Chapter 2 Div 4

Question 1

When can a leading question be asked?

Answer 1

A “leading question” is defined in the Dictionary as a question that directly or indirectly suggests a particular answer, or that assumes the existence of a disputed fact on which the witness has not given evidence.

(b) On cross-examination, leading questions are generally permitted unless the court disallows the question or directs the witness not to answer (s 42(1)) in accordance with ss 42(2) (circs are usually where witness has effectively become their witness) and 42(3), and 192(2) (Stanoevski).
(c) Leading questions may also be used to question an unfavourable witness under s 38 which is taken to be cross-examination (s 38(2)).
(d) Leading questions generally cannot be asked during examination in chief and re-examination, unless:
i) The court grants leave (c.f. s 192(2)),
ii) The question relates to matter introductory to the witness’s evidence,
iii) No objection is made (and all other parties are represented),
iiii) The question relates to matter not in dispute, or
v) In the case of expert witnesses, questions soliciting the witness’s opinion on hypothetical facts (s 37(1)).
(e) In civil proceedings, leading questions may be asked in relation to investigation, inspection or report that the witness prepared in the course of carrying out public or official duties (s 37(2)).
(f) The court also retains broad powers to allow leading questions under ss 11 and 26.

Question 2

What types of questions can be asked on re-examination?

Answer 2

Unless the Court gives leave, limited to matters arising out of evidence given in cross examination: s 39

Question 3

Your witness is being evasive - what can you do?

Answer 3

(a) Assuming that attempts to “refresh” the witness under s 32 ineffective or unavailable, I can seek leave under s 38 to question the witness as though cross-examining, including by asking leading questions (s 42).
(b) Section 38(1) allows such leave where the witness’s evidence that is “unfavourable” to a party, or where it appears to the court that the witness is not making a genuine attempt to give evidence, or where the witness has given a prior inconsistent statement.
(c) Section 38 imposes a lower threshold than the common law requirement that party’s witness be “hostile” in order to be cross-examined.
(d) There is some disagreement as to what will constitute “unfavourable” evidence simply means “not favourable” (R v Souleyman), or whether the evidence must be adverse and not merely neutral (Klewer v Walton).
(e) If leave is granted, s 38 does not permit general cross-examination, and questioning must be limited to the evidence establishing the grounds for leave under s 38(1) (R v Hogan), or matters about the factual state of affairs relating to those grounds (R v Le)
(f) Leave under s 38(1) may also permit questioning the witness about matters solely relating to credibility (but admissibility is governed by Pt 3.7) (s 38(3)).
(g) In considering leave, court will have regard to whether the party gave notice of his or her intention to seek leave at the earliest opportunity, and the extent to which, and matters on which the witness will be questioned by another party (s 38(6))
(h) The court will also have regards to the matters in s 192(2) (Stanoevski), and whether granting leave will give rise to prejudicial matters for which exclusion under ss 135 and 137 may be appropriate (R v Hogan).

(Amy to confirm current)