It is important to understand the way in which a criminal trial and a civil trial works as evidence is relevant at different stages of each process.

Course of the trial Edit

Criminal Trials

  1. Opening addresses: both parties give an opening address.
  2. Evidence: the prosecutor always gives evidence which is followed by the defendant who may choose not to give evidence.
  3. Summing up
  4. Charge given to jury

Civil Claims

  1. Plaintiff gives opening address and calls witnesses. (They will also give summary here if the defendant chooses not to call witnesses)
  2. Defendant calls witnesses and summarises their case. (Defendant will instead issue a reply if they choose not to call witnesses).
  3. Reply made by plaintiff.

Evidence can be obtained before the trial in a few limited circumstances but is generally given during the trial.

Criminal trials Certain obligations are placed upon the prosecution.

  • It is for the prosecution to determine which witnesses they wish to call and a trial judge can call witnesses only in very rare occasions.
  • They must communicate to the defence the witnesses which they are planning to call
  • If the prosecution has a witness who will give evidence which does not support their case but helps the defence case they should still call them unless there is a good reason not to
  • Where the indictment mentions a witness who will not be asked to give evidence in the trial, this witness should be available if the defence wishes to call them instead
  • If prosecution has not made available material to the court and this results in a miscarriage of justice then the verdict of the court cannot remain

In all trials evidence will normally be given in spoken form by witnesses who are present in the court.


  • Witnesses will not normally be present in the courtroom until it is their turn to give evidence.
  • Refreshing memory of witness beforehand is permissible
  • Witnesses give evidence in 3 stages

Step One: Examination in chief: Edit

  • Testimony about material facts is given.
  • Only non-leading questions are allowed.
  • The memory of a witness can be refreshed in some circumstances. When the witness is giving their evidence to the court they can refer to a document where the document was either created by them or its accuracy was checked by them at the time it was made. The document must refer to a subject that they know about. It needs to have been created reasonably soon after the event or subject that it describes.

Prior consistent statements

  • Generally statements made by witness beforehand which mean the same thing as evidence given in court will not be allowed.
  • These statements can be used in court where it goes to show that the witness has not just made up something new in court but in fact is consistently giving the same story on a particular issue. Where the victim of a sexual assault has recently made a complaint of the offence then prior consistent statements are allowed.

Hostile Witnesses:

  • This is where a witness gives information in the court which is different to that made in a witness statement.
  • This will affect the case made by whichever party is using them as a witness.
  • The result may be to have the person declared a hostile witness which allows the party to ask questions of the witness in a way that would otherwise not be allowed. * * Leading questions can be used.
  • The credit of the witness can be examined if they are a hostile witness.

Step Two: Cross-examinationEdit

This follows examination in chief. Cross-examination is the questioning done by the opposite party to the one who calls the witness to support their case. Evidence which has indirect relevance or is about the witness’s credibility is allowed. Questions which suggest answers are also allowed at this stage of a trial. This is important so that the evidence given can be tested. A party cannot conceal evidence and then bring it out during cross-examination as this would be unfair to the other party. The court can exempt a witness from having to answer questions about their credibility during cross-examination in certain circumstances. An important rule is that a party must give warning to the other party if they intend to challenge the testimony of a witness. Answers given in cross-examination about matters that are only indirectly relevant, that is only concerning the witness’s credibility, to the case are final. Such answers can however be further questioned if either it relates to a prior conviction, is of bias or there is unreliability due to physical or mental disability.

Prior-inconsistent statements When a witness has said something previously that is contradictory with what they say in court about something central to the case then they can be asked about this in cross-examination. If they deny that there is any contradiction then the party who is cross-examining them is permitted to show the court this earlier statement (s21(a) Evidence Act WA).

Step Three: Re-examination Edit

Party will not usually be able to bring new evidence at the end of the trial. There are certain circumstances in which this will be permitted. A party must show the court all their evidence in the case and not keep some until the end for fairness. All evidence needs to be brought forward before the case is closed. Where evidence can be brought at the end of the trial include;

  1. Where it relates only to formality and it was not deliberately withheld
  2. Where it could not be foreseen that the evidence would be available and it is relevant
  3. Where the evidence is fresh
  4. (Sometimes) If the other party has not given warning about challenging a testimony