Section 38: Defence representation for purposes of cross-examination
139.This section makes provision for representatives to be appointed to conduct the cross-examination when an unrepresented defendant is banned from cross-examining under sections 34, 35 or 36. If a defendant is banned from personally cross-examining a particular witness, the court will ask him to appoint his own legal representative to carry out that cross-examination, and to let the court know that he has made an appointment by a set time. If he does not, the court will know before the start of the proceedings that no legal representative has been appointed.
140.If the defendant does not appoint a legal representative, the court will have to consider whether it is necessary, in the interests of justice, for the witness’s evidence to be tested. If it decides that it is, it will appoint a legal representative with rights of audience in the court to cross-examine the witness in the interests of the defendant. However, a court-appointed representative will not have been instructed by the defendant and so cannot be responsible to him (subsection (5)).
141.Rules of court will cover, among other things, how a legal representative appointed by the court would be given evidence or other material relating to the proceedings so that he could test the witness's evidence (subsections (6) and (7)).