XM, XXM, REXM

Question 1

What is a leading question?

Answer 1

Q that directly or indirectly suggests a particular answer or assumes the existence of a disputed fact on which the witness has not given evidence

Question 2

When can leading qs be asked during xm or rexm?

Answer 2

Cannot be asked unless one of seven exceptions apply (s 37)
(1)the Court grants leave (s 192(2))
)2) relates to matter introductory to witnesses evidence
(3) no objection is made and all other parties are presented
(4) relates to matter nor in dispute
(5) expert witnesses, asking opinion on hypothetical facts
(6) civil proceeding in relation to investigation, inspection or report witness prepared in course of carrying out public or official duties
(7) unfavourable and s 38 applies

Note Court has broad powers to allow leading questions under ss 11 and 26

Question 3

What can you do in xm if your witness is being evasive?

Answer 3

Consider if attempts to refresh witness under s 32 ineffective or unavailable
S 38 allows leave to question witness as though cross-examining where evidence is “unfavourable”, or appears to court not making genuine attempt to give evidence or where given a prior inconsistent statement
Some disagreement about what unfavourable means (not favourable or adverse). Not favourable recently preferred by NSWCCA in Doyle v R
Court must consider s 192(2) and s 38(6) including when notice of intention to seek leave and matters witness will be questioned about by other party

Question 4

What is the effect of leave being granted under s 38?

Answer 4

Doc 5 applies as though cross examining including by asking leading questions and about prior inconsistent statements
S 38 does not permit general cross examination and qs must be limited to evidence establishing grounds of leave and facts relating to that/: r v Hogan
May permit questions solely about credibility but admissibility government by Pt 3.7: s 38(3)

Question 5

What does re xxm slow?

Answer 5

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

Question 6

When must the Court disallow a question in cross-examination?

Answer 6

If the court is of the opinion if it is:

• misleading or confusing
• unduly annoying, harassing, offensive, repetitive
• put in an inappropriate tone

Court must consider matters set out in s 41(2)
Not disallowable merely because challenges truthfulness or requires witness to discuss distasteful topic: (3)

Question 7

Are leading questions allowed in cross examination?

Answer 7

Generally permitted unless Court files or directs Witnesd not to answer: s 42

Court must consider factors in s 42(2), (3) (circs usually where witness effectively become their witness) and s 192(3)

Question 8

When can a witness be xxm on a prior inconsistent statement?

Answer 8

S 43 witness may be examined on prior inconsistent statement whether or not given particulars or shown it s 43
If witness concedes inconsistency s 43 provides no bar to addicting evidence (admissibility governed by pt 3). If does not, evidence of the prior inconsistent statement may not be affixed under xxmer provides with enough particulars to identify PS and draws witnesses attention to inconsistency s 43(2)

Purpose to ensure witness opportunity to consider what alleged to have said.

Not required to tender it may result in order forp or fiction if documents under s 45