When a witness gives oral evidence during a court proceeding, they undergo examination-in-chief followed by cross-examination. Examination-in-chief occurs when the witness is recounting their story in response to questions from the party that called them to give evidence. In cross-examination, this evidence is tested by the other party. This page deals with examination-in-chief in the ACT.
When a witness is called to give evidence, they will first be asked their name and required to take an oath or make an affirmation to the effect that their evidence will be the truth. If the witness is a child, they will make a promise to tell the truth rather than a formal oath or affirmation.
The witness will then be asked a series of questions, which they must answer as best they can. Common law and the Evidence Act 2011 impose restrictions on what questions can be asked during examination-in-chief.
What questions are not allowed?
When conducting examination-in-chief parties must avoid asking questions in a way that is not permitted. Doing so will usually lead to an objection, which will interrupt the flow of the witness’s evidence and detract from its impact.
During examination-in-chief, leading questions are not permitted unless the court gives leave (section 37, Evidence Act 2011). Leading questions are questions that suggest the answer – such as, ‘Was the woman tall?’ or ‘Was she wearing a black dress?’ Instead, the witness must be asked open questions that do not ‘put words in the witness’s mouth’. For example, ‘How tall was the woman?’ or ‘What was she wearing?’
Questions that are not relevant
Evidence in chief must be limited to matters that are relevant to the proceeding. Evidence that is not relevant is not admissible (section 56, Evidence Act 2011)
If a party intends to ask questions whose relevance is not immediately apparent, they should explain to the court the reasoning behind their line of questioning and why it should be allowed.
Questions should not be asked that invite a witness to give evidence that is inadmissible hearsay. Inadmissible hearsay evidence is where a witness tells the court what someone else said in order to establish the truth of the other person’s statement (section 59, Evidence Act 2011).
Evidence of what another person said is not inadmissible hearsay if it is given for a purpose other than establishing the truth of the statement.
A witness should not be asked a question that invites them to give an opinion other than an opinion about a subject that falls within the scope of common knowledge. For example, a witness may be asked how fast they think a vehicle was traveling or how old a person appeared to be, but they should not be asked for a medical opinion unless they have the relevant qualifications and experience to give expert evidence.
Privilege of non-incrimination
While giving evidence, a witness may be asked a question whose answer could incriminate them in an offence other than the one that is being tried. A common example is ‘had you taken any drugs that day?’
Questions that may incriminate a witness will generally not be disallowed, but the judge or magistrate will advise the witness that they do not have to answer the question. The witness can then decide whether to answer the question.
The privilege of non-incrimination does not apply when an accused person chooses to give evidence in their defence.
After a witness has completed their examination-in-chief and been cross-examined by the opposing party, the party that called the witness may re-examine them. During re-examination, the witness may be asked about matters that arose during their cross-examination. A witness may not be questioned about other matters unless the court gives leave.
Preparing your examination-in-chief
If you are representing yourself, you will be personally responsible for conducting the examination-in-chief of your witnesses. You should prepare this very carefully. Consider all the information you need to get from each witness and how best to get this information without asking leading questions. In examination-in-chief, you may use open questions or closed questions. When you are eliciting a witness’s story from them, it is advisable to use open questions, but when you require a specific detail, you may need to ask a closed question.