inquiry found that crime victims feel systematically excluded and sidelined throughout the justice process. By: Benita Kolovos | 18 March 2024 - Read the article here.
ABC News - “Intermediaries help people with cognitive impairments give evidence to police and in court. But many miss out”. The article discussed the benefits of intermediaries and highlighted the consequences of missing out for those who would benefit. By: Ashleigh Barraclough | 18 September 2023 - Read the article here.

Where to go to learn more:

(2023) Silenced and sidelined: Systematic inquiry into victim participation in the justice system | Victims of Crime Commissioner - The report examined victim participation in the justice system and identified that victims can experience secondary victimisation. The report directly called for reforms to protect victims from unreasonable trauma during cross-examination, including the prohibition of personal cross-examination of a victim by an accused. Read the inquiry here.
(2016) The Role of Victims of Crime in the Criminal Trial Process | Victorian Law Reform Commission - Chapter 8 specifically examined current protections available to victims and considered further amendments that should be made available to improve victim protection during criminal trials. Read the full report here.
(2021) Unrepresented accused in the Magistrates’ Court of Victoria | The Australasian Institute of Judicial Administration Inc. - The report provided context as to how magistrates engage with the accused when the accused is self-represented and cross-examining the witness. Read the report here.
(2024) New Laws To Help Protect Victims From Further Trauma - The article highlighted Victoria's recognition that cross-examination can re-traumatise victims, while also revealing that enhanced protections remain limited to a narrow group of protected witnesses. Read the article here.
Criminal Procedure Act 2009 (VIC) - Read the full Act here.

Human Perspective:

Trigger Warning: Discussion relating to violent crime and mental health

Sarah is a nurse who lives alone in Melbourne. Months ago, her apartment was broken into while she was sleeping inside, leaving her deeply unsettled and with ongoing sleep struggles and a constant feeling of anxiety in her own home. When the trial date arrived, Sarah felt prepared to give her testimony, expecting that the court would keep a professional distance between her and the accused. However, she was shocked to learn that the accused, who was self-represented, would be cross-examining her personally. She found the process deeply intimidating, struggling to focus and to deliver her statement clearly as she answered detailed questions about her daily routine, her home layout and her security measures, directly from the person who had broken into her home. Sarah left the process feeling highly exposed and anxious. She had not been able to recount the events of the break-in as accurately as she had prepared, which limited the quality of the evidence she was able to provide. Without access to alternative arrangements, she found the process emotionally draining and unfair, and feared it would worsen her ongoing sleep troubles and trauma. This experience has limited her hope that the perpetrator will be held accountable and her ability to feel a sense of safety in her home.

To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.

Conflict of interest/acknowledgment statement:

N/A.

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Reference list:

Antolak-Saper, N., Clough, J., & Naylor, B. (2021). Unrepresented accused in the Magistrates’ Court of Victoria. The Australasian Institute of Judicial Administration. https://aija.org.au/wp-content/uploads/2021/11/Unrepresented-Accused-in-the-Magistrates-Court-of-Victoria-2021-Antolak-Saper-Clough-Naylor.pdf

Australian Law Reform Commission. (2010). Family violence – A national legal response (ALRC Report 114). https://www.alrc.gov.au/publication/family-violence-a-national-legal-response-alrc-report-114/28-other-trial-processes-3/cross-examination-2/

Booth, T., Kaye, M., & Wangmann, J. (2019). Family violence, cross-examination and self-represented parties. UNSW Law Journal, 42(3), 1106–1142.

https://www.unsw.edu.au/content/dam/pdfs/law/unsw-law-journal/2010-2019/Vol-42-3-Booth-Kaye-and-Wangmann.pdf

Criminal Procedure Act 2009 (VIC). https://content.legislation.vic.gov.au/sites/default/files/2026-05/09-7aa113-authorised.pdf

Fitch, E., & Easteal, P. (2017). Vexatious litigation in family law and coercive control: Ways to improve legal remedies and better protect the victims. Family Law Review, 7, 103–115. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3015354

House of Representatives Standing Committee on Social Policy and Legal Affairs. (2017). A better family law system to support and protect those affected by family violence. Australian Parliament. https://parlinfo.aph.gov.au/parlInfo/download/committees/reportrep/024109/toc_pdf/Abetterfamilylawsystemtosupportandprotectthoseaffectedbyfamilyviolence.pdf

Manning, K. L. (2022). Protecting the constitution while protecting victims: Challenges to pro se cross-examination. Brooklyn Law Review, 87(4), Article 5. https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=2314&context=blr

TRIAL International, & Open Society Justice Initiative. (2022). Universal jurisdiction: Law and practice in Belgium [Briefing paper]. https://trialinternational.org/wp-content/uploads/2022/05/UJ-Belgium-EN-1.pdf

Victims of Crime Commissioner. (2023). Silenced and sidelined: Systematic inquiry into victim participation in the justice system. https://victimsofcrimecommissioner.vic.gov.au/media/lpufjx5h/silenced-and-sidelined_systemic-inquiry-into-victim-participation.pdf

Victorian Law Reform Commission. (2016). The role of victims of crime in the criminal trial process. https://www.lawreform.vic.gov.au/publication/the-role-of-victims-of-crime-in-the-criminal-trial-process-report-2/8-protection.

Victorian Law Reform Commission. (2020). Committals: Report. https://www.lawreform.vic.gov.au/publication/committals/11-pre-trial-cross-examination/