by John Stratton SC
Deputy Senior Public Defender
1 August 2007
Cross-examination is the art of asking simple questions in the right order.
For the criminal defence lawyer, there are few things more
important than cross-examination. In my experience, if a case is going
to be won, it is usually during the prosecution case. As Phil Boulten SC
once said, a case rarely looks better for the defence than the moment
that the Crown says 'That's the case for the Crown.'
Some advocates seem to regard the cross-examination as an end in
itself. My view is that approach is an error. It leads to the all too
common situation of seeing an advocate conducting an effective
cross-examination and then not making the most of it in the address or
closing submission. Cross-examination is about providing the ammunition
for a persuasive closing address or submission.
The art of cross-examination is something which can be learned.
There are very few natural cross-examiners. One of the very few people
who I can say is a natural cross-examiner is Winston Terracini SC. Few
of us are born with this gift, but fortunately, it is possible to learn
to become an effective cross-examiner.
In this paper I will attempt to give you some ideas about how to
become a more effective cross-examiner. I should stress at the outset
that these are my personal views. In some respects, they do not
represent the mainstream view about cross-examination.
I will give some suggestions about what approach to take in a
particular situation. I don't suggest that my approach is the only
correct approach. You may discover a better approach.
In an early draft of this paper, I attempted to diligently
include the masculine and feminine or every personal pronoun. The result
was that the paper was virtually unreadable. For that reason, although
obviously many witnesses and clients are women, I have only used the
The most important thing about being a good cross-examiner is preparation.
1. Learning Advocacy Skills
There are two ways of becoming a better cross-examiner: watching good advocates, and practice on your feet.
One way is watching someone else who is really good at it. When I
first started instructing barristers in the 1980s, I had three role
models. One was Kevin Coorey, now Judge Coorey DCJ, one was the late
John Terry, and one was Winston Terracini.
Each of them had a completely different style of
cross-examination. Kevin Coorey would for the most part charm a witness
into giving him the answers he needed. Winston Terracini would (and
does) blast a witness. John Terry used to clinically slice up a witness
piece by piece.
You can learn a lot about cross-examination by watching other
people who are good at it, but don't imagine that it is possible to
simply copy someone else's style. You need to develop your own style, a
style which suits your particular personality.
There are some patterns or templates of cross-examination which
have been developed over the years by advocates for particular
situations. If you were left to your own devices you might work out
through trial and error that this pattern of cross-examination works in a
particular situation. However, watching good advocates at work
certainly saves a lot of time, because you don't have to, as it were,
re-invent the wheel. In this paper I hope to show you some common useful
patterns of cross-examination.
Watching good cross-examiners is important, but there is no
substitute for getting onto your feet and cross-examining witnesses
yourself. That is the second way in which you can become a better
Try to eliminate the 'ums' and 'ahs' from your speech. They are
distracting for the tribunal of fact. If you have the chance, read your
own transcript whenever you can. Early in your career, it will be a
painful experience. It certainly was in my case. You may find, as I did,
that my questions tended to drift, because I had not fully thought out
the question before I opened my mouth.
In order to learn advocacy skills, you need to do a lot of each
of these things, watching other good advocates, and doing it yourself on
Legal Aid solicitors sometimes ask me, what is better
preparation for going to the bar, instructing barristers in trials, or
doing it yourself in the Local Court. My answer is generally, a fair bit
2. Preparation for the Cross-Examination
You can't properly cross-examine a witness unless you are very
familiar not only with that witness's statement, but also the entire
brief. This is particularly true in complex cases. In a complex case,
cross-examining a single witness, without knowing what is in the rest of
the brief, is a bit like trying to play a game of chess, when you only
know the position of one pawn; that is, it is an impossible task. If you
are familiar with the entire brief, then sometimes shifting a single
witness to a small degree can effect the complexion of the entire case.
Analysing the brief
The first step in preparing cross-examination is having a
thorough understanding of the prosecution brief. Because of the nature
of prosecution briefs, this will probably involve reading the brief at
least twice; the first time to understand what the case is all about,
the second time to understand the importance of individual pieces of
I recommend sitting down with the brief with a pen, a yellow
highlighter, and a pile of post-its. While you read the brief you might
want to jot down notes on two (possibly 3- see later) separate pieces of
On one piece of paper, write down the name of each witness and
the important evidence the witness gives, often quite cryptically (for
example, in an armed robbery case, 'ID witness at bank').
On another piece of paper, write down the dates and times when
important things happened, in other words, a chronology. Quite often,
the times won't add up, and from time to time, you might even find that
on the Crown case, unexpectedly, there is an alibi.
The third piece of paper on which you may want to make notes is
about things that need following up. For example, documents which need
to be subpoenaed, witnesses who need to be interviewed, and so on.
Having a conference with the client
There is a reason why this part of the paper about having a
conference with the client comes after reading the brief. I firmly
believe that there is no point in having a detailed conference with a
client about the facts of a case, unless you are on top of the brief. I
would go further. To have a conference with a client about the facts of a
case, without understanding the case against your client, is positively
counter-productive. At minimum, it will be a waste of your time, and a
waste of his time. At worst, it may result in undermining any confidence
your client has in you.
