Cross Examination

Question 1

What are the 2 purposes of cross examination

Answer 1

• to elicit information supporting the case of the party conducting the crossexamination
• to challenge the accuracy of the testimony given in evidence-in-chief (for example, by casting doubt on the witness’s veracity or by eliciting contradictory testimony)

Question 2

Cross examination is subject to various statutory controls in the Evidence Act. What are they?

Answer 2

• cross-examination duties – s92
• limits on cross-examination by parties in person – s95, and
• the prohibition on unacceptable questions – s85.

Question 3

Discuss the duty to “put the case” in a cross examination ie challenging on the stand

Answer 3

Whenever a party is intending to call evidence that will contradict the evidence in chief of a witness called by an opposing party, there is an obligation to put that contradictory material to the witness during cross-examination, so that he or she has an opportunity to comment on or explain it. Unless this is done, little or no weight may be attached to the contradictory material, or the opposing party may be granted leave to recall their witness for the purposes of rebuttal. This has been codified in s92 of the Evidence Act 2006

Question 4

S92 EA 06 Cross-examination duties

Answer 4

(1) In any proceeding, a party must cross-examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters.
(2) If a party fails to comply with this section, the Judge may—
(a) grant permission for the witness to be recalled and questioned about the contradictory evidence; or
(b) admit the contradictory evidence on the basis that the weight to be given to it may be affected by the fact that the witness, who may have been able to explain the contradiction, was not questioned about the evidence; or
(c) exclude the contradictory evidence; or
(d) make any other order that the Judge considers just.

Question 5

List the occasions when the duty of cross examination may arise.

Answer 5

• the cross-examination deals with “significant matters” in the proceeding, and
• the matters are “relevant” and “in issue” in the proceeding, and
• the matters “contradict the evidence of the witness”, and
• The witness may “reasonably be expected to be in a position to give admissible evidence on those matters”

Question 6

S85 EA 06 Unacceptable questions

Answer 6

(1) In any proceeding, the Judge may disallow, or direct that a witness is not obliged to answer, any question that the Judge considers improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand.
(2) Without limiting the matters that the Judge may take into account for the purposes of subsection (1), the Judge may have regard to—
(a) the age or maturity of the witness; and
(b) any physical, intellectual, psychological, or psychiatric impairment of the witness; and
(c) the linguistic or cultural background or religious beliefs of the witness; and
(d) the nature of the proceeding; and
(e) in the case of a hypothetical question, whether the hypothesis has been or will be proved by other evidence in the proceeding.

Question 7

S96 EA Cross-examination on previous statements of witnesses

Answer 7

(1) A party who cross-examines a witness may question the witness about a previous statement made by that witness without showing it or disclosing its contents to the witness if the time, place, and other circumstances concerning the making of the statement are adequately identified to the witness.
(2) If a witness does not expressly admit making the statement and the party wishes to prove that the witness did make the statement,—
(a) the party must show the statement to the witness if it is in writing, or disclose its contents to the witness if the statement was not in writing; and
(b) the witness must be given an opportunity to deny making the statement or to explain any inconsistency between the statement and the witness’s testimony.
(3) If a document is used by a defendant for the purpose of cross-examining a witness but is not offered as evidence by that defendant, the following rights of the defendant are not affected:
(a) the defendant’s right to make a no-case application; and
(b) the defendant’s rights in relation to the order of addressing the court.

Question 8

Summarise S96 EA 06 (Not restricted to Inconsistent statements.

Answer 8

• A witness may be cross-examined about a previous statement, whether in oral or documentary form (both consistent and inconsistent), without either being shown the statement or having its contents disclosed by the cross-examiner (although the questioner may do so if he or she wishes). The cross-examiner must “adequately identify” to the witness “the time, place and other circumstances concerning the making of the statement”.
• If the witness does not admit to making the statement, the cross-examiner may wish to prove the statement, in which case s96(2)(a) and (b) will apply.

Question 9

Discuss the limits on a Re-examination

Answer 9

After cross-examination by opposing counsel, the party who called the witness may re-examine that witness for the purposes of clarifying or qualifying any issue raised during cross-examination, but may not be questioned on any other matter, except with the permission of the judge.
If additional evidence is allowed by the judge, then the other parties must be allowed to cross-examine on the additional evidence, and the judge may also allow further re-examination on matters arising out of that cross-examination.