Published on 1/07/2007

2. Adducing Evidence – Witnesses

2. Adducing Evidence – Witnesses

2.1 Calling of witness
•   Witness testimony most common form of giving evidence
•   Witnesses testify to facts and opinions. Expert witnesses can testify their opinion
•   Out of court statements by witnesses may be admissible
•   Witness testimony is adduced by examination in chief or cross examination
•   Witness comes to court in answer to subpoena.
•   Witness must be competent, if competent they will be compellable
•   Demeanour, reliability and substance of witness’s evidence can be tested in oral testimony.
•   Witnesses testify on oath or affirmation  this is sworn testimony
•   Witnesses can also give unsworn testimony
•   There is a difference between sworn and unsworn testimony: Implications of perjury are not there for unsworn and unsworn carries much less weight.
•   There is inherent power in court for judge to call witnesses, although Calling of witnesses is ordinarily a function for the parties, rarely the judge.

General Powers of a Court s11
(1) The power of a court to control the conduct of a proceeding is not affected by this Act, except so far as this Act provides otherwise expressly or by necessary intendment.
(2) In particular the powers of a court with respect to abuse of process in a proceeding are not affected.

Court's control over questioning of witnesses s26
The court may make such orders as it considers just in relation to: (a) the way in which witnesses are to be questioned; and (b) the production and use of documents and things in connection with the questioning of witnesses; and (c) the order in which parties may question a witness; and (d) the presence and behaviour of any person in connection with the questioning of witnesses.

•   It has been held that the 'wide powers' given by this provision and s11 to a court include a power to call witnesses Milano Investments Pty Ltd v Group Developers Pty Ltd unrep (1997).

Clark Equipment (1988) (Civil proceedings)
•   Parties are usually responsible for calling witnesses and the order in which they are called
•   However, Court has inherent power to call a witness  but it is rare for a judge to do this

Criminal Cases: Prosecution Witness - Apostilides
1. Can question P on reasons, invite to reconsider, can’t direct P to call witness
2. Not adjudicate on those reasons
3. May make comment to jury as to effect of leaving out material witness
4. Can in the most exceptional of circumstances call a witness himself
5. Threat to P is that verdict may be unsafe and unsatisfactory
6. P must consider his/her duties: Kneebone v R (1999)

R v Apostilides (Responsibilities of the prosecution)
Facts: This was a sexual assault trial in which two witnesses were not called by the prosecution  the witnesses were also not called to testify by the trial judge, which left the defence to call the witnesses; this left the prosecution to ask leading questions.
•   The matter went to the high court which gave six propositions as to the responsibilities of the prosecution.
Held:
1.   The Crown Prosecutor alone bears the responsibility of deciding who is to be called for as a witness for the Crown.
2.   The trial judge may, but is not obliged to question the prosecution as to why he did not call a witness.
3.   The trial judge may invite the prosecutor to reconsider the implications of not calling a witness, but can not direct a prosecutor to call a particular witness.
4.   When charging the jury, the judge may make comments as he thinks appropriate with respect to the prosecution’s failure to call witnesses
5.   In the most exceptional circumstances the trial judge can call a witness.
6.   The decision not to call a particular witness will not set aside a conviction, unless viewed against the conduct of the whole trial, a miscarriage of justice has occurred.
•   The effect of Apostilides is not so severe now because of s38 of the EA  s38 is a procedure for cross-examining your own witness if they are unfavourable. It replaces the hostile witness doctrine.

R v Kneebone (1999)   (Prosecutor’s first duty to present case fairly: Failure of Prosecution to call important witness)
Facts: Girl complains of sexual assault by her mother's new husband. The girl said her mother walked in during the sexual assault and said “that’s enough”. Father continued.
•   The girl’s credibility was questioned. Neither side called the mother as a witness, whose evidence would have been very important.
•   Notwithstanding, that on the evidence of the complainant, her mother was a material eyewitness, she was not called by the Crown as the crown believed her to be unreliable – a conclusion only available to the court post evidence.
Held: James J: First duty is that the prosecutor presents the case fairly.
•   There was no basis put forward in evidence which would have entitled the Crown prosecutor, on the basis of unreliability, to have formed the view that the mother should not properly have been called in the Crown case. There was, for example, no evidence that the mother was unwilling to speak to the police; nor was there any attempt to interview her  there must be identifiable facts which justify the such a conclusion. M m
•   By reason of the failure to call the mother, occasioned by the failure to adopt an appropriate course to enable proper consideration of the question of unreliability, a miscarriage of justice occurred.
•   Crown has a duty to call material witnesses and must have a conference with them before deciding whether they are to be called.