From time to time there will be clients who will insist on a
conference before you have the brief, or before you have the full brief.
There is nothing wrong with having a 'meet and greet' conference when
you are not on top of the brief. However, do not get into details of the
client's account of things in such a conference.
If possible, in a conference with a client, the following things
need to be discussed, if possible in this order. First, the nature of
the charge, and the essential elements of the offence(s), in a practical
way, should be explained. Second, the prosecution's case against the
client should be explained. Third, it should be explained to the client
that what he says in conference is 'on the record', in the sense that
you expect that what he tells you will be what he says in the witness
box. Only then should you cautiously move on to the accused's account of
I firmly believe that wherever possible, you should have a view
of the scene of the crime. I appreciate that particularly in the modern
homicide case, the brief contains photographs of nearly everything.
However, nothing replaces having the hands on experience of seeing how
the photographs fit together, seeing in reality distances and spaces,
and seeing what witnesses could really see from the positions in which
they say they made observations. Surprisingly often, witnesses say they
saw events, when they were in positions when they could not have seen
those events. I can't remember a case when I have not learned something
from a view, even if the only thing I learned was that I never wanted
the jury to see what I had seen.
Most cross-examination is cross-examination about prior
inconsistent statements. The greater the number of prior inconsistent
statements, the greater the scope for cross-examination. Therefore, I
believe wherever possible, have a committal where witnesses are required
to give evidence. Remember, if you don't require a witness for
cross-examination, and the witness is for various reasons unable to give
evidence at trial, the witness's statement may be admissible at trial:
s. 65 Evidence Act, s. 289 Criminal Procedure Act.
There seems to be a practice of allowing the prosecution to
tender the statement of the witness as the witness's evidence in chief. I
think this practice is unfortunate. If a witness is giving a dishonest
or unreliable account of events, the mere fact of having to repeat a
narrative of what happened is likely to produce inconsistencies. I don't
suggest requiring police and expert witnesses to give their evidence in
chief orally because that is a waste of time.
In almost every case, in my opinion it is useful to issue a
subpoena to the Commissioner of Police before a trial. Again, one of the
main reasons for issuing the subpoena is to create the potential for
prior inconsistent statements.
How much should I prepare a cross-examination?
There are differing views about the degree to which
cross-examination should be planned. When I started working as an
advocate, the preferred view was to literally and metaphorically start
with a blank sheet. A line would be drawn down the middle of the page.
The cross-examiner would write down the evidence in chief on the left
hand side of the page, and on the right would write down questions to
ask in cross-examination. Frequently the cross-examiner would seem to
have very little in front of him which looked like a note or plan of
I have never been able to understand this approach. Usually in
criminal cases, at the very least you have a statement of the witness in
the witness box, and indeed all the other statements of the witnesses
in the case. Most of the time (I know, not always), the witness is
likely to give evidence in very similar terms to that in the statement.
There is another problem with cross-examining 'on the run', as
it were. It is hard enough to take down what a witness is saying in the
witness box, let alone having to formulate a cross-examination as you
Sometimes preparation can go too far. Sometimes you see
advocates cross-examining on a witness' statement, not realising that
the witness has departed from it. There is also an old and possibly
apocryphal story about an advocate who used to meticulously plan his
cross-examination on pieces of paper which he would pin to the bar
table. He prepared hundreds of questions, and wherever possible, had a
train of questions regardless of the answer given. However, when he got
the answer he was not expecting for the first question, he had nothing
prepared, and so he had to sit down.
I am a bit obsessive about cross-examination. However, I believe
it is far better to be over-prepared for cross-examination than
under-prepared. I always make a list (in very short form) of what I want
to ask the witness, with page references to what the witness has said
elsewhere about the topic. There is no point in having a vague idea that
a witness has said something in evidence which is different to a prior
statement, unless you are able to quickly take the witness to that prior
Identifying the issues
Before preparing a cross-examination, it is worthwhile thinking
about and perhaps even writing down the pieces of evidence which make up
the Crown case against your client. In the typical case, there will
probably be only 4 or 5 of them. Thus in the typical armed robbery case,
the pieces of evidence relied on might be a piece of eye-witness
identification, and evidence of finding clothing similar to that used by
the robber in the accused's home.
In thinking about cross-examining a witness, you should be
thinking about what evidence you can get from each witness which will
weaken any of the parts of the Crown case, or strengthen the defence
What do I want from this witness?
Before you decide what to ask a witness, it is necessary to
decide if you want to cross-examine the witness at all. You should only
cross-examine a witness who you believe will give you an answer which
will either weaken the Crown case, or strengthen your case.
It is sometimes said that a cross-examiner should only ask a
question if he already knows the answer the witness will give. If we all
rigorously applied that rule, there would be very little
cross-examination at all. It is very rare that you know with
mathematical certainty how a witness in cross-examination will reply to a
question. What you need to be is prepared to respond to a wrong answer.
Most of the time this means you need to be ready to immediately take
the witness to a prior statement which contains the answer that you
Later in this paper I will talk about cross-examining particular types of witnesses.
