Queensland Evidence Act

LWB 432 SARAH FYNES-CLINTON

PHASE 2 – CROSS EXAMINATION

OBJECTS OF CROSS EXAMINATION

OBJECTS OF CROSS-EXAMINATION

 To obtain evidence to support own case.  To qualify, weaken or destroy evidence in chief.  Where necessary, to attack the credit of the witness.  nb s 16 which allows questions re previous convictions of the witness.  however if the witness is the accused, s 15 must be complied with.

CROSS-EXAMINATION -V- EXAMINATION IN CHIEF:

 2 immediate differences: (1) The general prohibitions on asking leading questions - leading questions MAY be asked: McClure v Mitchell.  BUT note: despite the cross-examiner being able to ask leading questions, questions which make unadmitted assumptions may not be put.  Nor questions which misstate the effect of evidence given earlier. (2) Questions which attack a witness’s credit.

CREDIT

A witness may be asked not only as to facts in issue, or directly relevant thereto, BUT ALL questions which though otherwise irrelevant, tend to impeach his or her credit.

 Note that, in criminal cases, a trial judge may limit the prosecution in regard to its cross examination of the accused (and this ruling potentially extends to defence witnesses): R v Chin  One reason why it is not fair to the accused to be cross examined on matters (of guilt) not raised in the prosecution’s case is that, in deciding whether to give evidence or not, the accused expected only to be cross examined on the case presented by the prosecution, not entirely new matters: Biddle v The Queen

Previous Convictions:  s 16 QEA allows Counsel to cross examine a witness regarding previous convictions, and if they deny a conviction, to prove it. s 16 Witness may be questioned as to previous conviction Subject to this Act, a witness may be questioned as to whether the witness has been convicted of any indictable or other offence and upon being so questioned, if the witness either denies the fact or refuses to answer, it shall be lawful for the party so questioning to prove such conviction.

Limitations:

QEA - section 20 & 21 - seek to restrain cross-examination as to credit on remote matters or by way of questions that are scandalous or offensive

S 20 QEA – Cross Examination as to Credit

 Judicial discretion re whether or not witness compelled to answer question  The question will be disallowed if matter:  is so remote in time, or  of such nature an admission of truth wouldn’t materially affect credit of witness

TOPIC 5 & 6 – CROSS EXAMINATION PAGE 1 OF 18 LWB 432 SARAH FYNES-CLINTON

S 21 QEA – Improper Questions

 Entitles a court to disallow a question if the court considers that it is an improper question: (1)  The decision whether a question is improper allows the court to take into consideration: (2)  any mental, intellectual or physical impairment of the witness: (a)  or any other matter about the witness the court considers relevant, including age, education, level of understanding, cultural background or relationship to any party in the proceedings: (b)  In (4), improper question is defined as a question that uses inappropriate language, or is misleading, confusing, annoying, harassing, intimidating, offensive, oppressive or repetitive.  Where questions deliberately insulting, annoying or scandalous, judge has duty to forbid question.

Making an Objection:

Objection Your Honour, counsel is asking unnecessarily annoying, intimidating or repetitive questions, and they should, in my respectful submission, be disallowed pursuant to s 21 of the QEA.

s 15A QEA – Disallows questions re convictions which are remote in time 15A Questioning of witness as to certain convictions A witness in any criminal or civil proceeding shall not be asked and if asked shall not be required to answer any question tending to show that the witness has committed or been convicted of or been charged with any offence if, where the witness has been convicted of the offence--

(a) the conviction is one in relation to which a rehabilitation period is capable of running pursuant to the Criminal Law (Rehabilitation of Offenders) Act 1986; and (b) in relation to the conviction the rehabilitation period within the meaning of that Act is not running at the time of the criminal or civil proceeding; unless the permission of the court to ask the question has first been obtained, such permission to be applied for in a trial by jury in the absence of the jury.

s 15 QEA – Accused giving evidence in his/her own defence  provides for cross examination on previous convictions that aren’t the subject of the trial, only in exceptional circumstances

Admissibility:  The usual rules of admissibility apply on cross-examination, eg., the hearsay rule.

LEADING QUESTIONS

Leading questions may, in general, be asked.