Velevski
Facts: Velevski was on trial for killing wife and children  Crown said V killed them all, whilst defence said mother killed them and then committed suicide
•   Trial became a ‘Battle of experts’
Issue: Did the prosecution have an obligation to call all of the pathologists (experts) who agreed with the main forensic pathologist’s report?
Held:
•   Gleeson J: Fairness to the accused did not extend to calling witnesses having differing opinions
•   Gaudron J: Would be going too far to have to call all the witnesses
•   Gummow and Callinan JJ (minority): Crown should have called them  however it didn’t amount to a miscarriage of justice because they didn’t call all the witnesses

2.2 Competence and Compellability
•   Witness has been called and they come into witness box and they have to be competent
•   Competence - a person is competent if that person may lawfully be called to give evidence
•   Compellability - a person is compellable if that person can lawfully be obliged or required to give evidence.
•   Sworn - on oath or affirmation
•   Unsworn - not on oath or affirmation; definition in s13(2), given less weight

Competence and compellability s12
Except as otherwise provided by this Act:
(a) every person is competent to give evidence; and
(b) a person who is competent to give evidence about a fact is compellable to give that evidence

All witnesses are presumed competent, and all witnesses who are competent are compellable. The effect of this provision is that all witnesses are both competent to give evidence and compellable to give evidence. The succeeding provisions provide exceptions to that general proposition. Note 'competent to give evidence about a fact' allows a court to decide that a witness is competent to find evidence about some facts but not others. Includes children as in R v Brooks (1998)

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Competence: lack of capacity s13
(1) A person who is incapable of understanding that, in giving evidence, he or she is under an obligation to give truthful evidence is not competent to give sworn evidence.
(2) A person who because of subsection (1) is not competent to give sworn evidence is competent to give unsworn evidence if: (a) the court is satisfied that the person understands the difference between the truth and a lie; and (b) the court tells the person that it is important to tell the truth; and (c) the person indicates, by responding appropriately when asked, that he or she will not tell lies in the proceeding.
(3) A person who is incapable of giving a rational reply to a question about a fact is not competent to give evidence about the fact, but may be competent to give evidence about other facts.
(4) A person is not competent to give evidence about a fact if: (a) the person is incapable of hearing or understanding, or of communicating a reply to, a question about the fact; and (b) that incapacity cannot be overcome.
(5) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section. Given s13(5), the burden of proof will be on the party asserting that a witness is not competent. In accordance with s142(1) that party will have to prove this on the 'balance of probabilities'.
(6) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence. (Any evidence they gave before becoming incompetent is still admissible.)
(7) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit. (eg they may call in a child psychologist to question a child’s testimony.)

R v Brooks (1998)
Facts: Brooks was convicted of child sexual assault  the complainant was under 12 years of age
•   At trial of B, the judge made a fundamental error.
•   Witness (plaintiff) gave unsworn evidence and judge presumed that because plaintiff was under 12, she was not competent to give sworn evidence.

Held: Judge should have gone to 13(1) FIRST to determine competency and then 13(2) because there is a presumption of competency. Judge went first to s13(2) therefore the evidence was wrongly adduced, so the evidence was not evidence. A very strict reading of the statute was required here.
•   Conviction was set aside and the appeal was upheld.
•   Ct of Appeal said it was a highly technical reasoning, but the effect was that the evidence had no force and had no status.
•   Sperling J: emphasises that there has to be a direction from the court. Authority of the court is to give an instruction, that is the policy underlying it (s13(2)(b))

Compellability: reduced capacity s14
This provision empowers the court to allow a witness to choose not to give evidence 'on a particular matter' where undue cost or delay would be involved in overcoming some incapacity or if adequate evidence on that matter is capable of being given from other sources.

Compellability: Sovereign and others s15
None of the following is compellable to give evidence: (a) the Sovereign; (b) the Governor-General; (c) the Governor of a State; (d) the Administrator of a Territory; (e) a foreign sovereign or the Head of State of a foreign country.

Competence and compellability: judges and jurors s16
(1) A person who is a judge juror in a proceeding is not competent to give evidence in that proceeding. However a juror is competent in the proceeding about matters affecting the conduct of the proceeding.
(2) A person who is or was a judge in an Australian or overseas proceeding is not compellable to give evidence about that proceeding unless the court gives leave.

Competence and compellability: defendants in criminal proceedings s17
(2) A defendant is not competent to give evidence as a witness for the prosecution:
(3) An associated defendant is not compellable to give evidence for or against a defendant in a criminal proceeding, unless tried separately: Note if non compellable they can still choose to give evidence.
(4) Court must ensure that an associated defendant, tried jointly, is aware of s17(3)
- In all cases where the co-offender is giving evidence you must consider s165 and s137 issues also.
Common Law for spousal compellability
•Other than domestic violence, a spouse is neither competent nor compellable in criminal cases: R v Lapworth