The importance of transcript and notes
Most of the time, when you are a criminal defence advocate, you
do not have the benefit of a daily transcript. I suspect that in the not
too distant future, criminal lawyers of that time will scratch their
heads and wonder how people in our time managed without a transcript.
If you can get your hands on a daily transcript, do so.
Especially in a long trial, try to read it every night, highlighting the
important evidence as you go. It doesn't take a long time to read a
day's transcript, but if at the end of a long trial you have not kept up
with the transcript, it is a nightmare.
If you can't get a daily transcript making good notes of the
evidence in chief is essential. I don't favour writing pads for making
notes in. I like a big fat spiral bound foolscap size notebook, which
you are less likely to lose and you can keep as a permanent record.
As I have said, I don't like the 'blank sheet' approach to
cross-examination, the 'rule a line down the page' approach. When the
witness is giving evidence in chief, I try to write down as much of the
witness' evidence as I can, taking up pretty much the whole width of the
page. If I have time, I try to underline the critical parts of the
witness's evidence. For example, in the typical armed robbery case, the
part of the evidence that you want to underline is the description of
the robber. If I have any more time, I try to write a one or two word
prompt for a question in the margin and circle it, usually something
like 'When?', 'How many?' and 'Describe?'
If you have your list of points for cross-examination beside
you, if you can, cross out the areas where the witness has already given
the answers you want in evidence in chief. In many cases, this may well
mean that most of your prepared cross-examination can't be used. That,
of course, is a good thing. If a Crown witness has already given the
answers you want in evidence in chief, why would you want to go back and
give the witness an opportunity to give a different answer?
At some stage in the cross-examination you should go back and
check the scribbled cryptic questions on your notes of the evidence in
chief and check that you have covered them. I usually tick them off as I
An exhibits list
I think it is always important to have a list of exhibits on a
separate piece of paper, perhaps as the last page as your exercise book,
so you won't lose it. In any court case, let alone a complex trial, it
is very easy to lose a stray piece of paper. On the sheet of paper,
record both the exhibits and the 'MFIs' or documents marked for
identification. It is extremely helpful to have an accurate list of
exhibits because you can ask that a document be shown to a witness
without the witness being told what the document is.
3. The Rules about cross-examination
General thoughts about cross-examination
The purpose of cross-examination is to extract from a Crown
witness, evidence which will weaken the Crown case, or evidence which
will strengthen the defence case. I hope I am not misquoting Gleeson CJ
when he memorably criticised cross-examiners who seemed to believe that
they were members of the 'Junior League of Truth Seekers.' If the answer
to the question you are thinking about asking will not weaken the Crown
case, or strengthen the defence case, don't ask it.
If a witness who is in a position to hurt your case has not done
so at the end of the evidence in chief, then the first question you
have to ask is, why should I ask any questions at all?
Defence lawyers, all of us, are greedy. In our heart of hearts,
we would like to be able to show that not only has the Crown not proved
its case, but that the accused is positively innocent. If a witness who
potentially could identify your client as being at the scene of the
crime has not done so, resist the urge to ask that fatal question, ' You
never saw this man at the scene of the crime'. There have been some
famous instances when the witness has replied, 'Come to think of it, I
think he was there.'
Can I give you this tip? If you are ever tempted to ask a
question which begins, 'One thing you certainly never saw was..' , don't
ask it. You would not be formulating a question that way unless you
were unconsciously aware that it was risky.
These are some general thoughts about cross-examination. I
acknowledge they owe something to Irving Younger's 'Ten Commandment's of
Cross-Examination'. Irving Younger's 'Ten Commandments of
I am not going to attempt to give you the New Testament version
of Irving Younger's Ten Commandments. However this would be my take on
the general rules to think about when cross-examining.
Preparation is the key
I believe that the most important thing in cross-examination is
preparation. As I said earlier, it is essential that you be very
familiar with the prior statements of the particular witness, but also
the Crown brief in its entirety, when you commence cross-examining.
Know the rules of evidence
You need to know the rules of evidence backwards. Especially,
you need to know the rules about prior inconsistent statements and about
Don't repeat the evidence in chief
Cross-examination should not be repetition of the matters in the
evidence in chief. Inexperienced advocates tend to start at the first
paragraph of the witness's statement and proceed from there, regardless
of the content. Getting the witness to in effect repeat the evidence in
chief will only give more weight to the witness's evidence.
Cross-examination should be probing the weaknesses in the witness'
account, not the strengths.
Ask simple questions
Good cross-examination is asking short questions in the right
order. Don't begin your questions with personal observations (such as 'I
well understand that you were feeling very stressed at the time....').
Don't put multiple propositions in the one question. If you do, you give
your opponent the opportunity to object, or to later suggest that the
witness' answer was ambiguous. If the question you are putting to a
witness involves multiple propositions, split them up. Use simple, pared
If you use complicated language, you give the witness, and your
opponent, the opportunity to suggest that the witness gave an answer
apparently helpful to the defence because he misunderstood the question.
As a fan of trashy detective novels, I used to think that the
ideal sentence in a trashy, film noir detective novel was 'I lit another
cigarette'. Your ideal question in cross-examination should generally
be of the same length. I guess the equivalent would be 'Was the robber
smoking a cigarette?'
