Cross-examination and Re-examination (NSW)
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.
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.
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.
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.
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.
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