Evidence in Chief, Cross-examination and Re-examination (NSW)

In criminal proceedings, giving evidence in court is typically a three part process. 

This involves:

• Examination in chief
• Cross examination; and 
• Re-examination.

The rules of Evidence in NSW are governed by the Evidence Act 1995 (NSW), and are complicated. Whilst persons are not required to have a lawyer represent them at Court, one of the most difficult processes for people to engage in is the process of giving evidence and questioning witnesses if they do not have an understanding of the law in this area. 

What is examination-in-chief?

During examination-in-chief, a witness gives their evidence by responding to questions posed by the party who summoned them. 

For example, if the witness is a witness in the prosecution case, the prosecutor will be asking the questions to elicit their evidence in chief. 

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 statement to the police outlining their evidence, however, when testifying, those statements are not tendered to the Court and the witness has to give their evidence orally in Court from memory (and cannot have a copy of that statement in front of them to read from). A common exception to this is when there is a “DVEC” (which is a video recorded statement of a person’s evidence in a domestic violence matter) as these will typically be played by the prosecution at Court.

Questioners are not permitted to ask leading questions during examination in chief – this means, questions that might suggest an answer. The point of this rule is to try to ensure that witnesses can’t be “led” to provide certain answers by the questioner. 

For example, “was your shirt blue?” is a leading question. “What colour was your shirt” is not. 

What is cross-examination?

During cross-examination, the opposing party has an opportunity to ask the witness questions. 

Cross-examination is generally aimed at challenging whatever that witness’s evidence was, but good cross examination is an art form. 

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.

Like with Examination in Chief, there are limits on the questions that are permissible during cross-examination, as well as the types of witnesses that can be cross-examined by self-represented defendants. Importantly, if you are self representing in a domestic violence matter, you will not be permitted to ask questions directly to the complainant and will be appointed a “court appointed questioner.” 

What is re-examination?

Re-examination takes place after cross examination has concluded. It is not a mandatory part of the process and generally only occurs whether the person who had called the witness in the first place considers it necessary. Re-examination is limited to matters that arose in the witness’s evidence during cross examination and usually seeks to explain, elaborate or clarify evidence that was given in cross examination by the witness. 

Guide to giving evidence

• Tell the truth
• Answer the question and only the question
• Don’t:
  • Be argumentative – don’t get baited into an argument
  • Give “smart” answers
  • Be rude
  • Be angry
  • Raise your voice
  • Be flippant/Joke
• Do:
  • Be humble
  • Stay calm
  • Sit up straight, and in a natural position
  • Keep your voice clear (the microphone records, not amplifies)
• Make concessions if appropriate
  • Ie there is no point denying you were angry if you in fact were. Hiding these sorts of things will make your evidence sound less plausible.
• Don’t dodge a question
• If you make a mistake while giving evidence,  and you realise, DON’T try and bluff your way out of it. Correct your answer. Simply stop and start again. 
• Don’t try to pre-empt where the questioning is going – just answer.
• Don’t guess an answer – if you don’t know, say you don’t know
• Be specific – be careful of “well I would usually do”
• If there is an objection, stop talking
• There is a big difference between ‘I don’t know’ and ‘I don’t remember’
• If you miss the question, or you don’t understand it, say so. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.