Ask leading questions
As a cross-examiner, you are entitled to ask question in a
leading way, that is, questions which suggest the expected answer.
Leading questions are disallowed in examination in chief because they
suggest the answer. Don't give up that advantage easily.
When I am cross-examining, I try to think of each question as a
tool designed to extract a particular piece of information, and no more.
You might think of it as a locksmith using a specialised tool to open a
Be very careful, especially when cross-examining police, about
asking why they did or did not do something (for example, why they never
gave the accused the opportunity to sign a notebook entry of a
conversation). In most cases, you are better of establishing the
desirability of something, the fact that it did not happen, and leaving
it at that.
Very often it is possible to ask a series of questions, the
answer to all of which you know is yes, culminating in critical
question, the answer to which you need for your case to be yes. Get the
witness used to answering 'yes' to your questions.
Ask questions in a forthright but non-aggressive manner
The manner in which you ask questions is very important. The
most important thing to understand is that it is essential that the
tribunal of fact (the judge, the magistrate or the jury) hears you.
Unless you are Ethel Merman, you will not be heard if you ask questions
at the sound level you usually use in a normal conversation. I find that
if I speak in a slightly lower tone than I do conversationally my voice
When you are cross-examining, stand up straight. Avoid stooping over your papers.
There are counsel who shout at every witness. There are counsel
who mumble at every witness. Attempt to fall into neither category. Too
much aggression will make the tribunal of fact (particularly a jury)
sympathetic with the witness. A mumbling, hesitant style will be seen as
unconvincing. The happy medium is to be forthright, without being
Judge Coorey used to put it this way 'You can get more flies
with honey than vinegar'. I am not sure that is scientifically true, but
we know what he means.
Most witnesses who you will cross-examine in your career will be
attempting to tell the truth. However there will be a significant group
of witnesses who you will have to cross-examine in your career who on
your instructions are lying, and who appears to be clearly lying. With
these witnesses, put it to them in a forthright way that they are lying.
Listen to the answer
Sometimes it is easy to miss the fact that a witness has given
you exactly the answer you need because you are too busy thinking about
the next question.
Make sure you have listened to the answer, because otherwise you
might find you are asking questions which undermine a helpful answer
you have already got.
Don't argue with the witness
There are witnesses who, when it is pointed out that there is an
inconsistency between their current evidence and that given on an
earlier occasion, will simply refuse to admit that there is an
There are witnesses who, when it is pointed out to them that
their evidence is a practicable impossibility, will refuse to admit that
they are mistaken. A good example is the witness who refuses to admit
that he could not have seen what he claims to have seen from the
position he says he was in.
Point out the inconsistency between the prior version and the
current version. Point out the inconsistency between the witness'
version and the objective evidence. However if the witness makes an
absurd attempt to reconcile the difference between the current and a
prior version of what happened, or if the account doesn't make sense,
leave it at that. Don't give the witness the opportunity to make up an
explanation for the inconsistency in, or the unlikelihood of, his
In submissions, or address, you will have plenty of chances to
rave on about the absurdity of the answers of prosecution witnesses. You
don't need to do it in cross-examination, and to do so exposes you to
the risk that the witness might come up with an explanation.
Don't go back for your hat
I have suggested to you that with each witness you should have
worked out in advance what are the ideal answers you want from any
If you have got the answers you want, sit down. I think Irving
Younger said 'If you have struck oil, stop drilling.' My colleague Glenn
Whitehead puts it this way: 'Don't go back for your hat.'
3. Court Craft
I want to suggest to you that there are some basic skills or
rules in court, and understanding of which will make you a better
cross-examiner. I call these rules 'court craft'.
I think of these rules in the same way as in John Le Carre's
excellent spy novels, he has the characters talk about 'tradecraft'.
Tradecraft in the John Le Carre novels was a set of rules to protect
spies, such as having a set of agreed signals such as a chalk mark if a
spy thought he was being followed. The most rigorous of these rules were
called 'Moscow rules' for a spy in the most dangerous situation.
At the risk of stretching an analogy too far, when you
cross-examine a prosecution witness you are in enemy territory. Most of
the time, when you are cross-examining, the witness will be hoping, if
possible, to damage your case.
An important aspect of 'court craft' is ensuring that the
evidence gets onto the transcript. In nearly every case it is important
to make sure that a witness's answers in cross-examination are properly
recorded in the transcript. Whether the case be a summary case in the
Local Court, a committal, a trial, or a sentence proceeding, there is a
very good chance that some other tribunal of fact or law will need to
know what exactly was being said in your case.
You may think some of the things I am about to talk about are
too obvious and basic to bear talking about. Can I assure that I have
barely been in a joint trial where I have not seen serious
transgressions of what I am going to suggest to you are the essential
'Moscow rules' of cross-examination.
You need to be constantly conscious of the fact that for the
most part, proceedings are recorded on sound, not on video. If the
witness does not say it, it will not appear in the transcript.
Most obviously, a nod or a shake of the head will not be
recorded on the transcript. If a witness answers with a nod or a shake
of the head, ask the witness to answer with a 'yes' or 'no'.