Compellability of spouses and others in criminal proceedings generally s18
(2) Persons who may object to giving evidence are a spouse, de facto spouse, parent or child of a defendant; grand parents can’t object
(3) An objection is to be made before the person gives evidence or as soon as practicable after the person becomes aware of the right to object
(4) If it appears to the court that the person may have a right to object, the Court is to make the witness aware of the effect of this section [Requires Notice]
(5) Court is to hear and determine any objection under this section in absence of the jury [Voire Dire Requirement]
(6) The test for the objection to being compellable is the harm to the relationship of the witness and defendant vs desirability of giving evidence [Balancing test].
(7) Without limiting the matters that may be taken into account by the court for the purposes of subsection

(6), it must take into account the following: [Reasons for Compelling] (a) the nature and gravity of the offence for which the defendant is being prosecuted; (b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it; (c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor; (d) the nature of the relationship between the defendant and the person; (e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant. (8) Prosecutor may not comment on the objection, court’s decision in relation to the objection or the failure of the person to give evidence.

R v Khan (unreported 1995) (Availability of alternative evidence may be a crucial factor)
Facts: Accused charged with murder of a lodger who he suspected was having an affair with his wife.
•   Crown’s case was based on a statement by the wife who said that K burst in on her and the lodger in bed and stabbed the lodger 67 times.
•   Just before the trial Mrs K said that she would testify that she was being sexually assaulted by the lodger and that is why K stabbed him.
•   She and her husband had been together for 10 years, he was the father of her children and they remained living together notwithstanding the charges
Issue: Should she be compelled to give evidence?

Held: Balancing act must be performed in relation to s18(6)  the criteria in (7) were also considered.
•   Her being required to give evidence would likely cause harm to the relationship with the accused to the extent that it outweighed the desirability of having evidence given.
•   Further, the evidence would be of relatively little weight and significant matters could be proven by other evidence that linked K to the murder etc.

RULE: FAMILY MEMBERS, IF COMPETENT, ARE NOT COMPELLABLE IF DOES MORE HARM THAN GOOD

Spousal Compellability in Criminal Proceedings s19
A spouse is compellable in certain cases, relating to the following provisions:
•Children (Care and Protection) Act 1987
–section 25 (Child abuse)
–section 26 (Neglect of children)
–section 51 (Endangering children in employment)
–section 52 (Certain employers of children to be authorised)
•s.104 Criminal Procedure Act 1986 –domestic violence / child assault

Accused May Refuse To Testify, And No Adverse Inference / Direction Is Permitted

Comment on failure to give evidence s20
(1) This section applies only to a criminal proceeding for an indictable offence
(2) The judge (or any party other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.
(3) The judge (or any party other than the prosecutor) may comment on failure to give evidence by a person who, at the time of the failure, was:
    (a) the defendant’s spouse or defacto spouse; or
    (b) a child or parent of the defendant.                                                                                                                                   (4) However, unless the comment is made by another defendant in the proceeding, a comment of the kind referred to in subsection (3) must not suggest that the spouse, de facto spouse, parent or child believed that the defendant was guilty of the offence concerned.
(5) If:
   (a) 2 or more persons are being tried together for an indictable offence; and
   (b) comment is made by any of those persons on the failure of any of those persons or of the      spouse or de facto spouse, or parent or child, of any of those persons to give evidence;
   the judge may, in addition to commenting on the failure to give evidence, comment on any comment of a kind referred to in paragraph (b).

•   Great care must be taken by a judge not to INDIRECTLY suggest D refused to testify in belief of wrongdoing etc.: RPS v R

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2.3 Sworn and Unsworn Evidence

Sworn evidence of witnesses s21
(1) A witness in a proceeding must take either an oath, or make an affirmation, before giving evidence.
(2) Subsection (1) does not apply to a person who gives unsworn evidence under s13(2)
(3) A person who is called merely to produce a document or thing to the court need not take an oath or make an affirmation before doing so.
(5) An affirmation has the same effect as for all purposes as an oath.

•   s22 – an interpreters evidence is to be on oath or affirmation
•   s23 – (1) a witness/interpreter has a choice of oath or affirmation; (2) court to inform of both; (3) Court may direct witness to make affirmation if (a) person refuses to make a choice (b) it is not reasonably practicable for person to take an oath.

Requirements for oaths s24
(1) A religious text need not be used.
(2) An oath is effective even if the person:
(a) did not have a religious belief or did not have a religious belief of a particular kind
(b) did not understand the nature and consequences of the oath
s24A (NSW only)  (1) person may take an oath even if person’s belief don’t include a belief in God; (2) Form of the oath (a) need not include a reference to God, and (b) may instead refer to the basis of the person’s beliefs in accordance with a form prescribed by the regulations.

