Cross-examination and Re-examination (NSW)
In criminal proceedings, witnesses present their testimony in court through a process called examination-in-chief. The opposing party then typically cross-examines the witness, and subsequently, the party who initially called them may conduct re-examination if necessary. This page focuses on cross-examination and re-examination in New South Wales.
What is examination-in-chief?
During examination-in-chief, a witness provides their testimony, responding to questions posed by the party who summoned them. Any person who is competent and compellable to give evidence can be called as a witness, including children, laypeople and experts.
Each witness is required to take an oath or affirmation that they will tell the truth before responding to a series of questions to the best of their ability. Prosecution witnesses have usually already provided a written statement to the police outlining their evidence. However, when testifying, witnesses are generally expected to rely on their memory without referencing their statement.
Both common law and legislation establish limitations on the types of questions that can be asked during examination-in-chief. Questions that invite hearsay evidence, personal opinions, or information that is not relevant to the proceedings are not permissible.
What is cross-examination?
During cross-examination, the opposing party challenges the testimony of the witness by seeking to expose weaknesses in their evidence. This takes place after the witness has provided their evidence-in-chief. The purpose of cross-examination is to shed light on any gaps or inconsistencies in the witness’s testimony and to extract facts that support the case of the party conducting the cross-examination.
Cross-examination may involve posing questions that suggest that the witness has been dishonest or is mistaken and suggesting that the actual events were different from the version that was presented in their evidence-in-chief. These questions are based on the accused’s instructions.
There are limits on the questions permissible during cross-examination, as well as the types of witnesses that can be cross-examined by self-represented defendants. These rules aim to safeguard the rights of witnesses while ensuring that the accused receives a fair trial.
Limits on cross-examination
Under section 41 of the Evidence Act 1995, a court is prohibited from permitting certain types of cross-examination questions, including those that:
- Mislead or cause confusion
- Unreasonably annoy, harass, offend, intimidate, repeat, humiliate, or oppress
- Are presented in a tone that belittles, insults, or is otherwise inappropriate
- Are solely based on stereotypes, such as the witness’s gender or race.
Under section 42 of the Evidence Act 1995, the court has the discretion to disallow a leading question or instruct a witness not to answer a leading question during cross-examination. Additionally, cross-examination questions that result in inadmissible hearsay, opinion evidence, or evidence unrelated to the proceedings are also not permitted.
What is re-examination?
Re-examination takes place when the party that originally called a witness wishes to ask them further questions after they have been cross-examined. This may be because doubts were cast over the witness’s evidence during cross-examination or because uncertainties have arisen about specific matters during cross-examination.
Under section 39 of the Evidence Act 1995, unless a party is granted permission by the court, a witness cannot be questioned about topics that are not related to those arising from the cross-examination. During re-examination, additional evidence relevant to matters raised during cross-examination can be introduced in order to provide clarification of ambiguities that arose during cross-examination and to restore the witness’s credibility where this has been compromised.
Re-examination serves as a valuable tool for addressing ambiguities and rectifying any damage inflicted upon a witness’s credibility cross-examination.
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