This article was written by Fernanda Dahlstrom - Content Editor - Brisbane
Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.
Examination-in-Chief
When a witness for the prosecution or defence gives evidence in court during a trial, contested hearing or committal hearing, this is known as examination-in-chief. Examination-in-chief is when a witness is asked questions by the party that has called them. After giving examination-in-chief, witnesses are cross-examined by the other party. During cross-examination, their evidence is tested.
When a witness is called to give their examination-in-chief they are asked their name and must take an oath or affirmation that their evidence will be the truth. They are then asked a series of questions, which they must try to answer to the best of their ability. Restrictions are imposed by common law, the uniform Evidence Acts and other legislation on what questions can be asked during examination-in-chief.
What questions are not allowed in examination-in-chief?
When conducting examination-in-chief, parties must avoid asking questions in an impermissible form. Doing so will usually lead to an objection from the other party, which will interrupt the flow of the evidence and detract from the witness’s impact.
Leading questions
During examination-in-chief, parties must not ask leading questions. Leading questions are questions that suggest an answer, like “Was the person tall?” or “Were they wearing a red jumper?”. Instead, ask open questions that do not suggest the answer, such as, “How tall was the person?” or “What were they wearing?”.
Relevance
Questions asked during examination-in-chief must be limited to matters that are relevant. If you want to ask a question and the relevance of the question is not immediately apparent, you should explain to the court why the question is necessary and why it should be allowed.
Hearsay
Examination-in-chief questions should not invite a witness to give evidence to the court that is inadmissible hearsay. Inadmissible hearsay evidence is evidence given by one person of what someone else said in order to establish the truth of the other person’s statement. However, evidence of what someone else said is not inadmissible hearsay if the evidence is given for a purpose other than establishing the truth of the statement. For example, if a person is charged with making a threat, a witness can give evidence that they heard the accused make the threat.
Opinion
A witness should not be asked to give an opinion about something that is outside their area of expertise. A witness can, however, be asked to give an opinion about something that is common knowledge. For example, a witness can be asked how fast a vehicle was travelling or how old a person was, but they should not be asked to give an opinion that requires specialist knowledge, such as a medical opinion (unless they are suitably qualified.)
Can a child give examination-in-chief?
A child can give evidence in a criminal proceeding if the court can establish that the child is capable of understanding the duty to tell the truth to the court. This can be established in an age-appropriate way for the child’s age and level of maturity. A child does not have to give an oath or affirmation in the formal manner that an adult witness does.
Privilege of non-incrimination
It is possible that during their evidence, a witness may be asked a question whose answer could incriminate them in criminal offending other than the offending that is being dealt with. A common example of a question that could incriminate a witness is “Had you taken any drugs that day?”
Questions that could incriminate a witness will generally not be disallowed, but the court will generally inform the witness that they do not have to answer. The witness can then choose to answer the question or not to, knowing that they may incriminate themself if they answer.
The privilege of non-incrimination is lost where an accused chooses to give evidence in their defence.
Unfavourable witnesses
If a witness’s testimony does not help the case of the party that called them, they are referred to as an unfavourable witness. A witness is unfavourable if they can’t remember the crucial facts in the statement they originally gave to the prosecution or defence. The party that called the unfavourable witness may ask the court for leave for the witness to be allowed to reread their original statement to refresh their memory. If after rereading their statement, the witness still cannot recall their evidence, they should be removed from the witness box.
Hostile witness
If a witness gives evidence that is harmful to the case of the party that called them, they are known as a “hostile witness”. A witness is “hostile” if they deliberately give different evidence from the evidence they gave in their original statement. If a witness is hostile, the party calling them can ask permission from the court to treat them as a hostile witness. If permission is granted, the party will be allowed to cross-examine the witness and suggest to them that they are not being honest.
Preparing your examination-in-chief
If you are representing yourself in a contested matter, you must carefully prepare your examination-in-chief. Think about all the information you need from a witness and how you can get this information without resorting to leading questions. In examination-in-chief, you are allowed to use open or closed questions. When you are eliciting a witness’s story from them, it is generally better to use open questions. When you need a witness to give specific detail, you may have to ask a closed question.
If you need legal advice or assistance in a criminal matter or any other legal matter, please contact Armstrong Legal.