Cross examination

Cross examination is primarily restrained by section 41 of the Evidence Act. The application of this section was most clearly demonstrated in Libke v R [2007] HCA 30, where the crown prosecutor had questioned the defendant in a manner that Kirby and Callinan JJ described as being punctuated with “sarcastic and repeated commentary“.

It is self evident that cross examination is a fundamental part of the trial process. It is the method by which an advocate can test the evidence of the witness, elicit evidence helpful to the advocate’s case, and demonstrate why the witness is not reliable or credible.

The limits of cross examination are addressed in section 41 of the Evidence Act. The section was considered in Libke v R [2007] HCA 30, where the crown prosecutor had questioned the defendant in a manner that Kirby and Callinan JJ described as being punctuated with “sarcastic and repeated commentary“.

As Spigleman CJ observed in R v TA [2003] NSWCCA 191, judges "play an important role in protecting complainants from unnecessary, inappropriate and irrelevant questioning by or on behalf of an accused".

TA

R v TA [2003] NSWCCA 191

“In any event, in my opinion, his Honour was entitled to reject the line of cross-examination by applying s41 of the Evidence Act. The difficulties encountered by complainants in sexual assault cases in the criminal justice system has been a focus of concern for several decades. Judges play an important role in protecting complainants from unnecessary, inappropriate and irrelevant questioning by or on behalf of an accused.”