Witness evidence: examination-in-chief, cross-examination and re-examination

Questioning has three different functions. Examination-in-chiefGlossary termExamination-in-chief is questioning by the party calling the witness. Cross-examinationGlossary termCross-examination is questioning by an opposing party to test the account and put a material competing case. Re-examinationGlossary termRe-examination is further questioning by the calling party on matters arising from cross-examination. The sequence is governed by CrimPR 24.4 and 25.11; it is not three unrestricted opportunities to obtain the desired answer.

Chief allows the witness to give their own account. A leading questionGlossary termLeading question suggests the answer wanted or assumes a disputed fact. Leading questions are ordinarily prohibited on disputed matters in examination-in-chief. Introductory or genuinely undisputed matters can be dealt with by leading questions where appropriate; a different approach may require the court’s permission. Do not assume that every question beginning “Did” is leading or that a long, open-looking question cannot contain a disputed assumption. Ask short, comprehensible questions which let the witness supply the disputed information.

Cross tests, but it is not a licence to mistreat. Leading questions are ordinarily permitted. Their function can be to test what the witness saw, heard, remembered or inferred, or to put a supported alternative account. Where a positive factual case will contradict a witness on a material issue, its substance should ordinarily be put fairly so the witness can answer. An advocate cannot save a knowingly false accusation by calling it “just a question”. Repetition, bullying, irrelevant character attacks and questions prohibited by a ground-rules direction remain impermissible.

Re-examination clarifies what cross has raised. It is not a second examination-in-chief or an opportunity to repair every omission in the original account. If new material genuinely needs to be introduced, seek permission; fairness may require further cross-examination on it. The calling party must not coach a witness into retracting an inconvenient answer. The Rules expressly confine ordinary re-examination to matters arising out of cross-examination.

A question is not proof of its premise. An advocate’s accusation does not become evidence merely because it was asked. The witness’s answer is evidence; a denied proposition requires proof from some other admissible source if the party wishes to establish it. An advocate’s personal certainty is not an exhibit, and an unanswered rhetorical question cannot establish an element of the offence.

Multiple defendants affect the order, not the basic functions. Subject to the judge’s directions, each defendant can cross-examine a prosecution witness. Where a witness gives evidence for one defendant, other defendants ordinarily cross-examine before the prosecutor; the calling party then re-examines. CrimPR 25.11(4) provides the sequence. Do not assume that “the defence” is always a single party with a common factual case.

The court controls fairness. It may ask necessary questions while remaining impartial. The witness’s ability to understand and answer, oath or affirmation, special measures and limits on personal cross-examination must be addressed under their own rules. A general right to test evidence is not a right for an unrepresented defendant personally to question every witness. Ground rules can alter the form and duration of questioning; a witness’s communication needs must not be confused with a decision that their evidence is true or false. Deep Dive 9 provides the detailed competence, compellability and assistance rules; CrimPR Parts 18 and 23, r 3.9 and r 25.11 supply the procedural connections.