Just as importantly, avoid the 'Mm, mm' answer. Imagine a case
where an important issue is whether the robber (said to be the accused)
had red hair. If asked whether the robber had red hair, a witness might
well answer 'um, um', meaning yes, or 'um um' meaning no. In either case
the transcript will read:
That answer, as recorded, will never be of any use to anyone.
By its very nature, cross-examination often involves asking
questions in the negative. You need to be conscious of not allowing
ambiguous answers on the transcript. For example, suppose you case is
that the accused never stabbed Mr Smith. Be vigilant of avoiding
producing this sort of transcript from an eyewitness:
This transcript might be read as the witness either agreeing or
disagreeing with the proposition. If there is any doubt, I think it is
better to put a negative proposition to a witness this way.
Third, a witness is asked to show how long an object is, and
demonstrates by indicating with his or her hands. Unless there is an
agreement placed on the record about the dimension indicated, this
evidence, on a transcript, is completely meaningless.
There is a practice of going up to a witness in the witness box
(with permission) to get a witness to indicate a position on a plan or
photograph. I have major reservations about this practice. What tends to
happen is that the advocate (examiner or cross-examiner) asks questions
at a volume which is natural for someone standing next to the witness,
but which is likely to be inaudible to anyone else in the court room.
The witness is then invited to identify positions on a photograph or
plan which the judge or jury cannot see. The jury is completely excluded
from what is effectively a private conversation between counsel and the
My view is, do it at a distance, so the judge and jury can see
what is being identified as the position and they do not have to rely on
your word for it.
This paper is about cross-examination, not how to deal with the
Crown's examination in chief. However, when the Crown wants to curl up
with the witness in the witness box, and you are invited to join in, my
view is, don't go up. You can't make notes standing next to the witness
box. More importantly, you are not getting the jury's perspective of
what is happening. If the judge invites you to join the Crown in the
witness box, for the most part I would simply respond 'Thank you, your
Honour, I am happy to stay here.'
There are a number of small points of courtesy which you can
show to the court, which will cost you little or nothing, but will win
you (at least with most judges) credit. Once an object has become an
exhibit, it is in the property of the court. So when you are asking a
witness to mark something which is already an exhibit, seek leave of the
court first. You will almost invariably get it, and the simple fact of
seeking leave will win you points. All you need to say is 'With your
Honour's leave', glance at the judge, ' Mr Smith are you able to mark
your position on that exhibit?'
4. Cross-examination on prior inconsistent statements
Most cross-examination when you think about it is
cross-examination of witnesses based on prior inconsistent statements,
usually documents. I think it is absolutely fundamental to effective
cross-examination that the advocate understands how to cross-examine on
documents. However there are quite a few advocates out there who appear
not to understand the fundamentals of cross-examining on a prior
Establishing an inconsistency
The first thing you need to do before cross-examining on a prior
inconsistent statement is to establish an inconsistency. This may seem
obvious but some lawyers do not appear to understand this point. Suppose
it is helpful for the defence case that the robber had red hair
(presumably because the accused does not have red hair). In a prior
statement to police, the witness has described the robber as having red
hair, but does not mention this in evidence in chief.
All else being equal, you are not entitled to ask the witness
'Didn't you tell the police that the robber had red hair' without any
preliminaries, because at that stage, the witness has not said anything
Overcoming this problem could not be simpler. You just need to
ask the preliminary question: 'Did the robber have red hair?' If the
answer is yes, then you don't need to go to the prior statement, because
you have got what you want: the witness has agreed that the robber had
If the witness does not agree that the robber had red hair, then
you have established an inconsistency. You are then entitled to ask
about the prior inconsistent statement: 'Didn't you tell the police that
the robber had red hair?'
The witness gives evidence of things not in his statement
Caution is needed where the witness says something significant
which is not included in his statement to police. Suppose, for example,
that in an assault case, a witness said in evidence in chief he saw the
accused kicking the victim in the head. However there is no mention of
this in the witness' statement to police.
If you go straight to the fact that the witness did not mention
anything about a kicking in his first statement to police, you are
inviting one of two possible comebacks (these at least are the common
ones I have seen, there may be others). The first is 'Well, the police
never asked me if I saw any kicking'. The second is 'Well, I was so
upset, and in shock, I must have forgotten about the kicking.'
There is a way of pre-empting this sort of response. It involves
two of principles of cross-examination: cross-examination being asking
simple questions in the right order, and 'closing the gates'.
Before you take the witness to his statement, you should ask a
series of questions to close off the possible 'outs' for the witness.
You will not need to ask all these questions in every case; much depends
on the significance of the new assertion by the witness. You should ask
these questions or something like them:
Like many of the 'templates' for cross-examination in this
paper, I can't claim that I invented it. In fact, I still remember the
conversation I had with my colleague Peter Pearsall in the 1980s when he
told me how to do it. He and I are no doubt just links in a long chain
of lawyers who have been copying each other for generations.
Where the assertion missing from the statement is part of a
particular sequence of events, it is usually sufficient to take the
witness to that part of his statement, and point out that the assertion
(in my example, 'the accused kicked Mr Smith') is not there.
