Cross-examination and Re-examination (NSW)

By James Stevens, Director and Solicitor, Go To Court Lawyers. Last reviewed 14 April 2026.

When a party to a criminal matter calls a witness to give evidence, the witness gives their evidence in the form of examination-in-chief. The witness is usually then cross-examined by the other party and may then be re-examined by the party that called them. This page deals with cross-examination and re-examination in New South Wales.

Understanding the process of witness examination is crucial for anyone involved in criminal proceedings in NSW. The Evidence Act 1995 (NSW) and Criminal Procedure Act 1986 (NSW) provide the legal framework governing how witnesses can be questioned, ensuring both fairness to the accused and protection for witnesses.

What is examination-in-chief?

Examination-in-chief is when a witness gives their testimony to the court, in response to questions by the party that called them. Any person who is competent and compellable as a witness may be called to give evidence, including children, experts and laypeople.

The witness is required to take an oath or affirmation, undertaking to tell the truth, and is then asked a series of questions which they must answer as best they can. If the witness is a prosecution witness, they will have already provided a written statement to the police outlining their evidence. However, a witness will generally be asked to give their evidence from memory and without referring to their statement.

Common law and legislation impose restrictions on what questions can be asked during examination-in-chief. Questions that invite hearsay evidence, opinion evidence or evidence that is not relevant to the proceeding are not permitted.

Purpose of examination-in-chief

The primary purpose of examination-in-chief is to present the witness's version of events in a clear and coherent manner. The examining lawyer will typically structure questions chronologically, allowing the witness to tell their story naturally while ensuring all relevant facts are covered. This process helps establish the foundation of a party's case and provides the court with essential evidence to consider.

What is cross-examination?

Cross-examination is when a party attempts to challenge or undermine the evidence of the other party's witness by exposing weaknesses in their evidence. Cross-examination of a witness occurs after the witness has given their evidence-in-chief.

Cross-examination aims to highlight gaps and inconsistencies in a witness's testimony and to elicit facts that assist the cross-examining party's case. It may include questions that suggest that the witness is being dishonest or is mistaken and that what actually occurred was different to the version of events that the witness related in their evidence-in-chief. These questions will be based on the defendant's version of events.

There are rules limiting what can be asked during cross-examination and what types of witnesses can be cross-examined by self-represented defendants. These rules aim to protect the rights of witnesses while allowing accused persons to receive a fair trial.

Techniques used in cross-examination

Skilled legal practitioners employ various techniques during cross-examination to challenge witness testimony effectively. These may include confronting the witness with prior inconsistent statements, questioning their ability to observe or recall events accurately, or highlighting potential bias or motive to lie. The cross-examining lawyer may also use the witness's own evidence to support alternative interpretations of events.

Strategic considerations

Cross-examination requires careful strategic planning. Lawyers must decide which points to challenge and which to leave alone, as unsuccessful cross-examination can actually strengthen the witness's credibility. The rule of thumb is never to ask a question unless you know the answer or are prepared to accept any answer the witness might give.

Limits on cross-examination

Under section 41 of the Evidence Act 1995, a court must not allow a cross-examination question that is:

• Misleading or confusing;
• Is unduly annoying, harassing, offensive, intimidating, repetitive, humiliating or oppressive;
• Is put in a tone that is belittling, insulting or otherwise inappropriate;
• Has no basis other than a stereotype (for example, relating to the witness's sex or race)

Under section 42 of the Evidence Act 1995, the court may disallow a leading question or direct a witness not to answer a leading question.

Cross-examination questions that elicit answers that involve inadmissible hearsay, opinion evidence or evidence that is not relevant to the proceeding are also not permitted.

Judicial discretion and witness protection

NSW courts have broad discretionary powers to control cross-examination proceedings. Under section 26 of the Evidence Act 1995 (NSW), the court may make orders to protect witnesses from harassment or distress. This is particularly important when dealing with vulnerable witnesses, including children, victims of sexual assault, or witnesses with cognitive impairments.

What is re-examination?

Re-examination occurs when the party that called a witness wishes to ask them further questions after they have been subjected to cross-examination. This may be because cross-examination has cast doubts over the evidence that was given during examination-in-chief or because it has created uncertainty about particular matters.

Under section 39 of the Evidence Act 1995, a witness may not be questioned about other matters (other than those arising out of cross-examination) unless the court gives leave.

Additional evidence can be adduced during re-examination provided it has a bearing on matters that arose during cross-examination.

Re-examination can be a valuable tool for clearing up ambiguity and repairing damage done to the credibility of a witness during cross-examination.

Scope and limitations of re-examination

The scope of re-examination is strictly limited to matters that arose during cross-examination. The examining party cannot use re-examination as an opportunity to introduce entirely new evidence or to cover matters they forgot to address during examination-in-chief. Any attempt to go beyond these boundaries will likely be objected to by opposing counsel and disallowed by the court.

Special provisions for vulnerable witnesses in NSW

New South Wales has implemented comprehensive protections for vulnerable witnesses in criminal proceedings. The Criminal Procedure Act 1986 (NSW) provides various alternative arrangements for giving evidence, including closed-circuit television, pre-recorded evidence, and the use of support persons.

Children and cognitive impairment

Special provisions apply when examining children or witnesses with cognitive impairment. Section 306M of the Criminal Procedure Act 1986 (NSW) allows for the use of intermediaries to assist these witnesses. Cross-examination of child witnesses is subject to additional restrictions, with courts required to consider the age and maturity of the child when determining appropriate questioning methods.

Sexual assault complainants

The Evidence Act 1995 (NSW) contains specific protections for complainants in sexual assault matters. Sections 293-294A restrict cross-examination about the complainant's sexual history, requiring leave of the court and satisfaction of strict criteria before such questions can be asked. These provisions aim to prevent irrelevant and prejudicial questioning that might deter complainants from reporting offences.

The role of objections during witness examination

Legal practitioners have an important duty to object to improper questions during all phases of witness examination. Common grounds for objection include relevance, leading questions during examination-in-chief, argumentative questions, and questions that call for hearsay or opinion evidence.