2.4 Examination of Witnesses

(a) Form of questioning

Court’s control of the examination of witness. s26
The court may make such orders as it considers just in relation to: (a)the way in which witnesses are to be questioned (b)the production and use of documents and things in connection with the questioning of witnesses (c)the order in which parties may question a witness (d)the presence and behaviour of any person in connection with the questioning of any witness.

s27 A party may question any witness, except as provided by this Act

Order of examination in chief, cross-examination and re-examination s28
Unless the court other wise directs:                                                                                          (a)cross-examination of a witness is not to take place before the examination in chief of a witness; and (b)re-examination of a witness is not to take place before all other parties who wish to do so have cross examined the witness.

•   Examination in chief: questioning of a witness by the party who called the witness to give evidence.
•   Cross-examination: questioning of a witness by a party other than the party who called the witness to give evidence.
•   Re-Examination: questioning of a witness by the party who called that witness to give evidence after the other party has questioned them.

Manner and form of questioning witnesses and their responses s29
(1) A party may question a witness in any way the party thinks fit except as provided by this chapter or as directed by the court.
(2) A witness may give evidence wholly or partly in narrative form if: (a) the party that called the witness has applied to the court for a direction that the witness give evidence in that form; or (b) the court so directs.
(3) Such direction may include directions about the way in which evidence is to be given in that form.
(4) Evidence may be given in the form of charts, summaries or other explanatory material if it appears that this would aid in comprehension of the evidence.

GPI v Leisure Corp (1990) (per Young J)
Facts: There was a dispute relating to the price of units in a unit trust.
•   It was contended that since that since the plaintiffs and the mortgagee involved were parties of the same interest, their respective counsel should not both be allowed to cross-examine the defence witness.

Held: Young J made 13 points including, (1) Only right, is right to a fair trial; … and (5) Where there is more than one counsel for the same party, then ordinarily the judge will not permit any more than one counsel to cross-examine the same witness, (6) where there are parties in the same interest, the judge will apply (5).
•   A judge can exercise discretion over an examination and cross-examination to ensure a fair trial  a judge may also limit a cross-examination for a good reason.

NMFM Property v Citibank Ltd (1999) (Affirmed the finding in GPI Leisure Corp)
Facts: NM sued Citibank over losses from a ‘negative gearing’ package organised by Citibank  Citibank then cross-claimed against 5 other defendants and 10 other people including Hacopian.

Issue: Whether counsel for NM should be allowed to cross-examine Hacopian, and if so, whether this should before counsel for Citibank did so.
Held: NM dids not have a ‘right’ to cross-examine Hacopian  however NM did have a right to a fair trial, and ordinarily a trial judge’s discretion will be properly exercised by allowing all parties other than the one who called a witness, to cross-examine him/her.
•   It was thus ruled that NM could cross-examine Hacopian  it was also considered appropriate for counsel for Citibank to cross-examine Hacopian before counsel for NM, with the provision that counsel for Citibank could cross-examine if necessary.

R v Esposito (1998)
Facts: The appellant had been convicted of murder and she appealed on the ground that the trial judge had unduly intervened in the hearing, resulting in a mistrial  the accused felt the manner in which the trial judge questioned the accused favoured the prosecution
•   Defence counsel raised point in the trial that judge was being excessive but, judge continued anyway. This strengthened the appeal ground.

Held: Judge’s intervention was excessive and inappropriate and the ground of appeal had been made good.
•   It was not appropriate for the Trial Judge to have ‘gone to the aid’ of the Crown, either in the presentation of the evidence, or in the summing-up  although possibly well-motivated, Court of appeal felt that it was excessive in this case.

Leading Questions – Examination in chief and re-examination (not a blanket prohibition)
Definition: A question asked of a witness that: (a) directly or indirectly suggests a particular answer to the question; or (b) assumes the existence of a fact, the existence of which is in dispute during the proceeding and as to the existence of which the witness has not given evidence before the question is asked.
s37
(1)A leading question must not be put to a witness in examination in chief or re-examination unless: (a) the court gives leave; or (b) the question relates to a matter introductory to the witness’s evidence; (as in, if asking your own witness, “Is your name X?”);or (c) no objection is made to the question and each party is represented by a lawyer; or (d) the question relates to a matter not in dispute; or (e) if the witness has specialised knowledge based on the witness’s training, study or experience - the question is asked for the purpose of obtaining the witness’s opinion about a hypothetical statement of facts, being facts in respect of which evidence has been, or is intended to be given.
(2) Subsection 1 does not apply in civil proceedings to questions about investigations, inspections or reports that the witness made in the course of carrying out official or public duties.
(b) Reviving Memory

Attempts to revive memory in court s32
(1)A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.
(2)Without limiting the matters that the court may take into account in deciding whether to give leave, the court is to take into account: (a) whether the witness will be able to recall the fact or opinion adequately without using the document; and (b) whether so much of the document as the witness proposes to use is a document that (i) was written by the witness when the events recorded were fresh in their memory; or
(ii) was, at such a time, found by the witness to be accurate.
(3) If the witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with leave of the court, can read aloud, as part of their evidence, so much of the document as relates to that fact or opinion.
(4) The court is to give directions that so much of the document as relates to the proceeding is to be produced to the other party (if they request it).

