5.3 It is a general principle of the common law that a witness must testify in his or her own words. In order to protect the integrity of the evidence, a party who calls a witness is prevented from asking leading questions—questions that suggest a desired answer or a set of assumptions.
5.4 Under s 37 of the uniform Evidence Acts, a leading question may not be put to a witness in examination in chief or re-examination except where:
the court has given leave;
the matter relates to an introductory part of the witness’ evidence;
no objection is made to the question (where the other party is represented by a lawyer);
the question relates to a matter not in dispute; or
the witness is an expert and the question seeks the witness’ opinion on a hypothetical statement of facts related to the evidence being adduced.
5.5 This provision reflects what the ALRC considered in its final Report of the previous Evidence inquiry to be existing practices in relation to leading questions. The exceptions contained in the legislation are similar to those canvassed by the ALRC as instances where leading questions could be appropriate either to obtain the whole of a witness’ evidence or to expedite the trial.
Giving evidence in narrative form
5.6 In a trial, witnesses generally give their evidence in response to specific questions from counsel. The uniform Evidence Acts maintain the question and answer format as the primary way in which witnesses are examined. However, s 29(2) of the Acts also allows a witness to give evidence wholly or partially in narrative form, where the party applies to the court for a direction allowing the witness to do so. ‘Narrative form’ refers to the witness giving evidence as a continuous story in his or her own words, uninterrupted by questions from counsel.
5.7 In the Interim Report of the previous Evidence inquiry, the ALRC noted that there was a general reluctance by lawyers to allow witnesses to tell their story freely, with oral evidence being limited to the answering of specific questions. However, research cited by the ALRC shows that allowing a witness to give a free report of events as a narrative may yield a significantly more accurate version, as answering specific questions may limit and distort testimony. Giving evidence in narrative form may also be more culturally appropriate for some witnesses and may assist child witnesses to give evidence.
5.8 ALRC 26 discussed criticisms of ‘free report’ or narrative evidence. It has been argued that the method leads to witnesses taking charge of proceedings, resulting in wasted court time. Witnesses may also give irrelevant or inadmissible evidence, including hearsay evidence. Nonetheless, although the ALRC acknowledged that the benefit may be marginal in a number of cases, it was suggested that narrative evidence should be encouraged, to avoid the ‘filtering and distorting’ process of giving evidence by question and answer.
Psychological research lends support to the claim advanced at times by witnesses that being tied to answering designated questions tends to result in the distortion of their testimony. Similarly, the claim that a free report would give a more accurate version of the events in dispute is supported. On the other hand, psychological research also confirms the experience of many legal practitioners: a free report by a witness is usually found to be sketchy or incomplete. … Obviously, both these techniques have positive and negative attributes and there would be considerable merit in the courts generally adopting a procedure which incorporated the use of each method to its greatest advantage.
5.9 The ALRC suggested that while it would not always be desirable, the opportunity for evidence to be given in free narrative should be available under the Acts to encourage the court to adopt the practice where appropriate.
5.10 As noted above, s 29(2) of the uniform Evidence Acts allows a witness to give evidence in narrative form if the party calling the witness applies to the court for a direction that the witness give evidence in that form. As with making any directions under the uniform Evidence Acts, the court must take into account the factors listed in s 192(2) when considering whether to make any directions regarding how the witness is to give their evidence. Where the court gives no direction under s 29, the witness must give his or her evidence in question and answer form. If an answer is unresponsive to the question asked, it may be struck out. Section 29 applies only where the evidence is given orally by the witness, and does not apply to affidavit evidence.
5.11 The requirement that a party apply for a direction was not part of the ALRC’s original recommendation. It has been suggested that the requirement to apply for a direction has limited the use of s 29. Stephen Odgers SC points out that a lawyer would rarely seek to have their own witness give evidence in narrative form, as it potentially allows the witness to take charge of the proceedings. Similarly, Andrew Ligertwood states that, as directions under s 29 can only be made on application of the party calling the witness, the section is unlikely to be used. Odgers notes that the section is most likely to be used in relation to expert witnesses, because they are familiar with the rules of evidence and can observe warnings regarding what evidence is or is not admissible.
