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Cross Examination

The advice in the following article relates primarily to the Evidence Act (Commonwealth) and is a general explanation of the principles of cross-examination. It is not intended as instruction on how to carry out that process as that is beyond the scope of this article. If you are self-represented in a family law matter, then you will need to do your own research as the topic of cross-examination is one upon which weighty tomes are written. This article, merely gives an outline of the process so that you will have some idea as to what to expect. We suggest that you look at the Family Court Rules as well.

What is cross examination?

Simply put, cross examination is the questioning of a witness for the other side with a view to either getting that witness to say something that is favourable to your case, or to discredit the testimony of that witness.

What is the purpose of cross examination?

The aim of cross examination is to present the evidence in a new light. A word of caution should be sounded here, that being, if you don’t do it properly, then it can strengthen the other side’s case.

Cross examination as to the issue

This refers to the subject matter of cross examination, for example, whether a person did something, said something and so on.

Cross examination as to credit

This refers to the question as to whether the witness is believable or not.

The distinction between cross examination as to the issue and cross examination as to credit

The distinction between the two matters is sometimes very difficult to make. Put simply, the fact that a witness cannot be believed in respect to their evidence, does not necessarily automatically mean that the opposite is true.

Failure to cross examine

If you are challenging something a witness said and wish to cast doubt on that thing then if you failed to put it to your witness in cross examination that a contrary position was true, you will not be allowed to raise this position in your final summation. The bottom line is make sure that you suggest the contrary position to the witness who you are cross examining!

The subject matter of cross examination

The idea of cross examination is to listen very closely to what is said by the witness for the other side and to use that evidence to support your own case. It may well be, that a particular witness for the other side’s evidence is favourable to your own case and so there may well be no need to cross-examine. On the other hand, sometimes, these witnesses can be persuaded to bring out further evidence that is useful to your case. The situation, where the other side’s witness says something that is damaging to your case, is a situation where you definitely cross examine. There are two alternatives here. It may well be that the witness is mistaken, or alternatively, it may be that the witness is opposed to you. Telling which is the hard part. Here you have a choice between attacking the witness’ competence or attacking the witness themselves, that is, the witness’ credibility.

Competence
Lack of perception

This relates to the witness’ capacity to observe the situation to which they are giving evidence. It involves the five senses, that is, sight, hearing, touch, taste and smell. There is however, also, the question as to whether the witness was able to accurately perceive the situation in their circumstances, for example, whether it would have been possible, under the weather conditions prevailing at the time, to perceive the matter to which they are giving evidence. There is also the question as to the quality of their recall, that is, for example, whether time has dimmed their memory.

Credibility

Simply put, this means:

Is the person telling the truth or are they telling some distorted version of events that favours the other party?

There is a very tricky rule here. And that is that, answers on collateral matters must be taken as final in cross examination. That is, if there is an issue, raised in cross-examination that is peripheral to the issue that is not the main issue, then you have to take the witnesses’ answer as final, even if you are pretty sure they’re lying.

An example of this would be, in the case of Harris v Tippet (1811) 2 Camp 637, where a witness was asked in cross-examination whether he had attempted to dissuade one of the plaintiff’s witnesses from attending. He denied that allegation. It was held that the plaintiff could not recall the witness to cross examine them as to this point.

Obviously, determining whether something is collateral or not, can be very difficult at times. The case of the Attorney-General v Hitchcock (1847) 154 ER 38, tells us that if the matter is something about which you would be able to give evidence in its own right, then you are entitled to contradict the witness, that is, you are entitled to cross examine.

Now, just to complicate matters, there are four exceptions to the rule regarding cross examination on collateral matters. These are:

  1. Bias the fact that the witness is or may be biased in favour of the party calling them. Please note that this exception only applies to matters that are material to the cause, not merely collateral. In the case where this matter of bias relates to material issues, evidence is allowed to be called to support this assertion of bias.
  2. Fact that the witness may have been convicted of a crime.
  3. If the character of the witness or physical health is such that it makes it unlikely that that witness would tell the truth.
  4. The witness has made a previous inconsistent statement.

There are certain matters with which a cross-examiner should deal.

A. Competence

  1. Lack of perception, capacity or opportunity to recall
  2. Lack of accurate recall
  3. Lack of narrative ability

B. Credibility

  1. Bias, interest, prejudice
  2. Prior convictions
  3. Moral character, disposition or mental condition
  4. Prior inconsistent statement

Rules of Good Cross Examination

Know when to stop
Have a clear idea in mind about exactly what you need to elicit from each witness and when you get there – stop. Don’t be tempted to ask that one question too many!

Use ordinary plain language
You do not want to have to explain questions to witnesses. Remember that most are not experts in law, so just ask your questions simply so that the questions will be readily understood by the witness.

Ask only leading questions
You should guide the witness as to which answers you want. “You then shut the door, didn’t you?” is an example of this as opposed to asking, “And what happened then?”.

Ask only questions to which you know the answer
Do not be tempted to go on what is referred to as a “fishing expedition” or you may get more than you expected and the results may well be quite damaging to your case.

Listen very carefully to the witnesses answers
Listen to what is said in order to ascertain how far towards your final goal the witness’ evidence has taken you.

Don’t argue with the witness
Let the witness trap themselves. Once they have don’t question any further. Refer to the inconsistency with what they have said in cross examination in your summing up.

Do not allow a witness to repeat their evidence
Do not do this as this allows the court to hear the same evidence twice and may well have the unintended consequence of creating a false notion of credibility.

Never allow a witness to explain anything
This is especially true when the witness gives an answer that is useful to your case. If they give this sort of answer just stop your cross examination on that issue there in case they go on to explain things and destroy your advantage.

Avoid that one question too many
Once you’ve got what you want from a witness stop cross examination. If you keep going, you may elicit something favourable to your client’s case.

Save the ultimate point for your submission
If you have prepared properly, you’ll know what you want to elicit in cross examination before you start. Once you’ve got your results don’t embark on further cross examination. If you can find it (at your local or university law library) I recommend Professor Irving Younger’s The Ten Commandments of Cross Examination Video.


Rochelle Macredie is a Solicitor in NSW working with McKenzie Friends. She practices with the Sydney firm Oliveri Attorneys and can be contacted on 02 9550 0853, 0407 896 832 or by email at [email protected]