Leading questions (answered "yes" or "no") are not allowed

The court prefers evidence in the witness' own words

To introduce the witness to the general topic

(Were you driving on the Bruce Hwy on the night of January 25?)

To test propositions from previous evidence

(Mrs Williams said that you are prejudiced against gay people, is that true?) Mooney v James [1949] VLR 22

A hostile witness is one who has previously indicated that they would give certain evidence, but who then deliberately withholds that evidence in an apparent effort to defeat the course of justice

This is different to a witness who has simply not given the evidence it was hoped they would give.

Having successfully applied to the judge to treat a witness as hostile, the lawyer who called the witness can refer to their previous statements and, if necessary, cross examine the witness regarding those statements.

Evidence Act 1977 (Qld) ss 17-19

This is the only situation in which a lawyer can cross examine their own witness

The other side will then also have the opportunity to cross examine the same witness

To show that harmful evidence has low probative value

Questions intended to "torture" a witness by placing them under duress are not allowed

Improper questions (misleading, confusing, annoying, harassing, intimidating, offensive or repetitive) are not allowed

It appears to us contrary to all rules of evidence and opposed to natural justice, that the evidence of one party should be received as evidence against another party, without the latter having an opportunity of testing its truthfulness by cross-examination

Lopes LJ in Allen v Bell (1894) P. 248 (CA)

If you intend, during your summing up, to contradict testimony given by a witness, you must put "your version" of the evidence to them in cross examination

1. This gives the witness a chance to defend their evidence
2. It gives the opposing side the opportunity to provide additional corroroboration
3. It gives the witness a chance, if necessary, to add clarification or context to their answer
   Outlined in Allied Pastoral Holdings v FCT 91983] 1 NSWLR 1
   Authority is Browne v Dunn (1864) 6 R 67

Permits the side calling a witness to ask them further questions to clarify evidence which they have given in cross-examination Prince v Samo (1838) 112 ER 606

Particularly important when cross examining counsel raises issues which were never discussed during examination in chief

Re-examination is not a free for all. Generally speaking, re-examination is limited to matters discussed in cross.

It would not be fair for new matters to be raised in re-examination, because there is no second round of cross-examination

While the court has over-riding capacity to rule questions to be out of order, in reality it will usually be necessary for opposing counsel to raise an objection

By failing to object to a question at the time it is asked, opposing counsel is impliedly accepting that the question may be asked, or, is in order.

During examination in chief a witness is examined by counsel calling them, to tell the court what they know

Provide people the opportunity to tell a story, on their own terms.

During examination in chief, ideal process is to use an open question to get the witness started, followed by a series of further open questions to keep them going.

• What did you do on the night of 31 October
• What happened after you got to the nightclub?
• Once the two men started shouting, what happened next?
• When you followed the bouncer, what did you see?

Do not allow the witness to tell their story, but they may validly be used in order to allow the witness to clarify some aspect of their evidence, before the next open question

In this situation, the lawyer is effectively the one telling the story; the witness is merely agreeing or disagreeing with the story the lawyer tells

Often, although perhaps unfairly, the lawyer will treat 'no' as though it means 'yes'. This is a good time to object

You went there that night to start a fight didnt you?

No, I did not!

And when you got there, you decided the accused was going to be the target of your attack, isnt that right?

NO! It wasnt like that!

Probing questions seek more detail in relation to a previous answer

Probing questions may be open or closed depending on circumstances

This is a great form of question when a witness is being evasive

• What happened when you went to the place?

• We sat on the couch and spent time together

  
  

• When you say "spent time together", what were you actually doing?

• First we watched a DVD, then we kissed

  
  

• Did you have sex?

Statements disguised as a question, usually no sensible answer can be given

The officer used his taser and I fell to the ground. There was no need for him to do that.

Witness, you confronted the police with a knife, what would you expect them to do!

Posit a pretend circumstance and ask for the witness' reaction to that circumstance

Not inherently unacceptable, but should be used with caution. Not suitable for asking about the actual events at hand.

How did the child react?

He was clearly hurt, but didn't cry - it was strange

How would you expect most children to have reacted?

His ankle was badly twisted, Id expect most children to have been screaming

Asking for ever more detail

So..just before the collision, what gear were you in? What were your engine revs?

Post hoc ergo propter hoc

You had an argument with your girlfriend, and twenty minutes later her car was damaged!

Reversing onus of proof

The burglar alarm sounded and you were seen running down the street. If you didn't break into the house, who do you think did??