Cross-examination occurs when a party in a contested proceeding questions a witness called by the other party to try to expose weaknesses in the witness’s evidence. The cross-examination of a witness occurs after the witness has completed their examination-in-chief. This page deals with cross-examination in criminal proceedings in South Australia.
Purpose of cross-examination
Cross-examination aims to discredit a witness or highlight the weaknesses in their testimony. This may include exposing inconsistencies, finding gaps and eliciting facts that help the cross-examining party’s case. Both the common law and the Evidence Act 1929 place limits on what can be asked during cross-examination. These limits seek to protect the rights of witnesses while allowing defendants to receive a fair trial.
Under the common law, a cross-examination question will not be allowed if it does not relate to a matter that is relevant to the proceeding. If a party wishes to ask a question whose relevance is not immediately apparent, they should be prepared to explain to the court how it is relevant and persuade the judge or magistrate to allow It.
Under section 12 of the Evidence Act 1929, the court may disallow a question that appears vexatious and is not relevant to the proceeding.
Under the common law, a cross-examination question that invites the witness to give an opinion will not be allowed unless it related to a matter that falls within common knowledge, or unless the witness is an expert witness. For example, a lay witness may be asked to give an estimate as to how fast a vehicle was travelling but not to give a medical opinion.
Under the common law, evidence that is inadmissible hearsay must not be given or elicited. Inadmissible hearsay is evidence of what another person said that is given for the purpose of establishing the truth of the other person’s statement. It is permissible for a witness to give evidence of what someone else said if they do so for a purpose other than to establish the truth of the statement. For example, where a person is being tried for making a threat, evidence will generally need to be adduced that they made the threat.
Questions that impugn witness’ character
Under section 24 of the Evidence Act 1929, if a question put to a witness in cross-examination is not relevant to the proceeding except so far as it affects the credit of the witness by injuring his character, the court has a discretion to decide whether or not the witness must answer the question.
Inappropriate cross-examination questions
Under section 25 of the Evidence Act 1929, the court must disallow inappropriate questions put during cross-examination. These include questions that are:
- Misleading or confusing
- Expressed in unnecessarily complicated language
- Apparently based on a stereotype
- Unnecessarily repetitive, offensive or oppressive
- Put in a humiliating, insulting or otherwise inappropriate manner.
When a party calls a witness to give expert evidence, the expert will generally be cross-examined by the opposing party. This cross-examination may include questions about their qualifications and experience and how they formed their expert opinions. If there are other expert who have contradictory opinions, these opinions may be put to the witness to challenge and expose weaknesses in the evidence they have given.
When a person represents themselves in a contested criminal matter, they will personally be responsible for cross-examining the prosecution witnesses. These witnesses may include the alleged victims of the offence. In south Australia, a person is not permitted to personally cross-examine the alleged victim (section 13B, Evidence Act 1929).
Self-represented defendants should thoroughly prepare their cross-examination. This includes working out what points they need each witness to concede, and the best questions to achieve this without inviting objections from the opposing party.
Unlike in examination-in-chief, in cross-examination, leading questions are allowed. Leading questions are helpful as they allow for brief answers only and keep the witness tightly controlled. Open-ended questions should not be asked during cross-examination as they give the witness to much opportunity to explain themselves.
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