Appearing in a criminal court is stressful, no matter whether you are the complainant, the defendant or a witness.
In the UK, a number of high-profile cases in which celebrities and members of the public were reportedly humiliated in the courtroom by having details of their private lives revealed have led to the DPP planning to introduce new guidelines that witnesses and complainants need to be warned ahead of time if their personal lives are likely to be put under scrutiny in court.
The controversial guidelines, which are currently out for public consultation, are a reaction to complainants leaving court feeling humiliated and upset about having the details of their private affairs scrutinised publicly.
The changes don’t mean that the private lives of witnesses and complainants won’t be brought up in UK courts, just that the people involved will have advanced warning if this is likely to be the case.
Those in favour of these changes believe that it will provide the people affected with the chance to prepare themselves for the likelihood that the details of their personal lives will be dragged out into the spotlight.
But there are also concerns that such a system could lead to people refusing to appear as key witnesses, and cases collapsing as a result.
So what questions can and can’t be asked in court in Australia?
In a courtroom, a lawyer is not allowed to ask personal or intrusive questions for the sake of it.
Asking questions that are intrusive or personal without being in any way relevant to the case, or just for the sake of harassing a witness, is not permitted. It is usually at the magistrate’s or judge’s discretion whether or not to allow a line of questioning to proceed.
The way witnesses, complainants and defendants are questioned in court is governed by the Evidence Act 1995.
Under this Act, there are certain guidelines that lawyers must follow when cross-examining witnesses.
Section 41 of the Act deals with improper questions, and states that any questions that are unduly annoying, harassing, intimidating, offensive or humiliating do not need to be answered.
Questions that might otherwise fall into this category can be allowed, depending on the context. If it is relevant to the offence and the nature of the proceedings it may be allowed. Similarly if it demonstrates the relationship between the witness and other parties, it may also be allowed.
There are also rules against asking witnesses about their prior sexual history.
Is someone’s private life relevant in court?
Although no similar measures to the UK’s have so far been suggested in Australia, whether or not it is appropriate to bring up a complainant or witness’s personal life depends largely on whether it is relevant to a fact that is in issue in the case.
In some cases, private details can be relevant if they provide an insight into the whether or not it is more likely that the person would have behaved in a certain way, or conducted a certain act.
It’s also important that any biases or conflicts of interest in witnesses and complainants are revealed during this process, and that may require certain personal information that they can be uncomfortable providing.
As a criminal defence lawyer, it is part of the job to ensure that the person accused is getting a fair trial and that the alleged evidence against them is credible and reliable.
This often involves pursuing lines of questioning that witnesses and complainants may find confronting and even offensive.
Should witnesses be warned before personal questions are asked?
The reason behind warning witnesses if they are going to be asked personal questions is to help them prepare themselves mentally for cross examination and give them a realistic expectation as to what to expect on the stand.
Unfortunately, for many people it is understandably very difficult to talk about issues that are deeply personal for them, and knowing ahead of time that they will have to do this could mean that they opt out of appearing or coming forward as witnesses.
If the new system is adopted in the UK, witnesses and complainants will not only be informed that they are going to be asked about their personal lives, they will also be informed of the nature of the defence case, and advised to ask for questions to be repeated or rephrased, or to ask to look at their witness statements.
Criticism voiced in the UK says that this behaviour constitutes ‘coaching’ of witnesses and should not be encouraged.
An adversarial criminal justice system works on the basis of a certain level of confrontation, and there are concerns that pre-advising witnesses, and informing them of what they are likely to be asked, could jeopardise this process.
Although cross examination in a courtroom can be undeniably difficult for witnesses, in certain circumstances, the private lives of witnesses and complainants can be relevant to the matter at hand, and can reveal significant weaknesses in the prosecution’s case.
Pre-warning witnesses and complainants runs the risk of skewing the evidence, and could jeopardise a fair trial for the person accused.
If you are facing a criminal trial, experienced criminal lawyers can certainly advise you about the process and the likely scope of questioning.