Cross-Examination (WA)

In contested criminal matters, a large portion of the evidence often consists of examination-in-chief and cross-examination. Cross-examination occurs when one party challenges and tests the evidence of a witness called by the other party. This may involve exposing weaknesses in their evidence and eliciting facts from the witness that help the cross-examining party’s case. Cross-examination of a witness occurs after the witness has finished their examination-in-chief.

The common law places limits on what can be asked during cross-examination. The Evidence Act 1906 also imposes limits on cross-examination in Western Australia. In all states and territories, there are laws that prohibit self-represented defendants from cross-examining certain classes of witnesses such as complainants in sexual assault matters. These laws exist to balance the rights of witnesses with the right of an accused person to a fair trial.

Inadmissible cross-examination questions

Cross-examination questions must not invite answers that are inadmissible. If a party thinks that a cross-examination question being asked by the other party invites inadmissible evidence, they may object and the court may disallow the question or allow the party to proceed. Sometimes it may be unclear whether a question should be allowed and the court may need to hear submissions as to why the question should or should not be allowed.

Hearsay

Parties may not ask questions during cross-examination that invite the witness to give inadmissible hearsay evidence. This is evidence of what someone else said when the evidence is given to establish the truth of the other person’s statement. However, it is not inadmissible hearsay to give evidence of what another person said, for another purpose.

Relevance

Parties are not permitted to ask cross-examination questions that are not relevant to the matters that need to be determined in the proceeding. If a party wishes to ask questions whose relevance is not obvious, they will be need to explain to the court why the questions are relevant and should be allowed.

Opinion

Parties must not ask witnesses to give opinions that they are not qualified to give. For example, if a witness is a layperson, they must not be asked to give a medical opinion.

It is, however, permissible to ask a lay witness to give an opinion on something that is within the realm of common knowledge – such as how old a person appeared to be or how fast a vehicle was moving.

Expert Evidence

A witness who has been called as an expert, such as a doctor or psychologist, may be cross-examined about their qualifications and experience and how they arrived at their conclusions. If there are other expert opinions that contradict the expert evidence that the witness has given, these may be put to them in cross-examination.

Improper Cross-Examination Questions

Under section 26 of the Evidence Act 1906, the court may disallow a cross-examination questions that is:

• Misleading
• Annoying, harassing, intimidating, or offensive

Conducting cross-examination

If you are representing yourself in a contested criminal matter, you will be personally responsible for cross-examining the prosecution witnesses. It is important to prepare your cross-examination of each witness thoroughly by considering what concessions you need the witness to make and how best to achieve this.

Unlike in examination-in-chief, leading questions are permitted in cross-examination. In fact, leading questions are generally more effective than open-ended questions as they allow only brief answers and keep the witness tightly controlled. Open-ended questions, such as “What happened next?” should not be asked during cross-examination as they give a witness too much freedom to explain themselves.

Once you have obtained the concessions you need from each witness, stop.

If you need legal advice or representation in any other legal matter please contact Go To Court Lawyers.