But where they will not be allowed:

Mooney v James . allowance is based on the assumption that the W’s partisanship plus the circumstances that he is being Questioned by an adversary, will produce a state of mind what will protect against suggestibility . If W show bias towards the party against who he’s called, direct leading Questions may as a matter of discretion be forbidden . Judge must give his reasons for disallowing leading questions

DUTIES ON COUNSEL IN CROSS EXAMINATION

 Counsel has a duty not to pursue irrelevant or fruitless lines of cross-examination: Wakely and Bartling  But also note: the trial judge has a duty not to unduly restrict, ie must allow counsel to develop lines of examination

Wakeley and Bartling (1990) . The accuseds were charged with drug offences. . 4 police searched their house and found heroin in one of the shoes of the accused. . One of the police involved in the search died of a heroin overdose that night. . It was the subject of a ruling by the trial judge that the defence could not pursue cross examination about the death of the police man. . On appeal it was allowed because they recognized that a trial judge has to exercise a certain amount of restraint and recognise the above duty . The applicants sought special leave to appeal against their conviction on various counts relating to trafficking and possession of heroin. . Each applicant complains of the trial judge’s refusal to allow cross-examination into the death of a detective where the blood of the deceased contained opiates and the possible inference was open that he had access to illicit drugs such that the investigation he led against the accused persons may have been tainted. HELD: . A trial judge must abstain from too ready an intervention to cut off lines of cross examination . Some leeway should be allowed to counsel to perform his duty, where warranted, of testing the evidence given by an opposing witness. . Only where counsel’s discretion is not being properly exercised should the judge intervene.

R v Chin (1985) . Cross examination not confined to matters led in chief. . No reason why Crown should not lead in cross examination evidence which relates solely to its own cases. . Judge retains discretion to prevent unfair cross-examination . . Generally unfair for Crown to raise some entirely new matter affirmatively probative of guilt which hadn’t been led at committal or in chief, unless the accused had been given prior notice. . BUT there may be matters peculiarly in the knowledge of an accused which the prosecution cannot be precluded from establishing in cross-examination if the accused goes into the witness box . GIBBS CJ & WILSON J: . A cross-examiner is entitled to ask questions to establish matters relevant to issues whether or not the witness has deposed to such matters in his examination in chief (that is questions put in cross examination are not restricted to matters raised in examination in chief). . The trial judge, of course, retains his discretionary powers to ensure that the cross-examination is not unfair. . In general, it would be unfair to raise, (re: criminal cases) in cross-examination, some entirely new matter which was affirmatively probative of the guilt of the accused but which had not been the subject of evidence either at committal proceedings or in the prosecution’s case in chief, unless the accused had been given prior notice of such matter. DAWSON J: . There is no requirement that notice be given of the evidence which the prosecution intends to attempt to elicit during cross-examination and if the defence is alerted by notice to the fact that the prosecution intends to attempt to prove some matter by additional evidence, the notice will almost certainly refer to the calling of additional evidence in the prosecution case rather than during cross-examination. . Nevertheless, such a notice may be of significance in determining whether questions asked during cross- examination constitute an unfair attempt to elicit evidence for the first time at that stage. It may be sufficient to alert the defence to some matter upon which the accused or his witnesses may be questioned if they are called to give evidence. . All of these considerations, and no doubt others to which I have not adverted, will bear upon the exercise by a trial judge of his discretion to disallow cross-examination by the prosecution for the purpose of adducing evidence which could and should have been tendered during the presentation of the prosecution case. Necessarily, the discretion is not as confined, or cannot be as rigorously applied against the prosecution, as in the case of an application by the prosecution to call evidence by way of reply when only exceptional circumstances will justify the granting of the application.

Note:  ss 21L – 21S QEA regarding cross examination of protected witnesses.  s 4 Criminal Law (Sexual Offences) Act 1984 regarding improper subject matter for the cross examination of the victim of a sexual offence.

CROSS-EXAMINATION AS TO CREDIT

GENERAL RULE:

 CREDIT means that - “if what is insinuated is admitted by [the witness] that may suggest that he is not a man to be believed upon his oath - Wren v. Emmett Constructions

 McCormick (academic) has identified 5 main lines of attack to a witness’s credibility:

(1) by proving that the witness on a previous occasion has made statements inconsistent with his present testimony (2) by specific contradiction, that is by proving that some statement of fact made by the witness is not true, in that the fact is otherwise (3) by showing that the witness is biased, by reason of emotional influences such as kinship for one party or hostility to another, or motives of pecuniary interest, whether legitimate or corrupt (4) by attacking the character of the witness (5) by showing a defect of capacity in the witness to observe, remember or recount the matters testified about.

