25. Improper Questions (s 41) & DREC (Vic)¶

Scope and currency

Reference sheet · Evidence Act 2008 (Vic) s 41 + Criminal Procedure Act 2009 (Vic) ss 387F–387H · disallowable questions & digitally recorded evidence-in-chief

Two witness protections:

s 41 imposes a mandatory duty on the court to disallow improper questions in cross-examination — of any witness — whether or not a party objects.
DREC (Digitally Recorded Evidence in Chief) lets a family-violence complainant give evidence-in-chief by a digital recording (Criminal Procedure Act 2009 (Vic) ss 387F–387H). This sheet covers both.

Part A — Improper questions (s 41)¶

The duty (s 41(1)): the court must disallow an improper question or improper questioning put to a witness in cross-examination or inform the witness that it need not be answered. It regulates the questioning of all witnesses, and forms part of the judge's duty to ensure a fair trial (Ward (a pseudonym) v The Queen [2017] VSCA 37).

Mandatory — no objection required

a party may object (s 41(6)), but the court's duty applies whether or not an objection is raised (s 41(7)). Victoria differs from the Commonwealth and NSW Acts (which are objection- / vulnerable-witness-driven) — here the duty is unconditional and covers every witness.

What is an improper question? (s 41(3))¶

Category	Detail
(a) Misleading or confusing	questions that mislead or confuse the witness.
(b) Unduly harassing	unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive.
© Belittling manner / tone	put in a manner or tone that is belittling, insulting or otherwise inappropriate.
(d) Stereotype-based	has no basis other than a stereotype — e.g. the witness's sex, race, culture, ethnicity, age, or mental / intellectual / physical disability.

NOT improper merely because (s 41(5))¶

Still permissible	Detail
Challenging the witness	the question challenges the witness's truthfulness, or the consistency or accuracy of a statement made by the witness.
Distasteful / private topics	the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness.

Not exhaustive — the common law too: s 41 is not an exhaustive list of improper questions; other provisions, other Acts, and the common law also apply.

At common law: it is improper to ask a witness whether another witness is lying (Reeves [2013] VSCA 311 at [74]–[78]) — though strong jury directions may cure the impropriety (Reeves at [35]).

The answer still stands (s 41(8)): a failure by the court to disallow a question (or to inform the witness that it need not be answered) does not affect the admissibility of any answer the witness has already given. In other words, if TJ does not step in to stop an answer to an improper question, then the answer is admissible.

Publication & waiver: a disallowed question must not be printed or published (by the media) without the court's express permission (s 195). By consent, s 41 may be waived for particular evidence or generally (s 190(1)) — but an accused may consent only if advised by their lawyer, or the court is satisfied they understand the consequences.

Part B — Digitally Recorded Evidence in Chief (DREC)¶

What DREC is: for family-violence offences, a complainant's evidence-in-chief may be a digital recording, admissible as if it were the complainant's direct testimony (Criminal Procedure Act 2009 (Vic) s 387F(1)) — in the proceeding and, unless the court orders otherwise, in any new trial or appeal. Two limbs: (1) making (s 387G) and (2) admissibility (s 387F); service is s 387H.

GATE 1 · s 387G Requirements for MAKING a DREC

Was the recorded statement properly made? A recorded statement must: be made as soon as practicable after the alleged family-violence events; be made with the complainant's informed consent; include, at the end, the complainant's attestation as to the truth of its content; and be an audiovisual recording. Audio-only is allowed only in exceptional circumstances, where an audiovisual recording is not available and having regard to whether the accused would be unfairly prejudiced (s 387G(2)). If any part is not in English, an oral translation must be included, or a written English translation must accompany it (s 387G(4)). → 'Informed consent' (s 387G(3)): requirements are that a trained police officer must tell the complainant that: - the recording may be used in a criminal proceeding / an FVIO proceeding / (if a court orders) another proceeding; - that they may be required to give further evidence (evidence-in-chief, cross-examination and re-examination); and - that they may refuse to consent to record the DREC; and - the complainant must indicate in the recording that they understand those matters and consent to the making of it.

GATE 2 · s 387F Requirements for ADMISSIBILITY

Can the DREC go in as the complainant's evidence-in-chief? Subject to exceptions, the DREC (Digitally Recorded Evidence in Chief) is admissible if it (a) complies with s 387G; (b) a copy or transcript was served under s 387H; © if the accused is unrepresented, they were given a reasonable opportunity to view (audiovisual) or listen (audio) to it; and (d) at the hearing the complainant identifies themselves, attests to its truthfulness, and is available for cross-examination and re-examination. → Exceptions (s 387F(3)–(5)): the parties may consent to use despite a service / opportunity failure; the court may rule parts inadmissible and direct they be edited out (so only the admissible parts are used); and a "reasonable opportunity" is taken to have been given if the accused could view/listen during questioning about the offence, or was notified in writing of the right to view/listen on a day arranged with the informant.

DREC — making (s 387G) vs admissibility (s 387F)¶

Making — s 387G	Admissibility — s 387F
As soon as practicable after the events	Complies with s 387G
Complainant's informed consent (s 387G(3))	Copy / transcript served (s 387H)
Attestation of truth at the end	If unrepresented, reasonable opportunity to view / listen
Audiovisual (audio only if exceptional)	At the hearing: complainant identifies, attests, available for XXN / RXN

Provisions at a glance¶

Provision	Effect
EA s 41	Court must disallow improper questions in cross-examination (whether or not an objection is raised); categories in s 41(3); safe cases in s 41(5).
EA s 41(8)	A failure to disallow does not affect the admissibility of the answer given.
EA ss 190 / 195	Waiver by consent (190(1)); no printing/publishing a disallowed question without leave (195).
CPA s 387F	DREC admissibility — as if the complainant's direct testimony.
CPA s 387G	DREC making — timing, informed consent, attestation, audiovisual form.
CPA s 387H	Service of a copy or transcript of the DREC.

Authorities at a glance¶

Authority	The point it stands for
Ward (a pseudonym) v The Queen [2017] VSCA 37	The duty to disallow improper questions is part of the judge's duty to ensure a fair trial — controlling questioning that could jeopardise it.
Reeves [2013] VSCA 311	At common law it is improper to ask a witness whether another witness is lying ([74]–[78]); strong directions may cure it ([35]).
Evidence Act s 41(3)–(5)	The statutory categories of improper questions, and the questions that are not improper merely because they challenge or discomfort the witness.
Criminal Procedure Act ss 387F–387H	The DREC scheme for family-violence complainants — making, admissibility and service.

Key points to remember¶

• Mandatory duty: s 41 is an unconditional judicial duty (no objection needed — s 41(7)), and Victoria's version is broader than the Commonwealth / NSW Acts.

• Stereotype ground: s 41(3)(d) — a question with no basis other than a stereotype (sex, race, culture, ethnicity, age, disability) is improper.

• DREC is FV-specific: the CPA ss 387F–387H scheme applies to family-violence offences; the complainant must still identify, attest and be available for cross-examination.