Sometimes the assertion is one which cannot be so narrowly
pinned down to a particular part of the statement. For example, in a
murder trial, it might be an allegation that the witness had often seen
the accused assault the deceased. If the witness claims that he did tell
the police about it, my approach is to put the statement in the
witness' hand, and ask the witness to read the statement to himself, and
to tell me when he reaches the part where he told the police that he
saw the accused assault the police.
A word of caution. Don't try this unless you are absolutely sure
that the allegation does not appear in the witness' statement. If the
witness is able to say, 'Well, actually I did say it here in paragraph
12', to say the least you have lost ground and been made to look foolish
in front of the tribunal of fact.
Where the witness disputes the inconsistent statement
If the witness denies making the prior inconsistent statement,
you are entitled to prove the prior inconsistent statement. The
admissibility of the prior inconsistent statement is determined by s.
43(2) of the Evidence Act, which states:
An assertion by the witness that he doesn't remember, when in a
prior statement he clearly did remember, is still a prior inconsistent
statement: Houston and Stanhope (1982) 8 A Crim R 392 at 397, Regina v Rees  NSWCCA 23 at .
Usually, in the case of a signed statement by a witness, you can
prove a prior inconsistent statement by putting the statement in the
witness's hand and asking the witness to agree that the prior
inconsistent statement appears in the statement.
Things are a bit more complicated if the prior inconsistent
statement has not been signed by the witness, for example, a transcript
of a record of interview, or a transcript of proceedings (for example,
the committal). Almost invariably, the Crown will concede that you are
correctly reading from the transcript. This is the way I do it:
The reason I ask the Crown to concede that I have correctly read
from the transcript, rather than concede that that was what the witness
said, is to avoid the cheap comment 'Well, that's what it says in the
transcript, but who knows what the witness actually said.'
If the Crown is not prepared to concede that you have correctly
read from the transcript of the committal, you can prove this by
tendering that part of the committal depositions, which are presumed to
be accurate: s. 287 Criminal Procedure Act.
If the Crown is not prepared to concede that you have correctly
put to a witness what is in the transcript of the witness' ERISP, you
can lead that evidence from the police officer who interviewed the
witness, or play the relevant part of the ERISP if necessary.
5. Cross-examining particular types of witnesses
What I have said so far has mainly been general considerations which apply to every witness.
There are particular types of witnesses where there are special
considerations. I want to suggest to you in this part of the paper some
approaches for cross-examination. In many cases the suggestions which I
will be making are simply the working out in practice of the sort of
considerations which I have just been talking about.
6. Civilian witnesses in a non-identification case
Many cases are cases where the identification of the accused is
not an issue, and the real issue is who did what to whom. The classic
example would be an assault/wounding/murder case of a domestic nature.
If ever there was a case where a witness is likely to stray from
his statement it is this sort of case. If it appears that the witness
is going to exaggerate, encourage the witness to do so. This is the sort
of case where before you take the witness to inconsistencies between
the current version and the statement, you should ask questions to
establish that the witness told the truth and the whole truth in the
With this sort of witness, more than any other type of witness,
the cross-examination should focus on the detail of what the witness
claims to have seen or heard.
Be very conscious of the relative positions of the witness and
the people being observed. Very often eyewitnesses will swear that they
could see things which they clearly could not.
You also need to be conscious of what other witnesses who have
not yet been called will say about the very same event. It may be
worthwhile putting to the witness things seen by other witnesses in
order to set up inconsistencies in the Crown case.
In a case where there is a sequence of events, it may be helpful
to divide the action up into a number of parts so you can make sure
that you cover everything.
7. Give ups
Very often the Crown relies on the evidence of give-ups,
including prison informers. A difficulty from the defence point of view
is that these witnesses start out as friends or relatives of the
accused. It is very important to be able to point to a reason for these
witnesses to lie.
For this group of witnesses, it is very important to issue
subpoenas. At the very least the witness' prison file and his Justice
Health file should be subpoenaed. These very often produce gold,
especially the Justice Health file, which can provide a wealth of
information about the witness's psychiatric condition (if the witness
has one). In the witness's prison file, frequently there is material
suggesting that the witness is manipulating his status as an informer in
order to better his imprisonment conditions.
You should also attempt to obtain (usually from the Crown) the
remarks on sentence and the transcript of proceedings of any matters for
which the witness obtained a discount for his assistance. If possible,
seek any reports tendered on sentence, especially any psychological or
psychiatric reports. If there has been any appeal from the sentence,
make sure you have the judgment of the Court of Criminal Appeal (if
there is one) or the notice of appeal.
