Examination-In-Chief (WA)

Examination-in-chief is the oral evidence that a witness gives in response to questions asked by the party that called them. After examination-in-chief is finished, the witness is usually cross-examined by the other party. This page deals with examination-in-chief in Western Australia.

Legislation

The rules of evidence in WA are set out in the Evidence Act 1906.

Giving evidence

When the defence or prosecution calls a witness to give evidence, the witness will be asked to state their full name and occupation. They will also be required to take an oath or give an affirmation that the evidence they give will be truthful. An oath involved swearing to God that the person will be truthful. An affirmation is the same declaration in a secular form.

The witness is then asked a series of questions. The rules of evidence limit what a witness can be asked so as to prevent inadmissible evidence from being adduced in court.

What is not allowed during examination-in-chief?

When a witness is being subjected to examination-in-chief, the party who is taking the witness through their evidence must not ask them leading questions. They also must not be asked questions that invite them to give evidence that is inadmissible hearsay, that is not relevant, or that is an opinion.

Leading questions

A leading question is a question that suggests the answer.

A lawyer who is conducting examination-in-chief must not ask leading questions. This is because leading questions prompt witnesses to give particular answers. Open questions allow a witness to give their answers freely and according to their recollection, rather than influencing them to say certain things.

For example, a witness giving examination-in-chief should not be asked, ‘Did the man have black hair?’ Rather, they should be asked, ‘What colour hair did the man have?’ They should not be asked, ‘Was the man drunk?’ Rather, they should be asked, ‘How did the man seem?’

Opinion

As a general rule, opinion evidence is not admissible, however, there are exceptions to this.

A witness can give opinion evidence about matters that are common knowledge such as how old a person appeared to be, approximately how fast a vehicle was travelling or whether someone was intoxicated.

A witness should not be asked to give an opinion about an issue that requires expertise unless they are a relevantly qualified expert. For example, a witness cannot give an opinion about a medical condition unless they are a doctor.

Relevance

Questions asked of witnesses during examination-in-chief should relate to the issues relevant to the proceeding. If a party wants to ask a question whose relevance is not obvious, they should explain to the court why the question should be allowed.

Hearsay

Examination-in-chief questions should not elicit answers that contain inadmissible hearsay. Inadmissible hearsay is evidence of what another person said that is given in order to establish the truth of the other person’s statement. However, it is not inadmissible hearsay to give evidence of what someone said for a reason other than to establish that the statement was true.

For example, if Person A gives evidence that Person B said that Person C had assaulted him, this is inadmissible hearsay. This is because the evidence is being given to establish that Person C assaulted Person B, when Person A does not have direct knowledge of this. However, if Person A gives evidence that Person B said that he was going to kill Person A, this is not inadmissible hearsay. In this case, the evidence is being given to establish that a threat was made and not to establish that the statement was true.  

Children

A child can give evidence in court provided the court can establish that the child understands the difference between truth and lies. A child does not have to give a formal oath or affirmation.

Unfavourable witnesses

An unfavourable witness is a witness whose evidence does not assist the party that called them. A witness may be unfavourable because they cannot remember crucial parts of their testimony. When this occurs, the witnessed may be permitted to refresh their memory by rereading the statement they gave to police.

Hostile witnesses

A hostile witness is a witness who gives evidence that damages the case of the party that called them. This is generally because they are being compelled to give evidence but have no desire to assist the prosecution case. A hostile witness may be lying to protect another person such as a co-offender.

In this situation, the party that called the witness can ask the court to find that the person is a hostile witness. This allow the party that calls them to cross-examine them. This means they can be asked leading questions, and confronted with prior statements they have made that are inconsistent with statement they are making in their evidence. The party will be able to suggest that the witness is not being honest.

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