Please note: Articles on this website were originally published by CourtKeys.com in 2015 and may now be out of date. Revised and updated content is included in Civil Litigation for Non-Lawyers [available here]. Disclaimer

Other witnesses can of course be involved in addition to plaintiffs and defendants. Sometimes plaintiffs and defendants have very little useful evidence to give, so they have to rely on other witnesses to make their case for them. Anyone with knowledge of facts that are relevant to the issues is a potential witness. Expert witnesses can also be necessary if their specialist knowledge could help to prove facts.

Witnesses ordinarily give their evidence in a particular sequence:

1. They enter the witness box and are sworn in.

2. They give their evidence in chief.

3. They are cross-examined.

4. They are re-examined.

5. They stand down from the witness box.

Sometimes witnesses are ‘recalled’ to give additional evidence after they have stood down from the witness box. That can happen if some other relevant matter emerges later on in the trial that the witness did not give evidence about the first time.

Subpart 4 of part 3 of the Evidence Act 2006 sets out various rules for examining witnesses. They are not dealt with in any particular detail or even at all here. A general outline of practical matters to do with examining witnesses.

Getting sworn in

“Getting sworn in” is when a court staff member approaches a witness when that witness first enters the witness box, and asks that witness to make an oath that he or she will tell the truth. To lie to a court under oath is perjury, and perjury is a crime.

Giving your own evidence when representing yourself

If you are representing yourself and giving evidence in support of your position then all you need to do is go to the witness box, get sworn in and tell everyone who you are and what your evidence is. That is called “evidence in chief”.

Evidence in chief

‘Evidence in chief’ or ‘examination in chief’ is when a witness first gives evidence for the party that has called that witness to court. That evidence is the reason the witness has been called in the first place. So, for example, when a witness is called by a plaintiff, goes into the witness box and is questioned by the plaintiff for the first time, that witness is giving his or her evidence in chief.

For evidence in chief given in a full District Court or High Court trial, rules 9.12 of the District Court Rules 2014 and also the High Court Rules provide:

(1) A brief signed by a witness –

(a) must, subject to the terms of an oral evidence direction made under rule 9.10, be read by the witness at the trial as the witness’s evidence-in-chief; and

(b) is, when read by the witness at the trial, the evidence-in-chief given by the witness at the trial; and

(c) must, after being read by the witness at the trial, be endorsed by or on behalf of the Registrar with the words “Given in evidence on [date]”.

(2) Any portion of the brief that is the subject of an oral evidence direction under rule 9.10 becomes part of the evidence-in-chief of the witness only if and when it is given orally.

Leading and non-leading questions

A ‘leading question’ is “a question that directly or indirectly suggests a particular answer to the question” per section 4 of the Evidence Act 2006.

Section 89 of the Evidence Act 2006 does not allow leading questions to be put to witnesses in examination in chief or re-examination unless:

(a) the question relates to introductory or undisputed matters; or

(b) the question is put with the consent of all other parties; or

(c) the Judge, in exercise of the Judge’s discretion, allows the question.

Leading questions are allowed in cross-examination though, so see those parts of this text dealing with cross-examination below for examples.

Leading questions tend to be ‘closed’, requiring only a ‘yes’ or a ‘no’ answer. Non-leading questions, on the other hand, are typically ‘open ended’ so the witnesses give their evidence in their own words.

The challenge with non-leading questions can be to get witnesses to give all the evidence they need to. This is unlikely to cause difficulty where briefs of evidence have been made and all a witness needs to do is read his or her brief. In that scenario, any omissions should have been identified and addressed in the course of preparing the briefs. Sometimes new evidence becomes relevant as a trial goes on though, and in that case you may need to introduce further evidence that was not contemplated when preparing witness briefs. Knowing the difference between leading and non-leading questions becomes important in that circumstance, and the distinction is relevant to re-examination as well.

Because non-leading questions are open ended, they tend to ask ‘who’, ‘what’, ‘where’, ‘when’ and ‘how’, and where appropriate ‘could you please explain’, ‘could you describe’ and ‘could you show the court’. For example:

1. Where were you in the evening on 25 November 2013?

A: I went to my friend’s house. We watched the rugby.

2. What happened that evening?

A: The Blues won.

3. Did anything else happen?

A: I saw a car crash on the way to my friend’s house.

4. Were you with anyone when you saw the car crash?

A: No. It was just me.

5. Where were you when you saw the car crash?

A: In my car.

6. Where did the car crash happen?

A: On Queen Street in Albany.

7. Where is Albany?

A: North Shore. Auckland.

8. Can you be more specific about where it was on Queen Street that you saw the car crash?

A: It hit a lamp post about 2 or 3 metres from a mailbox for 56 Queen Street.

9. Can you describe how the car crash happened?

A: It hit a lamp post like I said.

