When a witness is called to give evidence in a criminal hearing or trial, the process begins with examination-in-chief, followed—where appropriate—by cross-examination. These procedures are governed by the Uniform Evidence Act, which outlines the rules and structure of how witness testimony is to be presented in court.
- Part 2.1 Divisions 1-2 of the Act address the competence, compellability, and general rules surrounding the giving of evidence.
- Part 2.1 Division 3 provides detailed guidance on examination-in-chief, cross-examination, and re-examination.
Examination-in-Chief
The purpose of examination-in-chief is to allow the party who called the witness to present their evidence to the court in a fair, complete, and unbiased manner. In criminal proceedings, this is typically conducted by the prosecution, unless the defence is calling its own witness.
During examination-in-chief:
- Leading questions are generally not permitted.
- Lawyers must ask open-ended questions, encouraging the witness to provide their own account.
- For example, a lawyer cannot ask, “You saw the man wearing a red hat, didn’t you?” Instead, the question must be framed as: “What was the man wearing?”
This ensures the integrity of the evidence and guards against suggestion or manipulation.
Cross-Examination
Once examination-in-chief is complete, the opposing party has the opportunity to cross-examine the witness. In criminal matters, this is typically conducted by the defence lawyer.
The primary purpose of cross-examination is to challenge the evidence and test its reliability. For example, this can be done by:
- Highlighting inconsistencies;
- Demonstrating unreliability;
- Presenting an alternative version of events; or
- Undermining the credibility of the witness.
Unlike examination-in-chief, leading questions are permitted and frequently used. These questions often take the form of propositions, such as:
“You didn’t see the man asleep on the bed, did you?”
Re-Examination
Re-examination provides the party who originally called the witness an opportunity to clarify any new matters raised during cross-examination. This stage is limited in scope—only issues directly arising from the cross-examination can be addressed.
Summary of the Process
In a typical criminal trial/hearing, the order of witness examination unfolds as follows:
- The prosecution calls a witness.
- Examination-in-chief is conducted by the prosecution.
- Cross-examination is conducted by the defence.
- Re-examination (if necessary) is conducted by the prosecution.
The Importance of Cross-Examination
Cross-examination often plays a critical role in the defence of a criminal charge. It is a key mechanism by which the accused may challenge the prosecution’s case. A skilled legal representative can significantly influence the outcome of the matter by exposing flaws or inconsistencies in the evidence. For this reason, it is essential that defendants have competent legal representation to guide them through the complexities of the trial process.
Should you or someone you know be charged with an offence, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney, NSW (02 9696 1361), Canberra (02 5104 9640), Perth (08 6255 6909) or Northern NSW (02 5552 1902) to make an appointment to speak to one of our lawyers.
