A party is not to cross-examine a witness who has been called in error by another party and has not been questioned by that other party about a matter relevant to a question to be determined in the proceeding.
(1) The court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a disallowable question):(a) is misleading or confusing, or(b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, or(c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate, or(d) has 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).(2) Without limiting the matters the court may take into account for the purposes of subsection (1), it is to take into account:(a) any relevant condition or characteristic of the witness of which the court is, or is made, aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality, and(b) any mental, intellectual or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject, and(c) the context in which the question is put, including:(i) the nature of the proceeding, and(ii) in a criminal proceeding—the nature of the offence to which the proceeding relates, and(iii) the relationship (if any) between the witness and any other party to the proceeding.(3) A question is not a disallowable question merely because:(a) the question challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness, or(b) the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness.(4) A party may object to a question put to a witness on the ground that it is a disallowable question.(5) However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question.(6) A failure by the court to disallow a question under this section, or to inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question.Note. A person must not, without the express permission of a court, print or publish any question that the court has disallowed under this section—see section 195.
(1) A party may put a leading question to a witness in cross-examination unless the court disallows the question or directs the witness not to answer it.(2) Without limiting the matters that the court may take into account in deciding whether to disallow the question or give such a direction, it is to take into account the extent to which:(a) evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness, and(b) the witness has an interest consistent with an interest of the cross-examiner, and(c) the witness is sympathetic to the party conducting the cross-examination, either generally or about a particular matter, and(d) the witness’s age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness’s answers.(3) The court is to disallow the question, or direct the witness not to answer it, if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used.(4) This section does not limit the court’s power to control leading questions.Note. Leading question is defined in the Dictionary.
43 Prior inconsistent statements of witnesses
(1) A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness whether or not:(a) complete particulars of the statement have been given to the witness, or(b) a document containing a record of the statement has been shown to the witness.(2) If, in cross-examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner:(a) informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement, and(b) drew the witness’s attention to so much of the statement as is inconsistent with the witness’s evidence.(3) For the purpose of adducing evidence of the statement, a party may re-open the party’s case.
44 Previous representations of other persons
(1) Except as provided by this section, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness.(2) A cross-examiner may question a witness about the representation and its contents if:(a) evidence of the representation has been admitted, or(b) the court is satisfied that it will be admitted.(3) If subsection (2) does not apply and the representation is contained in a document, the document may only be used to question a witness as follows:(a) the document must be produced to the witness,(b) if the document is a tape recording, or any other kind of document from which sounds are reproduced—the witness must be provided with the means (for example, headphones) to listen to the contents of the document without other persons present at the cross-examination hearing those contents,(c) the witness must be asked whether, having examined (or heard) the contents of the document, the witness stands by the evidence that he or she has given,(d) neither the cross-examiner nor the witness is to identify the document or disclose any of its contents.(4) A document that is so used may be marked for identification.
(1) This section applies if a party is cross-examining or has cross-examined a witness about:(a) a prior inconsistent statement alleged to have been made by the witness that is recorded in a document, or(b) a previous representation alleged to have been made by another person that is recorded in a document.(2) If the court so orders or if another party so requires, the party must produce:(a) the document, or(b) such evidence of the contents of the document as is available to the party,to the court or to that other party.(3) The court may:(a) examine a document or evidence that has been so produced, and(b) give directions as to its use, and(c) admit it even if it has not been tendered by a party.(4) Subsection (3) does not permit the court to admit a document or evidence that is not admissible because of Chapter 3.(5) The mere production of a document to a witness who is being cross-examined does not give rise to a requirement that the cross-examiner tender the document.
(1) The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and:(a) it contradicts evidence about the matter given by the witness in examination in chief, or(b) the witness could have given evidence about the matter in examination in chief.(2) A reference in this section to a matter raised by evidence adduced by another party includes a reference to an inference drawn from, or that the party intends to draw from, that evidence.