10. Did you see why the car hit the lamp post?

A: No. It just swerved suddenly. There was nothing there. One minute it was just driving along the road normally. Next minute, lamp post.

11. […]

Cross-examination

The main difference between examination in chief and cross-examining a witness is that you are allowed to ask ‘leading questions’ in cross-examination.

There is an important duty to ‘put your case’ to witnesses on cross-examination. That is to say that, if a witness for another party gives evidence that goes against your case, then you should question the witness about that in cross-examination.

Section 92 of the Evidence Act 2006 provides:

(1) In any proceeding, a party must cross-examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters.

(2) If a party fails to comply with this section, the Judge may –

(a) grant permission for the witness to be recalled and questioned about the contradictory evidence; or

(b) admit the contradictory evidence on the basis that the weight to be given to it may be affected by the fact that the witness, who may have been able to explain the contradiction, was not questioned about the evidence; or

(c) exclude the contradictory evidence; or

(d) make any other order that the Judge considers just.

An example of leading cross-examination questions in a case where it is important to establish a witness was in Tauranga in June 2012, but where she denies being in Tauranga at that time:

1. I am going to ask you about times when you said you were away from Tauranga.

2. You said you were away from Tauranga during June and July 2012 didn’t you?

3. You had a credit card with ABC Bank between 2008 and 2014 didn’t you?

4. That was credit card number 1234-5678-9101-1121 wasn’t it?

5. Please refer to page 100 of the common bundle of documents that you have with you there in the witness box.

6. On page 100 is a statement for a credit card with ABC Bank isn’t it?

7. It has your name in the top left hand corner doesn’t it?

8. It has your address below your name doesn’t it?

9. It is a statement for the credit card you had with ABC Bank isn’t it?

10. Now please refer to page 80 of the common bundle of documents.

11. On page 80 is the contract for your credit card with ABC Bank isn’t it?

12. You are referred to as the “cardholder” of the credit card in the contract aren’t you?

13. Nobody else is named in the credit card contract as a “cardholder” are they?

14. You signed above your name at the end of the credit card contract, at page 85 of the common bundle, didn’t you?

15. So you agreed to the terms of the credit card contract didn’t you?

16. At clause 8.12 of the credit card contract, at page 83 of the common bundle, you agreed not to let anybody else use your credit card didn’t you?

17. And you never did actually let anybody else use your credit card did you?

18. Could you use your credit card to buy things over the internet?

19. You have never used your credit card to buy things from service stations over the internet though have you?

20. And you have never bought things from cafes or hair salons over the internet have you?

21. When you bought things with your credit card from service stations or cafes or hair salons, you were actually there in the station or cafe or salon making the purchase weren’t you?

22. Now please turn to page 121 of the common bundle.

23. At page 121 is another statement for your credit card account isn’t it?

24. That statement is for transactions made using the credit card for the month of June 2012 isn’t it?

25. That statement records a payments made to “YIP SERVICE STATION TAURANGA” on 5, 17 and 26 June 2012 doesn’t it?

26. That is your local service station isn’t it?

27. That is the service station you normally go to, isn’t it?

28. You made those three payments at the service station didn’t you?

29. The statement records a payment to “JUDYS HAIR AND NAILS TAURANGA” on 8 June 2012 doesn’t it?

30. That is the beauty salon you normally go to, isn’t it?

31. You go to that salon about every three weeks don’t you?

32. The statement records a payment to that same salon about three weeks earlier, on 17 May 2012, doesn’t it?

33. You made that payment to the salon on 8 June 2012 didn’t you?

34. The statement records payments to “BROWN ST COFFEE TAURANGA” on 3, 4, 9, 17, 20, 21, 22 and 28 June 2012 doesn’t it?

35. That is the café you normally go to isn’t it?

36. You have made a payment of $3.70 to that café most days of the week for a whole year before June 2012, haven’t you?

37. All those payments in June 2012 are for that same $3.70 amount, aren’t they

38. You were in Tauranga in June 2012 were you?

Re-examination

Re-examination can sometimes be more about clarifying evidence given in cross-examination than anything else. Section 97 of the Evidence Act 2006 provides:

(1) On re-examination, a witness –

(a) may be questioned about matters arising out of evidence given by the witness in cross-examination, including any qualification in cross-examination of evidence given by the witness in examination in chief; but

(b) may not be questioned about any other matter, except with the permission of the Judge.

(2) If permission is given by the Judge under subsection (1), the Judge –

(a) must allow other parties to cross-examine the witness on the additional evidence given; and

(b) may allow further re-examination on matters arising out of that cross-examination.

Keep in mind that leading questions are not permitted in the course of re-examination just as for examination in chief. See those parts of this text dealing with leading and non-leading questions above for more information and examples of non-leading questions.

Note: This content was originally published by CourtKeys.com in 2015. Disclaimer

Witnesses on trial