•   Must consider s192 in relation to leave requirements.
•   ‘Fresh in their memory’ differs from the common law position which required ‘contemporaneity’.
•   Where the document is used to refresh memory, whether in or out of court, all privileges attaching to the document will be waived.
R v Da Silva [1990] (Statute does not require contemporaneity anymore. Only needs to be near to the time)
Facts: Conversation in 21/12/96 in a jail cell
•   Witness shared cell with De Silva and had this conversation with accused, where De Silva admitted a robbery - Crown then called the cell mate to give evidence.
•   Before he gave evidence, he gave statement to police on 22/12/96 about the conversation.
Issue: Could the cell mate use the statement in the witness box a year later in trial?

Held: It should be open to the judge, in the exercise of his discretion and in the interests of justice, to permit a witness who has begun to give evidence to refresh his memory from a statement made near to the time of the events in question, even though it does not come within the definition of contemporaneous where:
a)   the witness indicates he can’t recall the details of the events;
b)   he made a statement much nearer to the time of the event and the contents of the statement represented his recollection at the time he made it;
c)   he had not read the statement prior to coming in the witness box
d)   he wants the opportunity to read the statement before continuing to give evidence.
•   e.g. doesn't need to be a contemporaneous statement to use in refreshing a witness’s memory if witness can't recall details of events, contents will aid his memory, he hasn't read it yet, he wished to use it. The witness should be allowed to leave the witness box to read the statement but if non-contemporaneous he shouldn't be allowed to use it in the box.

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Evidence given by police officers in criminal proceedings s33
(1) Despite s32, a police officer may give evidence in chief for the prosecution by reading or being led though a written statement previously made by the police officer
(2) Evidence may not be so given unless: (a) the statement was made by the police officer at the time or soon after the occurrence of the events to which it refers; and (b) the police officer signed the statement when it was made; and (c) a copy of the statement has been given to the other party a reasonable time before the hearing of the evidence for the prosecution.

•   For a Police officer in civil proceedings, s32 applies

Reviving memory out of court
•   If a witness is deprived the opportunity to see their notes prior to going to court, their testimony in the witness box becomes more of a test of memory than truthfulness: R v Westwell 1976  The problem is the awareness of the other party that a witness has refreshed their memory before trial  s34 was the redress.

Attempts to revive memory out of court s34
(1)   The court may direct that things used to revive memory out of court are produced for the purposes of the proceedings.
(2)   The court may refuse to admit the evidence given by the witness so far as it concerns a fact as to which the witness so tried to revive his or her memory if, without reasonable excuse, the directions have not been complied with.

•   This allows the other party to check for inconsistencies between the statement made and the evidence given in examination. This inconsistency will reduce the witness’s credibility.

-   Hypnosis out of court
•   Because of the problems with refreshment by hypnosis it is often treated differently to conventional memory refreshment.
•   Where a witness is hypnotised out of court (not in EA)
•   There are a set of guidelines which must be kept in order for the evidence to be given
•   Must be done by independent person (police can’t do it because of the suggestibility aspect – can influence the witness); hypnosis must be taped etc

R v Jenkyns (1993) (Hypnosis)
Facts: The issue in this case was whether the witness’ testimony should be ruled inadmissible due to potential contamination as a result of hypnosis.

Held: Per Hunt CJ: According to the guidelines put forward in McFelin, the onus lies upon the party seeking to introduce the hypnotically induced evidence to establish that it is safe to admit that evidence in the particular case, that it is sufficiently reliable as to provide a prima facie reason for admitting the evidence.
•   Hypnotically induced evidence must be limited to matters which the witness had recalled and related prior to the hypnosis  the substance of the original recollection must have been preserved in written, audio or video-recorded form  the hypnosis must have been conducted according to a defined procedure.

(c) Calling for a Document
•   The call process gives a cross-examiner in-court access to a witness’ notes used for refreshing memory  if done for the sole purpose of checking, it will not require the notes to be tendered. Section 35 abolished compulsory tendering of called documents.

Effect of calling for the production of documents s35
(1)   A party is not to be required to tender a document only because the party, whether under this Act or otherwise: (a) called for the document to be produced to the party or; (b) inspected it when it was so produced.
(2)   The party who produces a document so called for is not entitled to tender it only because the party to whom it was produced or who inspected it fails to tender it.
•   This provision abolishes the common law rule stated in Walker v Walker (1937) 57 CLR 630 that, in a civil trial, a party calling for and inspecting a document in the possession of another party can be required to tender it in evidence by the other party (even if it is otherwise inadmissible).

