- Home
- Litigation
- Sydney Uni 06
- 2. Adducing Evidence – Witnesses
2. Adducing Evidence – Witnesses
- By Student at Law
- Published 1/07/2007
- Sydney Uni 06
- Unrated
Improper questions s41
(1) The court may disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the question is: (a) Misleading; or (b)Unduly annoying, harassing, repetitive, intimidating, offensive or oppressive.
(2) Without limiting the matters that the court is to take into account for the purposes of (1), the court is to consider:
(a) any relevant condition or characteristic of the witness including age, personality and education; and (b)any mental, intellectual or physical disability to which the witness is or appears to be subject.
- Leading Questions
• Definition: A leading question is one which directly or indirectly suggests a particular answer to the question OR one which assumes the existence of a fact, the existence of which is in dispute and the witness has not yet given evidence on that.
Picker v The Queen
GPI Leisure Corp Ltd v Herdman Investments (1990)
• Held: A question asked by counsel in chief is objectionable as leading when it suggests the answer, not when it merely directs the attention of the witness to the subject in respect of which he is questioned.
NMFM Property and Others v Citibank Ltd (1999)
Leading questions (Cross-examination) s42
(1) A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it.
(2) Without limiting the matters that the court may take into account in deciding whether to disallow the question or give such a direction, it is to take into account the extent to which: (a) evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness; and (b) the witness has an interest consistent with an interest of the cross-examiner; and (c)the witness is sympathetic to the party conducting the cross examination either generally or about a particular matter; and (d) the witness’s age or any mental intellectual or physical disability, to which the witness is subject, may affect the witness’s answers.
(3) The court is to disallow the question, or direct the witness not to answer it, if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used.
(4) This section does not limit the court’s power to control leading questions.
• Section 27 of the Evidence Act preserves the right to question a witness called by the other party to a case.
(b) Cross Examination on Documents
• Where the witness has written a prior inconsistent statement a cross-examiner can use a document to cross-examine that witness
- Prior Inconsistent Statements
1. 'prior inconsistent statement': a previous representation that is inconsistent with evidence given by the witness;
2. 'previous representation': is a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.
TEST: At common law the test of prior inconsistent statement is whether the statement is capable of being regarded as inconsistent with evidence given by the same witness. There is no requirement in section 43 that the prior statement be relative to the subject matter of the proceedings.
• To be admissible the evidence of the prior inconsistent statement must be relevant (s56) presumably, it will always be relevant because it relates to the credibility of the witness (s55(2)(a)).
• Once admitted, it may be used as evidence of what was asserted in it (s60) as well as to discredit the witness. Where the statement is relevant only to the witness's credibility, the credibility rule (s102) must be satisfied. It, among other things, prevents evidence of the statement being adduced otherwise than from the witness unless (s106) 'the witness has denied the substance of the evidence'.
style="font-weight: bold;">Prior inconsistent statements of witnesses s43(1) The court may disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the question is: (a) Misleading; or (b)Unduly annoying, harassing, repetitive, intimidating, offensive or oppressive.
(2) Without limiting the matters that the court is to take into account for the purposes of (1), the court is to consider:
(a) any relevant condition or characteristic of the witness including age, personality and education; and (b)any mental, intellectual or physical disability to which the witness is or appears to be subject.
- Leading Questions
• Definition: A leading question is one which directly or indirectly suggests a particular answer to the question OR one which assumes the existence of a fact, the existence of which is in dispute and the witness has not yet given evidence on that.
Picker v The Queen
GPI Leisure Corp Ltd v Herdman Investments (1990)
• Held: A question asked by counsel in chief is objectionable as leading when it suggests the answer, not when it merely directs the attention of the witness to the subject in respect of which he is questioned.
NMFM Property and Others v Citibank Ltd (1999)
Leading questions (Cross-examination) s42
(1) A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it.
(2) Without limiting the matters that the court may take into account in deciding whether to disallow the question or give such a direction, it is to take into account the extent to which: (a) evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness; and (b) the witness has an interest consistent with an interest of the cross-examiner; and (c)the witness is sympathetic to the party conducting the cross examination either generally or about a particular matter; and (d) the witness’s age or any mental intellectual or physical disability, to which the witness is subject, may affect the witness’s answers.