PRIOR INCONSISTENT STATEMENTS

 Previous inconsistent statements of witness (oral OR writing) may be raised & proved as of right, provided content relevant to MAIN FACTS IN ISSUE in case – s 18 QEA

Section 18 - Proof of previous inconsistent statement of witness (1) If a witness upon cross-examination as to a prior inconsistent statement made by him relative to the subject matter of the proceeding and inconsistent with the present testimony does not distinctly admit the making of the statement - proof may be given that the witness did in fact make that statement.

(2) HOWEVER, before such proof can be given, the circumstance of the statement must be mentioned to the witness & he/she must be asked whether they made such statement

REQUIREMENTS – S 18(1)

1. The PIS must be “relative” [has been interpreted to mean relevant] to the subject matter.  thus PIS that is relevant only to the credit of the witness (eg bias) is not admissible under s 18 (see exceptions to the Finality Rule later).

2. The witness must not “distinctly admit” that they made the statement - interpreted in R v Mursic.

R v Mursic . Accused charged with assaulting and setting fire to his own wife. . Wife interviewed by police after the assault. . By trial the wife had reconciled with her husband and the Crown did not call her to give evidence. . Defence counsel did call her and gave evidence favourable to the accused. . In cross examination by the crown it was put to her that she had given this statement to police which was accordance with the crown case. . She agreed that she had made a statement to the police but denied that what she told the police was true because she had been ill at the time . Held . s 18 permits proof of previous inconsistent statement put to witness upon cross examination if he ‘doesn’t distinctly admit that he has made such statement’ . Mrs M never ‘distinctly admitted’ that what was contained in the statement was what she told police. . Justice Connelly  The upshot of what she told the jury is that if ‘this or that’ appeared in the statement then she must have said it to the police; but this after all is an inference she drew from the fact that the statement was in existence rather than from a distinct admission that she made the statement

 Therefore the witness had not ‘distinctly admitted’ the statement. . Therefore as she did not distinctly admit to making the statement, it was open to the Crown to prove that she had made it. . By virtue of s 18, that statement was admissible of evidence of any fact stated therein of which oral evidence would be admissible.

PROVISO – S 18(2)

 Before proving the PIS, Counsel must draw sufficient circumstances of the making of the statement to the witness and must ask if they made the statement: s 18(2)

SECTION 19 – WRITTEN STATEMENTS

 If a PIS is properly proved under s 18, it is just as valuable whether it is oral or written.  There is a further provision that applies when a PIS that is reduced to writing is to be used in cross examination.  The better view is that s 19 applies both to the hostile witness and to cross examination.

 s 19(1) provides that a witness may be cross examined as to their written PIS, relative to the subject matter of the proceedings, without the statement having to be shown to the witness:  Designed to get around the rule in Queen Caroline’s case:  required that if you wished to use a PIS to cross examine a witness, you had to produce the document, show it to the witness, read it into the record and tender it as part of your case, thereby alerting the witness in advance.

BUT  s 19(1A) provides that where it is intended to contradict the witness by the written PIS, before that contradictory proof can be given, those parts of the writing which are to be used to contradict the witness, must be drawn to the attention of the witness (manifestation of rule in Browne v Dunn).

 s 19(2) - Court may order at any time the statement be produced to court.

Savanoff v Re-car Pty Ltd . The Qld Court of Appeal looked at the circumstances where a witness was cross examined by a written PIS. . It was an application for workers’ compensation, and the allegation had been made that the injury had been sustained in a manner differently to that alleged by them that made them eligible for workers’ compensation. . There were a number of written statements that contradicted the witnesses evidence in chief. Held: . That, provided s 19 was otherwise complied with, it was unnecessary for cross-examining counsel to allow a witness the opportunity to explain any inconsistencies between his or her testimony and statements introduced via QEA s 18 or s 19.  therefore, counsel can just cross examine and demonstrate that there are inconsistencies between the PIS and the testimony.