(d) Unfavourable Witness
•   Where a witness is called by a party and witness is unfavourable

s38
(1)   A party who has called a witness may, with leave of the court question the witness as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party; or (b) a matter which the witness may reasonably supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or (c) whether the witness has, at any time, made a prior inconsistent statement.
This provision replaces the existing common law principle of hostile witnesses. It allows cross-examination only with respect to the unfavourable material.
(2)   Questioning a witness under this section is taken to be cross-examination for the purposes of the Act (other than s39).
(3)   The party questioning the witness may with leave of the court question the witness about matters relevant only to the witness’ credibility.
(4)   Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs
(5)   The order in which the witness is questioned is to be as the court directs. (6) In allowing leave, the court is to consider: (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and (b) the matters on which, and the extent to which the witness has been and is likely to be questioned by the other party.
(7) A party is subject to the same liability to be cross-examined under this section as any other witness if:
(a) a proceeding is being conducted in the name of the party; and
(b) the party is a witness in the proceeding

•     s38 favours the prosecution more because they can call unfavourable witnesses and cross-examine them.
•   The benefit of cross-examining your own witness is that you can attack them with leading questions to determine inconsistencies

R v Hogan [2001] NSWCCA
Facts: Hogan was convicted of maliciously inflicting grievous bodily harm upon Matthew Gray while he was visiting his girlfriend.
•   Witness was crown witness and crown put an application to cross-examine this witness. The witness’s evidence was inconsistent with proof of evidence she gave in her statements.
Issues: Hogan appealed on the ground that the prosecution should not have been allowed under s38 to cross-examine Crown witnesses and introduce evidence that was inconsistent with parts of their evidence

Held: The Trial Judge failed to take into account the factors in s192 which apply generally to applications for leave - he also did not refer to factors in s38(6)
•   It is essential when considering the grant of leave to consider how far cross-examination might be permitted to extend, having regard to the bounds set by s38, to the matters to which regard must be had when granting leave in s38(6) and s192.
•   The Court referred to HCA authority of Stanoevski v The Queen  in this case the court held that s192 applies to applications for leave to cross-examine, and it referred to the mandatory requirement that these matters referred to in s192 be taken into account.
•   The judge failed to meet the statutory criteria and it was held that there was a miscarriage of justice and a new trial was ordered.

R v Le (2002)
Facts: Le was convicted of supplying heroin
Issues: One ground of appeal was that the trial judge should not have granted leave pursuant to s38 for the prosecutor to cross-examine a witness, Amber O’Brien  Le argued that the trial miscarried because of the unfair prejudice caused by this cross-examination

Held: Although the trial judge may have been open to criticism for the way in which the s38 questioning was allowed and prosecuted, it was the Court of Appeal’s opinion that no unfairness arose as a result of what happened.
•   On true construction of s38, leave may be granted under s38 to conduct questioning not only if the questioning is specifically directed to one of the three subjects described in s38(1), but also if it is directed to establishing the probability of the factual state of affairs in relation to those subjects contended for by the party conducting the questioning or the improbability of the witness’s evidence on those subjects.

2.5 Cross Examination of a Witness

•   Still concerned with adducing evidence.
•   Cross-examination is the questioning of a witness called by another party: Dictionary Uniform Evidence Act 1995. This can be done by directly attacking the evidence brought out, or by attacking the credibility of the witness. Cross-examination is also done to comply with the rule in Browne v Dunn.
•   Cross-examination seeks to:
a)   elicit supporting material for the cross examiner’s case
b)   nullify and damage testimony given in support of opponent's case
c)   by directly challenging the witness's version of facts that are in issue
d)   indirectly by attacking the witness's credibility

(a)   Form of questioning

Witness called in error s40
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.

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Improper questions s41
(1)   The court may disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the question is: (a) Misleading; or (b)Unduly annoying, harassing, repetitive, intimidating, offensive or oppressive.
(2)   Without limiting the matters that the court is to take into account for the purposes of (1), the court is to consider:
(a) any relevant condition or characteristic of the witness including age, personality and education; and (b)any mental, intellectual or physical disability to which the witness is or appears to be subject.

-   Leading Questions
•   Definition: A leading question is one which directly or indirectly suggests a particular answer to the question OR one which assumes the existence of a fact, the existence of which is in dispute and the witness has not yet given evidence on that.

Picker v The Queen

GPI Leisure Corp Ltd v Herdman Investments (1990)
•   Held: A question asked by counsel in chief is objectionable as leading when it suggests the answer, not when it merely directs the attention of the witness to the subject in respect of which he is questioned.

NMFM Property and Others v Citibank Ltd (1999)

Leading questions (Cross-examination) s42
(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.

•   Section 27 of the Evidence Act preserves the right to question a witness called by the other party to a case.

(b) Cross Examination on Documents

•   Where the witness has written a prior inconsistent statement a cross-examiner can use a document to cross-examine that witness

-   Prior Inconsistent Statements
1.   'prior inconsistent statement': a previous representation that is inconsistent with evidence given by the witness;
2.   'previous representation': is a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.

