What Happens During Examination in Chief? Leading Questions, Notes and Witness Rules

Examination in chief is the first stage of a witness's evidence, when the party that called the witness asks the questions; under the Evidence Act 1995 (Cth) and the ACT's matching Evidence Act 2011, leading questions, which suggest an answer or assume a disputed fact, are not allowed unless the court gives leave or an exception applies, and a witness may use a document to refresh their memory in the witness box only with the court's leave.

Checked on 23 October 2026 against the Evidence Act 1995 (Cth) and the Evidence Act 2011 (ACT).

How questioning works

• Three stages: the party who called the witness asks questions first (examination in chief); then the other parties may cross-examine; then the first party may re-examine. Unless the court directs otherwise, cross-examination does not start before examination in chief, and re-examination waits until every party who wants to cross-examine has done so.
• The court is in control: it can make orders about how witnesses are questioned, the documents used, the order of questioning, and who is present.
• The witness's own words: a party may question its witness in any way it thinks fit, subject to the Act and the court. The court can let the witness tell their account in narrative form, and allow charts or summaries that help explain other evidence.
• Interpreters and communication: a witness can give evidence through an interpreter unless they understand and speak English well enough, and a witness who cannot hear or speak adequately may be questioned, or give evidence, in any appropriate way.

Leading questions

A leading question is one that directly or indirectly suggests a particular answer, or assumes a disputed fact that the witness has not yet given evidence about ("You saw the red car run the light, didn't you?"). Under section 37, a leading question must not be put in examination in chief or re-examination unless:

• the court gives leave;
• it relates to a matter introductory to the witness's evidence, such as their name or occupation;
• no objection is made and every other party has a lawyer or prosecutor;
• it relates to a matter that is not in dispute; or
• the witness has specialised knowledge from training, study or experience, and the question asks for their opinion on a hypothetical set of facts that are, or will be, in evidence.

In civil cases, the rule generally does not apply to questions about an investigation, inspection or report the witness made as part of public or official duties. Leading questions are allowed in cross-examination.

Refreshing memory, and police statements

• Notes and documents in the witness box: a witness must not use a document to try to revive their memory while giving evidence unless the court gives leave. The court considers whether the witness could remember adequately without it, and whether the document was written or made by the witness while events were fresh in their memory, or checked by them as accurate at that time.
• Reading it out: with leave, the witness can read aloud the relevant part as part of their evidence, and the court can direct that it be shown to the other parties.
• Refreshing memory before court: if a witness used documents outside court to revive their memory, a party can ask the court to order that they be produced; if that order is ignored without reasonable excuse, the court can refuse to admit the related evidence.
• Police officers: in a criminal case a police officer can give evidence in chief by reading, or being led through, their own written statement, but only if it was made at or soon after the events, signed when made, and given to the accused or their lawyer a reasonable time before the hearing.

When the evidence goes wrong, and after examination in chief

• If the witness does not come up to proof: when a witness gives evidence unfavourable to the party that called them, does not make a genuine attempt to give evidence, or may have made an earlier inconsistent statement, that party can ask the court for leave to question them as though cross-examining (section 38). See our page on unfavourable ("hostile") witnesses.
• Re-examination is limited to matters arising out of the cross-examination; other questions need the court's leave.
• Protection in cross-examination: the court must disallow questions that are misleading or confusing; unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; put in a belittling or insulting manner or tone; or based only on a stereotype. A question is not improper just because it challenges the witness's truthfulness.
• Self-incrimination: a witness can object to giving evidence that may tend to prove they committed an offence or are liable to a civil penalty. If the court finds reasonable grounds, the witness need not give it unless the court requires it in the interests of justice (and it does not concern foreign law); if the evidence is given, the court gives a certificate, and the evidence and anything obtained from it cannot be used against the witness in an Australian court, except in a prosecution for giving false evidence. This protection does not cover an accused person's evidence that they did the act in issue or had the state of mind in issue.

Which law applies: the Evidence Act 1995 (Cth) applies in federal courts, and the Evidence Act 2011 (ACT) applies in ACT courts with the same section numbers for these rules. Each state has its own Evidence Act, so check the law of the court where your case is heard.

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General information only, not legal advice. Updated 23 October 2026. Checked against the Evidence Act 1995 (Cth), Compilation No. 35 (10 June 2025, the current version on the Federal Register of Legislation), sections 4, 26 to 41 and 128 and the Dictionary, and the Evidence Act 2011 (ACT), Republication No 13 (effective 26 April 2024), on 23 October 2026.