(3) The court is to disallow the question, or direct the witness not to answer it, if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used.
(4) This section does not limit the court’s power to control leading questions.
• Section 27 of the Evidence Act preserves the right to question a witness called by the other party to a case.
(b) Cross Examination on Documents
• Where the witness has written a prior inconsistent statement a cross-examiner can use a document to cross-examine that witness
- Prior Inconsistent Statements
1. 'prior inconsistent statement': a previous representation that is inconsistent with evidence given by the witness;
2. 'previous representation': is a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.
TEST: At common law the test of prior inconsistent statement is whether the statement is capable of being regarded as inconsistent with evidence given by the same witness. There is no requirement in section 43 that the prior statement be relative to the subject matter of the proceedings.
• To be admissible the evidence of the prior inconsistent statement must be relevant (s56) presumably, it will always be relevant because it relates to the credibility of the witness (s55(2)(a)).
• Once admitted, it may be used as evidence of what was asserted in it (s60) as well as to discredit the witness. Where the statement is relevant only to the witness's credibility, the credibility rule (s102) must be satisfied. It, among other things, prevents evidence of the statement being adduced otherwise than from the witness unless (s106) 'the witness has denied the substance of the evidence'.
(1) A witness may be cross examined about a prior inconsistent statement alleged to have been made by the witness, whether or not: (a) complete particulars of the statement have been given to the witness; or (b) a document containing a record of the statement has been shown to the witness.
(2) If, in cross examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross examiner is not to adduce evidence of the statement otherwise than from the witness, unless the cross examiner: (a) informed the witness of the circumstances of the making of the statement to enable the witness to identify the statement; and (b) drew the witness’ attention to so much of the statement as is inconsistent with the witness’ evidence.
(3) for the purpose of adducing evidence of the statement, a party may re-open the party’s case.
- Previous Representations of Other Persons
• This section allows a witness to be cross-examined on representations made by a person other than the witness in certain circumstances. These circumstances are exceptions to the general rule that previous representations may not be used to contradict evidence of a witness.
Previous representations of other persons s44
(1) Except as provided by this section, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness.
(2) A cross-examiner may question a witness about the representation and its contents if:
(a) evidence of the representation has been admitted; or
(b) the court is satisfied that it will be admitted.
(3) If subsection (2) does not apply and the representation is contained in a document, the document may only be used to question a witness as follows: (Cannot be produced to jury but jury will know it is contradictory).
(a) the document must be produced to the witness;
(b) if the document is a tape recording, or any other kind of document horn which sounds are reproduced-the witness must be provided with the means (for example, headphones) to listen to the contents of the document without other persons present at the cross- examination hearing those contents;
(c) the witness must be asked whether, having examined (or heard) the contents of the document the witness stands by the evidence that he or she has given;
(d) neither the cross-examiner nor the witness is to identify the document or disclose any of its contents.
(4) A document that is so used may be marked for identification.
- Production of Documents
• As a general principle, using a document does not require that it be tendered in evidence.
• s45 deals with the production and use of documents which have been the basis of cross examination under either s43 or 44 however it doesn't deal with other possible bases on which tender might be required (or on which the court might admit the document under s45(3)(c)).
Production of documents s45
(1) This section applies if a party is cross-examining or has cross-examined a witness about:
(a) a prior inconsistent statement alleged to have been made by the witness that is recorded in a document; or
(b) a previous representation alleged to have been made by another person that is recorded in a document.
(2) If the court so orders or if another party so requires, the party must produce:
(a) the document; or
(b) such evidence of the contents of the document as is available to the party;
to the court or to that other party. (i.e. other counsel.)
(3) The court may:
(a) examine a document or evidence that has been so produced; and
(b) give directions as to its use; and
(c) admit it even if it has not been tendered by a party. (used in civil matters only in exceptional circumstances).
(4) Subsection (3) does not permit the court to admit a document or evidence that is not admissible because of Chapter 3.
(5) The mere production of a document to a witness who is being cross-examined does not give rise to a requirement that the cross-examiner tender the document.
Continued on page 6