TEST: At common law the test of prior inconsistent statement is whether the statement is capable of being regarded as inconsistent with evidence given by the same witness. There is no requirement in section 43 that the prior statement be relative to the subject matter of the proceedings.

•   To be admissible the evidence of the prior inconsistent statement must be relevant (s56)  presumably, it will always be relevant because it relates to the credibility of the witness (s55(2)(a)).

•   Once admitted, it may be used as evidence of what was asserted in it (s60) as well as to discredit the witness. Where the statement is relevant only to the witness's credibility, the credibility rule (s102) must be satisfied. It, among other things, prevents evidence of the statement being adduced otherwise than from the witness unless (s106) 'the witness has denied the substance of the evidence'.

Prior inconsistent statements of witnesses s43
(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 the cross examiner: (a) informed the witness of the circumstances of the making of the statement to enable the witness to identify the statement; and (b) drew the witness’ attention to so much of the statement as is inconsistent with the witness’ evidence.
(3)   for the purpose of adducing evidence of the statement, a party may re-open the party’s case.

-   Previous Representations of Other Persons
•   This section allows a witness to be cross-examined on representations made by a person other than the witness in certain circumstances. These circumstances are exceptions to the general rule that previous representations may not be used to contradict evidence of a witness.

Previous representations of other persons s44
(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: (Cannot be produced to jury but jury will know it is contradictory).
(a)   the document must be produced to the witness;
(b)   if the document is a tape recording, or any other kind of document horn 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.

-   Production of Documents
•   As a general principle, using a document does not require that it be tendered in evidence.
•   s45 deals with the production and use of documents which have been the basis of cross examination under either s43 or 44  however it doesn't deal with other possible bases on which tender might be required (or on which the court might admit the document under s45(3)(c)).

Production of documents s45
(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. (i.e. other counsel.)
(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. (used in civil matters only in exceptional circumstances).
(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.

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(c)   The Rule in Brown v Dunne

Brown v Dunne (1894)
•   Held: The rule from this case stipulates that where the cross-examining party intends to later contradict a witness by calling further evidence, or by suggesting that a witness’ evidence can be otherwise explained, the witness should be given opportunity in cross-examination to comment upon the contradictory version.
•   This is particularly important because the burden of proof is on the prosecution in Criminal cases.

•   At common law, a breach of this rule will prevent a party from leading the evidence.
•   This is a rule of practice, based on fairness, which gives:
1.   the witness the chance to respond to the allegations, explain contradictions, and respond to attack, and;
2.   gives other party the chance to call corroborative evidence, or otherwise contradict the inference.

Leave to recall witnesses s46
(1) 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.

•   S46 is essentially a statutory incarnation of the rule in Brown v Dunne, designed to promote fairness in court proceedings.

R v Birks (1990) (Criminal Case  failure of defence counsel to cross examine complainant, and put to her new evidence.)
Facts: Birks was not cross-examined by his defence counsel on his denial of sexual assault in relation to anal sex against the complainant, and on how the complainant received facial injuries  this led to a vigorous attack by the prosecution who suggested he had made up his story
•   The Crown then asked the Trial Judge for a direction to jury for adverse inferences  there was no objection  then the defence counsel claimed he’s made a mistake, but by then it was too-late to re-open the case (jury had retired).
•   He was indicted for 18 counts of sexual assault, including vaginal, oral and anal sex.
•   Birks maintained that he had instructed his lawyers that no anal intercourse took place  what was required for fairness was to put to the complainant that there was never any anal intercourse and that she was hit in the head with a torch.
Held:
1.   It is accepted as a rule of professional practice in New South Wales that there is a general requirement that a cross-examiner put to an opponent’s witness the matters in respect of which it is intended to contradict the witness' evidence. Defence Counsel should have done this to the complainant.
2.   The rule has different practical content in a criminal trial. While it is a rule of fairness, fairness has different emphasis in a criminal trial, especially when accused is unrepresented.
3.   The consequences of the failure to observe the rule will vary depending on the circumstances of the case but will be related to the central object of the rule, which is to secure fairness  incompetence will not of itself attract appellate intervention.
•   The appeal court considered that the defence counsel's errors led to a miscarriage of justice  said the direction to the jury shouldn’t have been given, as the complainant was not given the opportunity to answer these new statements and should have been recalled.
•   Sometimes the interests of justice will be served by recalling a witness or stating that counsel may not call evidence  new trial on all charges ordered.
Payless Superbarn (1990) (Judge’s discretion to exclude evidence entirely, based on the Rule)
Facts: Mrs O’Gara suing payless supermarket for personal injury she endured by slipping on a grapes and injured her back  the plaintiff’s evidence was that she slipped on grapes.
•   Husband also gave evidence that his wife fell on grapes that kids threw on the ground, and there was an incident form written by the store manager  he put in report that there was a foreign substance on the floor.
•   The plaintiff was not cross-examined on the presence of grapes, and neither was husband  there was no challenge to presence of grapes on floor
•   However the Store Manager gave oral evidence that there was nothing on the floor (after P’s case closed)
Held: Trial Judge said there was a breach of the rule in Brown because the Defendant hadn’t cross-examined the Plaintiff about presence of grapes on the floor.
•   As a consequence of breach of the Brown v Dunne rule, the Judge directed the jury to disregard evidence of the Store Manager.
•   Court of Appeal determined whether this was appropriate consequence/remedy ruled by trial judge  it regarded the step of excluding evidence otherwise relevant and admissible as an extreme consequence of the breach, but with no evidence that the judge had taken irrelevant matters into consideration, it could not be shown that discretion had been inappropriately exercised.
•   There are no set consequences for a breach of this rule, and thus a judge must exercise discretion in the interests of justice.

