Last updated 20 July 2016

The police prosecutor calls all witnesses the police wish to rely upon one after the other. No witnesses (other than the defendant) are allowed to hear any evidence in the case that comes before their evidence. They must wait in a separate witness room and also must not discuss any of the earlier evidence with anyone present.

The witness will sit in the witness box, take the oath (i.e. swear on a religious text such as the Bible) or make an affirmation to tell the truth. The witness will then proceed to give their version of the events in response to questions from the prosecutor (examination-in-chief). Defendants, especially those who are not legally represented, should take careful notes of the evidence given by the prosecution witnesses in order to question them later during cross-examination. If a witness is going too quickly to allow notes to be taken, the defendant may politely but firmly interrupt and ask the magistrate to ensure that the witness slows down.

Neither the prosecution nor the defence is permitted to ask their own witnesses leading questions. Leading questions are ones that suggest or lead the person questioned towards the answer sought by the questioner. An example of a leading question is:

Q:  Was it then that he threatened to bash your mother?

A:   Yes.

The question is objectionable because it leads the evidence being sought—the evidence is suggested to the witness that there was a threat to assault someone rather than the witness giving their own evidence of that threat.

The same information could be put before a court in a non-objectionable (i.e. non-leading) manner by asking the following series of short questions:

Q:  Did he say anything then?

A:   Yes.

Q:  What did he say?

A:   He said he would bash my mother.

To obtain evidence from a witness through the use of non-leading questions, the questioner needs to have a good knowledge of what the witness is likely to say in answer to their questions. This information can be obtained from reading any statements provided to police or if possible, drafting a statement of proof after a pre-trial interview to be signed by the witness. The witness should then be questioned, according to these statements in a manner designed to elicit the facts the court should know.

Cross-examination

When the prosecutor has finished questioning the witness, the defence may be entitled to ask the witness questions in cross-examination. It is permissible to ask leading questions during cross-examination. There is a rule of law that obliges a defendant who is giving or calling evidence of a fact to put that fact to any police or Crown witness who might be in a position to comment on it. Otherwise, a trier of fact (the magistrate or judge) may be entitled to infer that the defendant’s evidence was made up in the witness box, and it will be of less weight. Therefore, this issue can be addressed by suggesting to a witness the crucial parts of the defendant’s version of events.

Cross-examination should generally highlight positive prosecution evidence, weaken adverse prosecution evidence, elicit new advantageous evidence and highlight or bring into question the reliability or credibility (honesty) of a witness whose account is disputed. It is said that questions should only be asked in cross-examination when the answer is known, but this is only a rule of thumb. It would be worthwhile to consider the defence that is being run, note down what points are relevant to the defence regarding each witness before the hearing and generally keep to those points.

A common mistake of persons who represent themselves is to ask questions in the form of a lengthy statement that becomes difficult to respond to. Short questions that elicit a definite response are preferred.

Re-examination

When the defendant has finished cross-examining the witness, the prosecutor may re-examine the witness. The aim of re-examination is to enable the prosecutor to clarify any unclear aspects of the witness’s testimony. The prosecution is not entitled to introduce new evidence, such as matters not discussed either in examination-in-chief or cross-examination.

No case to answer

When the prosecution case has closed, the defendant may submit to the magistrate that they have no case to answer. This is where the defendant argues that the magistrate should dismiss the charge on the basis that the prosecution has not supplied sufficient evidence in law to support the charge. The test to be applied is ‘… whether on the evidence as it stands [the defendant] could lawfully be convicted’ (May v O’Sullivan (1955) 92 CLR 654 at 658). This is a question of law.

The magistrate will hear the submission and the prosecutor’s reply. If a court accepts the submission, then the case is dismissed and the defendant is discharged from any existing obligation to appear in court in answer to that charge. If the no case to answer submission is rejected by a court, then the defence has the opportunity to present its case.