When a party calls a person to give evidence in a criminal proceeding, that party will elicit the person’s evidence from them in a process known as examination-in-chief. The witness’s evidence will then be tested by the opposing party in a process known as cross-examination. This page deals with examination-in-chief in South Australia.
Oath or affirmation
When a witness is first called to give evidence, they will be asked to make an oath or take an affirmation. This is a formal promise to tell the truth to the court to the best of their ability. While an oath is religious undertaking, whereby a person swears in the presence of God to tell the truth, an affirmation is the non-religious equivalent.
If a child is called as a witness, they will be asked to make a promise to tell the truth rather than taking a formal oath or affirmation.
Questions that are not allowed during examination-in-chief
The common law and the Evidence Act 1929 place limits on what can be asked during examination-in-chief. If a party asks a question that is not permitted, the other party will usually object.
Leading questions are not allowed during examination-in-chief except where the court gives leave. A leading question is a question that suggests the answer – for example, ‘was the man drunk?’
Instead, the witness should be asked open questions that do not ‘put words in their mouth’. For example, ‘how did the man seem?’ or ‘can you describe the state he was in?’
Questions that are not relevant
Under common law, questions must not be asked of a witness if they elicit information that is not relevant to the proceeding. If a party wants to pursue a line of questioning whose relevance is not immediately apparent, they should be prepared to explain to the court how the questioning is relevant and make a case for why it should be permitted.
One of the best-known rules of evidence is the hearsay rule. Under this common law rule, a witness must not give evidence of what another person said in order to establish the truth of the other person’s statement. However, a witness ma give evidence of what someone else said if they do so for a purpose other than establishing the truth of the statement.
A witness must not be asked questions that invite them to give an opinion unless it in on a matter that is within the ambit of common knowledge or the witness is an expert and the matter is within their area of expertise. For example, a witness may be asked how long they think an altercation lasted for, but they must not be asked to give a medical opinion unless they are a medical expert.
Cross-examination and re-examination
After a witness has finished their examination-in-chief, they will usually be subjected to cross-examination by the other party. During cross-examination, the opposing party will try to expose weaknesses in the witness’s evidence.
After cross-examination, the party that called the witness will be asked if they wish to re-examine them. Re-examination is an opportunity to address matters that arose during cross-examination and repair any damage that was done to a witness’s evidence.
During re-examination, questions that do not relate to the matter discussed during cross-examination will not be allowed.
If you are representing yourself in a contested criminal matter, you will be personally responsible for the examination-in-chief of the defence witnesses. You should prepare your examination-in-chief of every witness very thoroughly. Consider the information you need to get from each witness and how best to get it without asking any impermissible questions. It is advisable to use open-ended questions when eliciting a witness’s evidence from them, but when you need a specific detail, you may need to use a closed question.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.