With these documents, you should attempt to create a narrative
from the witness in cross-examination, along these lines. Firstly, what
happened when the accused was arrested:
You almost certainly will not get a 'yes' to all of these
questions, but that doesn't matter. You can move on to what happened in
the witness's sentence proceedings, based on the transcript and the
remarks of sentence. Depending on what happened, the cross-examination
may go along these lines:
I had better tell you that many judges don't like the 'sticking
to the script' phrase. You might replace it with 'stick to your
If the witness denies knowing what was said in court, read him
the relevant parts of the transcript or remarks on sentence and seek a
concession from the Crown that you have accurately read from those
The worst situation you can have is when a witness rolls over
and becomes a Crown witness, but then rolls back and say his statement
is all lies. The jury will be instantly suspicious that what the witness
told the police was the truth. I think the best approach is to attack
the witness as if he was still on the Crown side. If any of you have
tips about dealing with this sort of witness, I would be interested in
8. Civilians in an identification case
My view is that generally if there is no dispute about the fact
that the crime was committed, and the only real issue is the identity of
the offenders, it is counter-productive to spend much, if any, time
about what happened during the commission of the offence. Detailed
cross-examination about the commission of the offence, unless it is
directly relevant to the issue of identification, will lead the jury to
conclude that the accused does not really know what his defence is.
In my view in a case where the only real issue is
identification, cross-examination should be limited to areas, which
might cast doubt upon the accuracy of the witness' identification of
your client. Examples might include discrepancies between the witness'
description of other offenders (not in a joint trial!) or the weapons
used in the commission of the offence.
The first part is the cross-examination about the circumstances
of the initial observation. It corresponds with the sort of matters
referred to in Domican (1992) 173 CLR 555. The sort of matters, that you might want to ask about (say in an armed robbery case) are:
The second part is the initial description given by the witness
to the police. At this stage (unless the description of the robber
uncannily matches that of your client) you are trying to emphasise that
this first description was likely to be more accurate than the later
identification. The first description is extremely important because
usually it is given before the witness is shown photographs of the
defendant. Again, this is a classic example of the importance of closing
the gates before you get to the crucial questions. The sort of
questions you might want to ask are:
The one type of answer you should be trying to defuse in advance
is 'Well the police never asked me if he had a beard', in a case (for
example) where your client has a beard in the arrest photo but there is
no mention of a beard in the initial description. If you have already
established that the witness was trying to give the best, most complete
description that he could, you have an immediate comeback:
The third part is the identification process. There are a number
of different approaches, which can be taken, not all of which will be
appropriate to the particular case.
In preparing for cross-examination in an identification case it
is important to try to get access to documents about the act of
identification. At least, make sure that you have access to the words of
identification used, which should be recorded in the official police
notebook of the police officer who takes the identification statement.
In many cases, the act of identification is now video taped. It is
always worthwhile to try to get access to the identification video,
because frequently it shows hesitancy in identification that does not
come up in the witness’ statement.
One approach to cross-examination is, the issue of what the
witness’s expectation was when he went to the identification process:
You will be surprised at the number of times you will get a
positive response to these questions, which is indicative of some of the
problems of identification evidence.
The next strand that can be taken is how the photo of the
accused was selected. You need to go back to the original description of
the robber, and compare it with the photo of the accused, which the
witness selected. There is always some artificiality about this, in that
often the way we recognise faces cannot be easily described in words.
You might ask:
Another strand on this topic is to attempt to show that the
photo spread was unfair. You are trying to show that from the point of
view of the identifying witness, many of the photos in the photo spread
were automatically disqualified. You might ask:
Finally, if there are any differences between the initial
description and the photo of the accused selected, the witness should be
asked about those differences.
The fourth part of the cross-examination is to attempt to sum up
any favourable answers you have already received and attempt to extract
a concession that the witness could be mistaken. Try to make it seem to
the witness that unless he agrees with you he is being unreasonable.
You could ask something like this:
If the witness won’t concede the possibility, I think the best
tack is not to argue with them, but to try to make the witness seem
unreasonable. For example:
9. Police witnesses in an identification case
The other side of the coin is cross-examining the police officer who conducted the identification process.
It is very important to get access to the exact words used by
the civilian identification witness when the photo of your client was
selected. If at all possible, try to get a look at the police notebook
where the words should be recorded, or the video of the identification
You can also get from the police witness support for the idea of a ‘fair spread’. You could ask questions like these:
10. Police officers generally
There is probably the most scope for preparation in
cross-examining police witness because for the most part you can be
confident that their evidence will be in identical terms to their
Where a police officer’s evidence is in contention, it is
important to subpoena the police officer’s notebook. Normally the first
place a police officer will record anywhere what he has seen and heard.
Look out for differences between the officer’s notebook entries and the
If you are going to ask a police officer any questions about
your client’s good character (always a risky business), make sure you
run the questions you are planning on asking past the officer before you
ask them in front of the jury. If the officer is not prepared to give
you unequivocal answers about the accused’s character you are better off
letting it go. You should also ask the prosecutor if there is any
material which the prosecution would lead if good character is raised.
Police officers normally know pretty well what is in their
statements. Where they get in trouble tends to be things which are not
in their statements.
There are some differences between different classes of police
officers. Crime scene unit officers (who used to be known as physical
evidence officers) almost always seem to me to be keen to give very
honest evidence. Crime scene officers normally make and keep
comprehensive notes of their examination of the crime scene. These are
usually worth looking at.
11. Expert witnesses
Preparation for cross-examination of an expert.
At the outset it is important to recognise that there are some
limitations to cross-examining expert witnesses. There are some areas
you are never going to be able to get helpful answers from an expert.