5.12 Section 29(2) reflects the common law position. The general rule is that evidence is given by question and answer, but an exception may be made where it would aid in the giving of more effective evidence. The evidence legislation in force in Victoria and Western Australia contains provisions relating to narrative evidence, although these are more specifically directed at complex or expert evidence. Under s 42B of the Evidence Act 1958 (Vic) and s 27B of the Evidence Act 1906 (WA), the court may direct that voluminous or complex evidence be given in narrative form. These sections do not require an application by counsel.
5.13 The court may benefit from receiving evidence in narrative form from witnesses other than expert witnesses.
Aboriginal and Torres Strait Islander witnesses
5.14 The question and answer method for eliciting evidence may be particularly inappropriate for Aboriginal and Torres Strait Islander (ATSI) witnesses who are not accustomed to this method of communication or to approaching a story in a direct way in response to specific questions. It has been argued that a question and answer method of eliciting information can be socially distressing for ATSI witnesses, because it is antithetical to their culture and style of communication, which emphasises narrative and indirect means of eliciting information. Studies have shown that indirectness is a definitive characteristic of ATSI communicative styles.
5.15 The New South Wales Law Reform Commission (NSWLRC) has identified a number of areas where communication difficulties may occur between ATSI people and other people in a courtroom setting:
ATSI society values the use of silence in conversation more than non-ATSI society, which can lead to misunderstanding in court and incorrectly be seen as guilt, ignorance or reflection of a communication breakdown;
an ATSI witness may agree gratuitously with whatever the questioner has put to him or her. This often occurs where many ‘yes-no’ questions are asked by someone in a position of authority; and
ATSI people frequently do not use numbers or other quantitative means of describing events, such as days of the week, dates or time. Consequently, if specific answers are sought to questions like ‘how’ or ‘when’, ATSI witnesses are frequently seen as vague.
5.16 Australian courts have to a certain extent recognised that the question and answer method is not always the most effective way of eliciting information from ATSI witnesses. For example, Blackburn J stated that experience taught him not to rely too heavily on the cross-examination of ATSI witnesses. O’Loughlin J in De Rose v South Australia considered that the interests of justice would be best served by a witness giving his or her evidence in the most convenient and comfortable way for that witness.
5.17 The Queensland Criminal Justice Commission has recommended that the Evidence Act 1977 (Qld) be amended to allow the court to direct a witness to give evidence wholly or partly in narrative form. This recommendation has not been implemented. The NSWLRC also recommended that the court should be able to exercise a discretion, wherever possible, to allow ATSI offenders to give their evidence in narrative form.
5.18 The question and answer method of giving evidence may be particularly difficult for witnesses who are children, due to such factors as the formality of the court, legal language and procedures, and the limitations of children’s understanding, experience and language.
5.19 In Seen and Heard: Priority for Children in the Legal Process (ALRC 84), the ALRC and the Human Rights and Equal Opportunity Commission (HREOC) looked extensively at research into children’s memory and the sociology and psychology of disclosing remembered events. ALRC 84 noted that the presumed gulf between the reliability of evidence from children and from adults appeared to be exaggerated. Studies demonstrated that the ability to remember and describe an event accurately, both at the time of questioning and at later dates, could be dependent on the interviewing method. Using misleading or suggestive questioning techniques adversely affects children’s ability to recall an event accurately, and repetition of questions can also lead children to change their answers, as they may interpret the repetition of the question as a sign that their first answer was wrong. When children were asked to recount, in a free recall narrative, everything they remember, they typically remember less detail than older children or adults, although the information they do recall is equally accurate.
5.20 ALRC 84 considered that allowing children to give their evidence in narrative form would be helpful in overcoming the problems children face in giving evidence in court, although it would not address the problems associated with cross-examination.
5.21 Recommendations regarding the giving of evidence by children tend to focus on ways to keep children out of the courtroom, rather than the manner in which they give evidence. Most jurisdictions now allow for alternative arrangements to be made, such as for children’s evidence in certain proceedings to be given via video links, closed circuit television, or a recording of a previous statement. These procedural rules are discussed further in Chapter 20.
