5. The Course of Evidence - Evidence in chief

Question 1

What is a leading question

Must Know

Answer 1

The Evidence Act 2006 defines a leading question as one that directly or indirectly suggests a particular answer to the question (s4).

Question 2

In realtion to the definition of leading questions in EA06, what does it not include?

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Answer 2

The Evidence Act 2006 definition does not include questions that assume the existence of a fact or disputed fact about which the witness has given no evidence (for example “When did you start hitting your wife?”). However, this type of question is likely to be disallowed under s85 which governs unacceptable questions (discussed below).

Question 3

The prohibition on leading questions is based on the belief that it will produce unreliable evidence. What are the reasons for prohibition?

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Answer 3

• There is a natural tendency for people to agree with suggestions put to them by saying “yes”, even if those suggestions do not precisely accord with their own view of what happened.
• Counsel asking leading questions of their own witnesses can more easily elicit the answers which they wish to receive, thereby reducing the
  spontaneity and genuineness of the testimony.
• There is a danger that leading questions will result in the manipulation or construction of the evidence through collusion, conscious or otherwise, between counsel and the witness.

Question 4

Ouline S89 EA06?

Answer 4

(1) In any proceeding, a leading question must not be put to a witness in examination in
chief or re-examination unless—
(a) the question relates to introductory or undisputed matters; or
(b) the question is put with the consent of all other parties; or
(c) the Judge, in exercise of the Judge’s discretion, allows the question.
(2) Subsection (1) does not prevent a Judge, if permitted by rules of court, from allowing
a written statement or report of a witness to be tendered or treated as the evidence in chief of that person.

Question 5

Leading questions may be allowed under S89(1)(c) in some circumstances. What are the circumstances?

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Answer 5

• To direct the witness’s attention to the subject of identification evidence (for example, “Was that the car you saw?”).
• In respect of questions about surrounding circumstances in order to jog a witness’s memory about some fact or event in issue, provided that the answer to the central question is not suggested in the question.
• To assist counsel in eliciting the evidence in chief of very young people, people who have difficulty speaking English, and people who are of limited intelligence. If allowed, the judge must ensure that the questions are genuinely necessary to elicit reliable evidence. It may be that allowing evidence to be given in an alternative way or providing a support person are better ways of addressing the problems of eliciting evidence from
  young or vulnerable witnesses.
• Where the witness has been declared hostile.