Examination-in-Chief (WA)

When a witness gives evidence in court during a trial, contested hearing or committal hearing or some other proceeding this is known as examination-in-chief. Examination-in-chief involves a witness being asked questions by the party that has called them. After giving examination-in-chief, a witness is usually cross-examined by the opposing party. During cross-examination, the evidence they gave during their examination-in-chief is tested.

When a witness is called, they are asked their name and occupation and must take an oath or affirmation that the evidence they give will be the truth. The witness is then asked a series of questions, which they must answer as best they can. There are restrictions imposed by common law, the uniform Evidence Acts and other legislation as to what questions can be asked during examination-in-chief.

What Questions Are Not Allowed In Examination-In-Chief?

When a party is conducting examination-in-chief, it must avoid asking questions in a form that is impermissible. Doing so will usually lead to the other party objecting, interrupting the flow of the evidence and detract from its impact.

Leading questions

During examination-in-chief, leading questions are not permitted. Leading questions are questions that suggest the answer, like “Was the woman tall?” or “Was she wearing a black dress?” Instead, questions must be asked in a way that does not suggest the answer, such as, “How tall was the woman?” or “What was she wearing?”.

Relevance

Questions be limited to matters that are relevant to the proceeding. If you want to ask a question and its relevance is not immediately apparent, you should tell the court why the question is necessary and why it should be allowed to avoid objections.

Hearsay

Examination-in-chief questions should not invite answers that include inadmissible hearsay. Inadmissible hearsay is evidence given by one person of what someone else said where the evidence is given to establish the truth of the other person’s statement. 

Evidence of what someone else said is not inadmissible hearsay if it is given for a purpose other than establishing the truth of the other person’s statement. For example, if a person is facing a charge of making a threat, a witness can give evidence that the person made the threat. 

Opinion

A witness should not be asked for an opinion about a matter that is outside their area of expertise. However, a witness can be asked to give an opinion about something that is within common knowledge. For example, how fast a vehicle was travelling or how old a person was, but they should not be asked for an opinion on a matter that requires specialist knowledge, such as a medical assessment (unless they are suitably qualified.)

Children and Examination-In-Chief

A child can give evidence if the court can establish that they are capable of understanding that they must tell the truth to the court. This can be established in an age-appropriate way with regard to their age and level of maturity. A child does not have to give a formal oath or affirmation as an adult witness does.

Privilege Of Non-Incrimination

Witnesses are sometimes asked questions whose answers could incriminate them in criminal offending. A common example is “Had you taken any drugs that day?”

When a question like this is asked, the court will generally let the witness know that they do not have to answer. The witness can then choose to answer or not, knowing that they may incriminate themself if they answer.

The privilege of non-incrimination does not apply where an accused chooses to give evidence in their defence.

Unfavourable Witnesses

An unfavourable witness is a witness whose testimony does not help the case of the party that called them. A witness is unfavourable if they can’t remember the crucial facts in their original statement. The party that called them may ask the court for leave for the person to be allowed to reread their statement to refresh their memory. If they still cannot recall their evidence after doing so, they should be removed from the witness box.

Hostile Witness

A hostile witness is a witness who gives evidence that is harmful to the case of the party that called them. A witness is “hostile” if they deliberately give a different account from the evidence they gave in their original statement. If a witness is hostile, the party that called them can ask the court’s permission to treat them as a hostile witness. If this 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 self-representing in a contested matter, you must carefully prepare your examination-in-chief. Think about all the information you need to get from each witness and how you can elicit this information without using leading questions. In examination-in-chief, open or closed questions can be used. When you are getting a witness’s story from them, open questions are generally more useful. When you need a witness to give specific details, it may be preferable to use closed questions.

If you need legal advice or assistance in a criminal matter or any other legal matter, please contact Armstrong Legal.