Witnesses with an intellectual disability
5.22 The question and answer method of giving evidence may also be unsuitable for witnesses with an intellectual disability. For example, a person with an intellectual disability may use simple language and non-verbal communication methods. In its submission to the Inquiry, the Intellectual Disability Rights Service notes that difficulties in using numbers or other quantitative means of describing events may be part of a person’s intellectual disability. Therefore if a witness with such a disability is asked questions like ‘how’ or ‘when’, they might be seen as vague or evasive.
DP 69 proposal
5.23 In response to IP 28, the Commissions received differing views on the desirability of encouraging the use of narrative evidence. A common view expressed was that narrative evidence will allow a witness to give inadmissible evidence.However, support was received for the view that the ability to give evidence in narrative form was important for ATSI witnesses and for child witnesses.
5.24 In DP 69, the Commissions noted that the criticisms of narrative evidence raised in submissions and consultations are essentially the same as those considered in ALRC 26. The Commissions endorsed the view expressed in ALRC 26, that there is a place for narrative evidence in courtrooms and that its use should be encouraged. The considerable body of research identified above supports this position. In DP 69, the Commissions argued that more effective use may be made of s 29(2) if the requirement for a party to apply for a direction is removed and a provision closer to the ALRC’s original proposal enacted.
5.25 It was therefore proposed that s 29 of the uniform Evidence Acts be amended to remove the requirement that a party must apply to the court for a direction that the witness may give evidence in narrative form. A court would be able give directions about what evidence is to be given in narrative form and the way in which that evidence may be given.
Submissions and consultations
5.26 Many of the concerns expressed in response to IP 28 were echoed in submissions on DP 69. The New South Wales Public Defenders Office (NSW PDO) opposes the proposal on the basis that there is an increased risk that a witness gives irrelevant or prejudicial evidence if the evidence is not adduced in traditional question and answer form. The NSW PDO also believes that there is a contradiction within the Commission’s proposal, asking: if leave of the court is not required, how would directions be given about what evidence is to be given in narrative form?
5.27 The Criminal Law Committee of the Law Society of New South Wales agrees, and supports repeal of s 29(2). In the Committee’s view, the consequences of permitting a witness to give evidence in narrative form include increased risks of a trial being aborted as a result of witnesses giving prejudicial evidence, and lengthening the time it takes a witness to give evidence. In the view of the Criminal Law Committee, the problems of eliciting evidence from vulnerable witnesses would be better addressed by training of advocates and judicial officers in specialised advocacy techniques.
5.28 Victoria Legal Aid (VLA) does not believe that narrative evidence should be encouraged because a witness may include inadmissible evidence that may prejudice the jury and the jury may be left to disentangle facts from opinion in relevant evidence. In its view, vulnerable witnesses, such as child witnesses, are already sufficiently assisted in giving evidence by procedures such as pre-taping of evidence, use of closed circuit television and allowing support persons to be present.
5.29 The Law Society of South Australia opposes the proposal on the basis that the parties should be given notice of evidence being given in this form so that they may consider whether, and to what extent, they should object.
5.30 However, the Litigation Law and Practice Committee of the Law Society of New South Wales believes that the proposal is sound. It notes that the proposal does not make a significant change in current practice, and merely seeks to allow the court to make such a direction in respect of the giving of such evidence rather than leaving it in the hands of the parties to make an application. The Office of the Director of Public Prosecutions (NSW) (NSW DPP) also supports the proposal, as does the Intellectual Disability Rights Service. The Sydney South West Area Health Service (Eastern and Central Sexual Assault Service) submits that allowing a court to give directions about what evidence is to be given in narrative form can greatly assist witnesses in sexual assault matters who have a mental illness or an intellectual disability, child witnesses and those for whom English is a second language.
5.31 The Commonwealth Director of Public Prosecutions (CDPP) considers that the advantage of the proposed amendment is that it would be more flexible by removing the requirement for a formal application. A disadvantage would be that a prosecutor could lose control over presentation of the case if a judge directed that evidence be given in narrative form without reference to the prosecutor. However, it suggests that in practice the judge could be informed of reasons for not allowing a witness to give evidence in narrative form at the time the direction is proposed.