For example, although I have seen good cross-examination about how long a
fingerprint could have been at a particular location, I have never seen
good cross-examination intended to suggest that two fingerprints
asserted to be identical, are not in fact identical.
Preparation is very important in a case where there are expert
witnesses. You are never going to learn as much about an expert’s field
of expertise as the expert you are preparing to cross-examine. However,
in my experience the areas you end up cross-examining on usually end up
being quite narrow areas, and it is possible to end up knowing a lot
about a narrow area. At least you can give the impression of knowing as
much about the area as the expert. In particular, make sure you
understand the meanings of any technical terms that are likely to come
up. Also make sure that you can pronounce any terms that you are likely
to use in cross-examination (such as petechial haemorrhages).
It is helpful to build up a little library of books covering
areas which often come up in cross-examination. A useful start is the
book by Vernon Plueckhahn and Stephen Cordner, Ethics, Legal Medicine and Forensic Pathology.
In a case where there is contentious expert evidence, it is
always helpful to retain an independent expert. Even if you don’t intend
calling the expert, having a report from your own expert can be
invaluable in suggesting lines of cross-examination.
Where possible, subpoena the expert’s working notes. This is
particularly important with DNA experts and treating doctors.
Wherever possible, have a conference with the Crown’s experts.
Experts usually pride themselves on being impartial. I have rarely had a
Crown expert witness refuse to have a conference with me. You should
usually take advantage of this, unless the witness’s evidence is not
contentious, or you are planning to call the expert a liar or
Cross-examination of an expert
In Makita v Sprowles (2001) 52 NSWLR 705 at Para  Heydon JA (as he then was said):
85 In short, if evidence tendered as expert opinion evidence is
to be admissible, it must be agreed or demonstrated that there is a
field of “specialised knowledge”; there must be an identified aspect of
that field in which the witness demonstrates that by reason of specified
training, study or experience, the witness has become an expert; the
opinion proffered must be “wholly or substantially based on the
witness’s expert knowledge”; so far as the opinion is based on facts
“observed” by the expert, they must be identified and admissibly proved
by the expert, and so far as the opinion is based on “assumed” or
“accepted” facts, they must be identified and proved in some other way;
it must be established that the facts on which the opinion is based form
a proper foundation for it; and the opinion of an expert requires
demonstration or examination of the scientific or other intellectual
basis of the conclusions reached: that is, the expert’s evidence must
explain how the field of “specialised knowledge” in which the witness is
expert by reason of “training, study or experience”, and on which the
opinion is “wholly or substantially based”, applies to the facts assumed
or observed so as to produce the opinion propounded. If all these
matters are not made explicit, it is not possible to be sure whether the
opinion is based wholly or substantially on the expert’s specialised
knowledge. If the court cannot be sure of that, the evidence is strictly
speaking not admissible, and, so far as it is admissible, of diminished
weight. And an attempt to make the basis of the opinion explicit may
reveal that it is not based on specialised expert knowledge, but, to use
Gleeson CJ’s characterisation of the evidence in HG v R (1999) 197 CLR
414, on “a combination of speculation, inference, personal and
second-hand views as to the credibility of the complainant, and a
process of reasoning which went well beyond the field of expertise” (at
To summarise, before an expert opinion is admissible, the party seeking to tender the evidence must establish that:
· there is a field of specialized knowledge
· the witness has become an expert in (an identified aspect of)
that field of specialized knowledge by reason of specified training,
study or experience
· the opinion proffered is based wholly or substantially on the witness's expert knowledge
· the facts upon which the opinion is based must be identified and proved
· there is a demonstrable scientific basis to show how the
specialized knowledge applies to the facts to produce the opinion
These are the areas that you should consider attacking when
cross-examining a witness. Only cross-examine on the areas where you
think there may be a weakness. Cross-examination of an expert should
never be a repetition of the evidence in chief, which simply reinforces
the effect of the expert’s evidence in chief and gives the expert an
opportunity to better explain his opinion.
Generally you will be cross-examining experts from a recognised
field of specialized knowledge, although that in not always the case, as
in the case of ‘facial mapping’ and ‘body mapping’: see Regina v Tang
 NSWCCA 167.
Often cross-examination about an expert’s qualifications is
completely counter-productive. However, you need to be conscious of the
issue of whether the expert is giving evidence outside his area of
expertise, because some experts (especially doctors) seem to think they
are qualified to express an opinion on anything.
Frequently, a fertile field of cross-examination is the material
made available to the expert at the time he formed his opinion. If that
material was less extensive than the material available at trial, you
may be able to suggest that the expert did not have all the material
available to reach an expert opinion. This is particularly useful when
Don’t let an expert get away with simply proffering an opinion
without showing how he got there. Ensure that the expert’s process of
reasoning is exposed.
Frequently, what you are seeking in the cross-examination of an
expert is the concession that another explanation is a possibility. For
that witness, the concession that there is another possible explanation
is your $64, 000 question. Honest experts like to think of themselves as
scientists and are often open to the suggestion that another
explanation, although improbable, is possible. Even if you know what the
answer is going to be, leave the $64, 000 question until last. If you
get the answer you want, sit down. And don’t go back for your hat.
John Stratton SC
Deputy Senior Public Defender
1 August 2007