Part 5: Protection for victims and witnesses in court Section 65: Prohibition of cross-examination in person in family proceedings New section 31U – Direction for prohibition of cross-examination in person: other cases
Section 31U provides that, in addition to the automatic bar on cross-examination in person provided for in sections 31R to 31T, there are circumstances where the court has the discretion to prohibit cross-examination in person by giving a direction to that effect. The discretion can be exercised if someone involved in the proceedings applies for a direction or if the court itself raises the issue. The court can prohibit the cross-examination in person if it is satisfied that either the "quality condition" or the "significant distress condition" is met and that it will not be contrary to the interests of justice to direct that cross-examination by a party in person is prohibited. This discretionary power is intended to ensure that the court can prohibit cross-examination in person wherever it is needed, including in domestic abuse-related cases where the automatic prohibition does not apply, or where a party may experience significant distress or have the quality of their evidence compromised for reasons other than domestic abuse.
	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 the court prohibited that cross-examination in person.
	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 greater than if the witness were cross-examined other than by the party in person. Circumstances in which this condition might be met could include, for example, instances where domestic abuse is alleged but the automatic prohibition doesn’t apply or where the direct cross-examination by a party of an expert witness would be likely to cause the party significant distress.
	Section 31U(5) sets out factors that the court must consider when deciding whether the "quality condition" or "significant distress condition" is met. This includes views expressed by the witness or the party, the likely content of the questions to be asked, any finding of fact that has been made about the party’s or the witness’s behaviour, how the party or the witness is acting in the proceedings and the relationship between the party and the witness. This list is not exhaustive, and the court may have regard to other things when deciding if the "quality condition" or "significant distress condition" is met.
	Section 31U(6) and (7) explain what is meant by the "quality" of evidence given by the witness.