The Commissions’ view
5.32 Despite concerns from some advocates, the Commissions remain of the view that narrative evidence is an important tool in ensuring that the best evidence is before the court. This has been the view of a number of inquiries, and is supported by a number of submissions received. It is unlikely that such a provision will be used often. It may be used where, for example, a witness is lapsing into narrative evidence and the judge believes this is appropriate, where the court anticipates that a witness will best be able to give evidence in this form, or where a party makes an application that the witness be allowed to give evidence in this way. Relevant considerations include a witness’ age, cultural background and ability to observe warnings about what evidence is admissible.
5.33 While such a change may not impact on the practice of advocates, it signals a clear legislative intention that the section should be used where it will lead to the best outcome for the court in receiving the witness’ evidence. Should the process of giving evidence in narrative form result in undue delay or inadmissible evidence being given, a judge has sufficient powers under ss 135 and 136 to control the proceedings.
5.34 The uniform Evidence Acts should therefore provide that the evidence may be given in narrative form, without the need for an application from a party. The court should be able to give a general direction about which evidence is to be given in narrative form and the way in which that evidence may be given. The Commissions note the view of the CDPP regarding maintaining s 29(3) and have taken that concern into account in drafting a recommended provision. That provision is set out in Appendix 1.
5.35 As noted recently by the Victorian Law Reform Commission (VLRC), judicial officers play a key role in controlling the courtroom process and the manner and type of questions that are put to witnesses. ALRC 84 noted that most lawyers, magistrates and judges are not trained in talking to children and lack the necessary language, sensitivity and skills to elicit a coherent account from a child in courtroom interrogations. ALRC 84 recommended that guidelines and training programs be developed to assist judges and magistrates in dealing with child witnesses.
5.36 Amending the legislation will not provide a complete answer for the issues raised. Without an understanding of the reasons why giving evidence in narrative form may be more appropriate for some witnesses, it is likely that judges will fall back on their own experience as advocates and view this practice with suspicion. Judicial colleges should be invited to consider including in their program training on the ways in which different types of witnesses may respond to traditional methods of examination in chief and cross-examination. A recommendation in this regard is made in Chapter 3. As noted in DP 69, significant work is already being undertaken in this area.
Recommendation 5–1 Section 29 of the uniform Evidence Acts should be amended to remove the requirement that a party must apply to the court for a direction that the witness may give evidence in narrative form. It should provide that a court may, on its own motion or on application, direct that the witness give evidence wholly or partly in narrative form, and the way in which narrative evidence may be given.
 A Ligertwood, Australian Evidence (4th ed, 2004), 537.
 Defined in the uniform Evidence Acts as a question which directly or indirectly suggests a particular answer to a question or assumes the existence of a fact which is in dispute: Evidence Act 1995 (Cth) Dictionary, Pt 1; Evidence Act 1995 (NSW) Dictionary, Pt 1; Evidence Act 2001 (Tas) s 3(1); Evidence Act 2004 (NI) Dictionary, Pt 1.
 Such as standard questions regarding name, occupation and relationship to the parties to proceedings.
 Australian Law Reform Commission, Evidence, ALRC 38 (1987), .
 Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), .
 Ibid, .
 Ibid, , –.
 Ibid, –.
 Ibid, –.
 Ibid, –.
 S Odgers, Uniform Evidence Law (6th ed, 2004), [1.2.2180].
R v Parkes (2003) 147 A Crim R 450. See also S Odgers, Uniform Evidence Law (6th ed, 2004), [1.2.2180].
Ramirez v Sandor’s Trustee (No 1) (Unreported, New South Wales Supreme Court, Young J, 22 April 1997). The issue of affidavit evidence is discussed further below.
 There is no comment in the second reading speeches or the explanatory memorandum as to why an application is required before a direction can be given.
 S Odgers, Uniform Evidence Law (6th ed, 2004), [1.2.2180], fn 82.
 A Ligertwood, Australian Evidence (4th ed, 2004), [7.119].
 S Odgers, Uniform Evidence Law (6th ed, 2004), [1.2.2180].
 In R v Butera (1987) 164 CLR 180, referring to evidence given by charts or explanatory materials, the High Court stated that in waiving the general rules regarding the giving of evidence, the court must consider whether there is a risk that an altered form of giving evidence might give it undue weight.
