Evaluation of the recent improper questions reform
1. The recent reform to disallow improper questions for all witnesses giving evidencemakes it mandatory that improper questions be disallowed, and expandsthe rule to cover all witnesses in all disputes.
2. Changes made to s41 of the Evidence Act 2008 by the Justice Legislation Miscellaneous Amendment Act 2018(Vic) came into effect in 2019, disallowing improper questions for all witnesses giving evidence. Prior to this change, the court wasgiven discretion over whether it disallowed the question, and s41 only related to ‘vulnerable’ witnesses.The reform removes the court’s discretion, making it mandatory that improper questions be disallowed, and it expandsthe rule to cover all witnesses in all disputes.
The amendment defines an ‘improper question’ as any question that is misleading or confusing; oris unduly annoying, harassing intimidating, offensive, oppressive, humiliating or oppressive; oris put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; orhas no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity,age or mental, intellectual or physical disability).
The court has a duty to intervene even if no party objects to the question, but if the witnesses chooses to answer thequestion, their answer is admissible even if the question is not.
3. Responses will vary according to the principle of justice selected.
4. Responses will vary according to the principle of justice selected.
5. The task word ‘critically examine’ requires a balanced response that points out both arguments in favour and concerns in relation to the reform. An overall judgment is also required, judging the relative strengths of the arguments supported with evidence. For example, a student might argue that the disallowance of improper questionsdoes achieve the principles of justice in the criminal law system. In this case, ‘critically examining’ the extent to which reforms to the youth diversion programme have increased the achievement of the principles of justice overall in the criminal law system requires students to write about relevant arguments in favour and concerns in relation to the reform.