Cross examination

Cross-examination is a fundamental aspect of the legal system in Australia. It is the examination of an opponent’s witness in order to confront and undermine the opponent’s case by exposing deficiencies in the witness’ evidence. Clause 2(2) of Part 2 of the Dictionary of the Evidence Act 1995 (NSW) defines cross examination as “a reference to the questioning of a witness by a party other than the party who called the witness to give evidence.

Unlike in evidence-in-chief, a legal practitioner when cross-examining a witness may ask “leading questions”, which are questions that prompt or encourage an answer sought by the examiner. It applies pressure to the witness and tests their reasoning and the quality of their evidence.

The primary rule relating to cross-examination is that enunciated in the case Browne v Dunne [1894] 6R 67(HL). This rules states that a cross-examiner cannot rely on evidence that is contrary to the evidence given by that witness without first putting the contradicting evidence to that witness in order for them to attempt to justify the contradiction. This rule is essentially one of fairness and prevents a party from putting evidence forward without first affording opposing witnesses the opportunity to respond to it.