 Other issues concerning the evidence of Aboriginal and Torres Strait Islander witnesses are discussed in Ch 19.
 Queensland Criminal Justice Commission, Aboriginal Witnesses in Queensland’s Criminal Courts (1996), Ch 4.
 J Byrne, Indigenous Witnesses and the Native Title Act 1993 (Cth)—Occasional Paper Series No 2/2003 (2003) National Native Title Tribunal.
 Ibid, citing D Eades ‘Communicative Strategies in Aboriginal English’, S Romaine (ed) Language in Australia (1991), 84.
 New South Wales Law Reform Commission, Sentencing: Aboriginal Offenders, Report 96 (2000), [7.5].
Milirrpum v Nabalco Pty Ltd (1971) FLR 141, 171.
De Rose v South Australia  FCA 1342, .
 Queensland Criminal Justice Commission, Aboriginal Witnesses in Queensland’s Criminal Courts (1996), Ch 4, Rec 4.1.
 New South Wales Law Reform Commission, Sentencing: Aboriginal Offenders, Report 96 (2000), [7.41].
 P Byrne, ‘Children as Witnesses: Legal Aspects’ in J Vernon (ed), Children as Witnesses: Proceedings of a Conference (1991). In relation to cross-examination, researcher Dr Mark Brennan has found that the complex language of questioning means that ‘children six to fifteen years of age fail to hear as sensible language about half of what is addressed to them during cross-examination’: M Brennan, ‘The Discourse of Denial: Cross-Examining Child Victim Witnesses’ (1995) 23 Journal of Pragmatics 71.
 Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, ALRC 84 (1997), [14.19].
 Ibid, [14.20].
 Ibid, [14.21].
 Ibid, [14.114].
Evidence (Children) Act 1997 (NSW); Evidence (Children and Special Witnesses) Act 2001 (Tas); Evidence Reform (Children and Sexual Offences) Act 2004 (NT); Evidence Act 1977 (Qld) ss 21AA–21AW; Evidence Act 1929 (SA) ss 12, 13; Evidence Act 1958 (Vic), ss 37B, 37C, 42F; Evidence Act 1906 (WA) ss 106H–106P.
 New South Wales Law Reform Commission People with an Intellectual Disability and the Criminal Justice System, Report 80, (1996), 259. See also Intellectual Disability Rights Service, Submission E 101, 23 September 2005.
 Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [5.14]. For example, B Donovan, Consultation, Sydney, 21 February 2005; Victoria Legal Aid, Submission E 22, 18 February 2005; New South Wales Public Defenders Office, Submission E 50, 21 April 2005.
 Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [5.14].
 Ibid, [5.36].
 Ibid, Proposal 5–1.
 New South Wales Public Defenders Office, Submission E 89, 19 September 2005.
 The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005.
 Victoria Legal Aid, Submission E 113, 30 September 2005. Some of these protections are discussed below.
 The Law Society of South Australia, Submission E 69, 15 September 2005.
 The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005. Support for the proposal was also received from the NSW DPP, and the Intellectual Disability Rights Service: Director of Public Prosecutions (NSW), Submission E 87, 16 September 2005; Intellectual Disability Rights Service, Submission E 101, 23 September 2005.
 Director of Public Prosecutions (NSW), Submission E 87, 16 September 2005; Intellectual Disability Rights Service, Submission E 101, 23 September 2005.
 Eastern and Central Sexual Assault Service, Submission E 61, 24 August 2005.
 Commonwealth Director of Public Prosecutions, Submission E 108, 16 September 2005.
 Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [5.154].
 Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, ALRC 84 (1997), [14.112].
 Ibid, Rec 110.
 For example, the Australian Institute of Judicial Administration has published an Aboriginal Cultural Awareness Benchbook for Western Australian Courts, which includes information on cross-cultural issues that may arise in the conduct of trials involving ATSI people: Australian Institute of Judicial Administration, Aboriginal Cultural Awareness Benchbook for Western Australian Courts (2004) Australian Institute of Judicial Administration <www.aija.org.au/online/ICABenchbook.htm> at 28 November 2005; see also Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [5.155].