2.6 Re-examination (Re-opening and rebuttal)
•   Civil and criminal trials apply the same principles in relation to reopening  however, where a party seeks to reopen in a civil case, the `interests of justice' are understandably party-neutral.

Limits on re-examination s39
On re-examination: (a) a witness may be questioned about matters arising out of evidence given by the witness in cross-examination; and (b) other questions may not be put to the witness unless the court gives leave.

•   s39(b) does allow for an application for leave of the court matters which should have been entered in examination in chief  this however is a discretionary power.

Drabsch v Switzerland General Insurance [1999](Misleading statement in cross-examination.)
Facts: In cross-examination a witness admitted that an answer he gave in evidence-in-chief was false  in re-examination questions going to the witnesses state of mind when he made that admission were allowed.

Held: Re-examiner is not solely limited to eliciting clarifications or giving explanations where there is an ambiguity.
•   Re-examination is allowed whenever an answer in a cross-examination would, unless explained, leave the court with an impression of the facts which could be construed unfavourably towards the party calling the witness, or which presents an incomplete or distorted account of the facts.

-   Test in Criminal Cases
•   There must be:
1. Exceptional circumstances - such as serious breach of the rule in Brown v Dunn: R v Birks
2. The prosecution could not reasonably have foreseen the exceptional circumstances: R v Chin

R v Chin (1985) (Fairness to the accused requires prosecution to present all evidence – re-examination only in exceptional circumstances.)
Facts: Choo and Chin had been charged with being knowingly concerned in the importation of heroin  part of their defence was that they did not know each other prior to their arrest.
Issue: Whether the Crown could reopen to tender evidence showing that Choo’s visa application used the phone number of Chin’s father’s business, after the defence had closed its case  no attempt was made to prove this evidence in the Crown's case in chief.

Held: Dawson J: The guiding principle is that the prosecution ought not to be permitted to split its case.
•   The prosecution must call all the evidence available to it in support of its case during the presentation of that case  if it fails to do so, it ought not to be allowed to remedy the situation by calling evidence in reply except in exceptional circumstances.
•   A case will not be exceptional where the situation ought to reasonably have been forseen by the prosecution. The relevant principle is essentially one of fairness  the prosecution must offer all its proofs during the progress of the prosecution case.
•   Although the prosecution could not have called Chin in the case against him, nor could they have called Choo, they could have called a witness from the Department of immigration to tender the application  the phone number could quite easily have been introduced during the prosecution’s case
•   Therefore the situation was not an exceptional one meaning the trial was miscarried.

-   Test in Civil Cases

Consider the interests of justice - are they better served by re-opening? Trial Judge has a discretion: Consider:

Urban Transport Authority v Nweiser (1992) (Inadvertance on Counsel’s part re-examination test.)
Facts: Nweiser’s Counsel rested case, then realised they had stuffed up and still had 2 more witnesses to call - had only just rested (very little time gap.)
•   Trial Judge had refused to allow them to re-open on ground that failure was deliberate, although mistaken, and even though there was certainly no tactical gain  Nweiser made application to reopen
Held: Clarke JA: motivation in re-opening was not "impure"  if it was a tactical decision it would have been refused.
•   The exercise of the discretion to allow an application to re-open depends essentially upon the judge’s view as to whether the interests of justice are better served by granting than refusing the application'  here all that occurred was that some time had passed between the closing of the defendant's case and the application by the defendant to call a witness.

•   Consider the following:
1. Timing (how late is it? The longer after closing statements, the less likely the application will succeed.) – here it was immediately after closing statement
2. Detriment (is there surprise, detriment, other prejudice) - was none in letting 2 additional witnesses testify - they were expected throughout to testify and were not called simply by inadvertence; there was no extra cost since there was sufficient time to hear them
3. Motive (if you fail to prove an element of your case, is it through ignorance (in which case you will probably get leave to re-open), or is there a tactical reason (much more likely to fail) - was not sandbagging (holding out the good stuff until after it cannot be answered)