Part 5: Protection for victims and witnesses in court Section 66: Prohibition of cross-examination in person in civil proceedings New section 85I – Direction for prohibition of cross-examination in person: other cases
Section 85I provides a power for the court to give a direction prohibiting cross-examination in person if none of new sections 85F to 85H operates to prevent the party from cross-examining the witness and where the conditions in section 85I(1)(b)(i) and (ii) of the Courts Act 2003 are met. In effect, the court may give a direction in one of two circumstances, namely where cross examination in person by a party (that is, the perpetrator) is likely to diminish the quality of the witness’s (that, is the victim’s) evidence, or would cause significant distress to the witness, and it would not be contrary to the interests of justice to give the direction. This section will apply reciprocally so as to prevent a victim of abuse from having to cross-examine their perpetrator.
	Section 85I(2) and (3) sets out what constitutes the "quality condition" and "significant distress condition".
	The "quality condition" will be met if the quality of the witness’s evidence on cross-examination would be likely to be diminished if the cross-examination is conducted by a party in person, and that the quality of the evidence would likely be improved if a direction was given.
	The "significant distress condition" will be met if the cross-examination in person would be likely to cause significant distress to the witness or the party conducting the cross examination and the distress caused is likely to be more significant than would be the case if the witness were cross-examined other than by the party in person.
	Section 85I(4) sets out that the court also has the discretion to make a direction of its own motion prohibiting the cross-examination in person where it considers it appropriate.
	In considering whether the quality condition or the significant distress condition is met, section 85I(5)(a)-(j) sets out the what the court will consider, amongst other things, the behaviour of the witness and party, the relationship between them, or if there has been a charge of a specified offence. The court may give a direction prohibiting cross-examination in person on application by a party, but it also has the discretion to give a direction of its own motion where it considers to be in the interests of justice to do so (section 85I(4)).