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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