The Role of the Court in the Examination of Witnesses in NSW
Among the forms of evidence available to legal practitioners to build their case is the testimony of witnesses regarding material facts of the case. Both the prosecution and the defense are permitted to call forth witnesses of their choosing for examination of the evidence presented, and to cross-examine the witnesses called by the other, after which a re-examination may take place if necessary. TimeBase's Information Resource Centre provides more information about the broader trial process, but this article will more specifically address the process of examination and cross-examination of witnesses and particularly, the powers and responsibilities bestowed upon the court during the process by the applicable NSW legislation.
The examination and cross-examination of witnesses in NSW is governed by Divisions 3-5 of Part 2.1 of the Evidence Act 1995 (NSW) (EA). The first section within these divisions, s 26, asserts the absolute control of the Court over the way in which the witnesses are questioned; an important rule to establish to enable the enforcement of rules to follow. The remainder of Division 3 addresses general rules concerning the giving of evidence by witnesses, including the order in which examination, cross-examination and re-examination are to take place, procedures relating to witnesses who cannot answer questions due to language barriers or disability, and attempts to revive the memory of a witness.
Divisions 4 and 5 respectively address the specific procedures of examination and cross-examination, and it is here that the Court's role is particularly emphasised in light of the authority granted to it in s 26. Section 41(1) places an obligation on the Court to disallow a question put to a witness in cross-examination if the question can be said to be:
(a) misleading or confusing, or
(b) unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, or
(c) put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate, or
(d) with no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability).
Irrelevant or Repetitive Questioning
One example of where the authority of the Court must be exercised in this area is in the case of irrelevant or repetitive questioning during cross-examination. Much of s 41(1) is seemingly concerned with protecting the witness from undue harassment by the questioning Barrister. However, the mention of 'repetitive' in s 41(1)(b) recalls a further obligation on the Court's part to what is known in NSW as the Overriding Purpose of litigation, as set out in s 56 of the Civil Procedure Act 2005 (NSW). Section 56(1) states: 'The overriding purpose of this Act and of rules of Court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings'. Subsection (2) then requires the Court to give effect to this overriding purpose when it exercises any power granted to it by the Civil Procedure Act 2005 (NSW) or by rules of court, which would by implication include the previously discussed sections of the EA.
Thus, it is incumbent on the Court to exercise the authority granted to it by s 26 of the EA in such a way as to ensure that a witness is not subjected to an interminable sequence of marginally-relevant questions concerning largely inconsequential minutiae, only to produce evidence which, under s 56 of the EA, would be classified as inadmissable in any case for reasons of irrelevance. This is due to the waste of the Court's time and consequent hindrance to the due administration of justice that will result from such unprofitable proceedings. This is only one example of the power granted to the Court and the responsibility by which it must be exercised during the process of examining witnesses in the NSW trial process.
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Evidence Act 1995 (NSW) as reproduced on TimeBase LawOne
Civil Procedure Act 2005 (NSW) as reproduced on TimeBase LawOne