EVIDENTIAL EFFECT:

 Where a PIS relative to the subject matter is proven at common law, all it does is undermine the credibility of the witness – HOWEVER:

 Section 101 QEA  Where the PIS is proved by s 18, s 101 makes the contents of the PIS evidence of the truth of their contents.  note: it is ONLY AVAILABLE as truth of the statement IF it goes in via section 18 - if NOT then it can only go to the credit of the witness.  the PIS must be relevant to an issue in trial.

 If the statement is denied OR not distinctly admitted:

 then it may be proved via section 18 AND then becomes evidence via section 101

WEIGHT

 Section 102  When considering weight of statement, 2 specific issues to be taken into account:  contemporaneity with events referred to  motive by the maker to misrepresent the facts

 Furthermore, fact the previous statement was not under oath, means court testimony should carry more weight.

THE RULE IN BROWNE V DUNN (1829) 57 ER 909

GENERAL RULE:

 Any matter upon which it is proposed to contradict the evidence-in-chief given by the witness must normally be put to him or her so that he or she may have an opportunity of explaining the contradiction.  Failure to do this may be held to imply acceptance of the evidence-in-chief.  ie: where it is intended to suggest that a witness is not speaking the truth on a particular matter, his attention should be drawn to what is going to be suggested about it, so he may have an opportunity of explanation

 It should be made clear, prior to final addresses and by way of cross-examination or otherwise, not only that the evidence of the witness is to be challenged but also how it is to be challenged.

Rationale from Allied Pastoral Holdings v FCT

1. It gives the witness the opportunity to deny the challenge on oath, to show his mettle under attack (so to speak), although this may often be of little value; 2. More significantly, it gives the party calling the witness the opportunity to call corroborative evidence which in the absence of such a challenge is unlikely to have been called; 3. It gives the witness the opportunity both to explain or to qualify his own evidence in the light of the contradiction of which warning has been given and also, if he can, to explain or to qualify the other evidence upon which the challenge is to be based.

 The rule is one based on fairness to both the witness and the party calling that witness.  Although most cases either state or imply that the rule is directed to challenging an opponent witness’s version of the facts, it is suggested that the rule equally applies to an attack on an opponent witness’s credit: see R v Costi (1987) 48 SASR 269 at 270

Allied Pastoral Holdings v FCT . Tax case involving s 26(a) of the 1936 Act . FCT was seeking to make out a case that directors of a company were liable for taxation at a higher rate than they had paid on income arising from the sale of a property acquired for the purpose of making a profit by sale. . There was a seven year gap between the time purchased and the date that the property was sold. . Counsel for FCT sought to argue before the trial judge that he should draw inferences from all of the evidence which would lead to the disbelieving of the directors about the way in which the development had taken place:  ie the inference should be drawn that they had intentionally developed the property in a different way to that deposed to by them, making it liable to higher tax. . The difficulty for Counsel for FCT was that during cross examination of the directors, the set of inferences that was leading to a disbelief of their evidence wasn’t put to the directors – ie they weren’t warned that later the FCT would argue that they should be disbelieved because of the inferences that should be drawn. Held: . HUNT J: Reasons why it should be made clear, prior to final addresses and by way of cross-examination or otherwise, not only that the evidence of the witness is to be challenged but also how it is to be challenged.  Firstly, it gives the witness the opportunity to deny the challenge on oath, to show his mettle under attack .

 Secondly, it gives the party calling the witness the opportunity to call corroborative evidence which in the absence of such a challenge is unlikely to have been called.  Thirdly, it gives the witness the opportunity both to explain or to qualify his own evidence in the light of the contradiction of which warning has been given and also, if he can, to explain or to qualify the other evidence upon which the challenge is to be based . . Because the FCT hadn’t put the inferences to the directors, the trial judge refused to draw the inferences and believed the directors evidence. . Therefore the FCT lost the case.

HOW IS THE RULE BREACHED?

1. Counsel not cross-examining the witness at all or not putting those particular parts of counsel’s case which contradict or challenge to the witness OR

2. Calling other evidence which contradicts the evidence outright OR inviting the tribunal of fact to either reject the witness’ evidence or draw inferences contrary to their evidence WITHOUT FIRST PUTTING IT TO THE WITNESS

 However it would seem that a party is not in breach of the rule by failing to cross-examine where the witness’s evidence-in-chief is ‘‘incredible or romancing’’ or contains its own seeds of doubt; as Bray CJ said in R v Byczko (No 2) (1977) 17 SASR 460 (at 465)

 Further, if a witness claims to have no recollection of an event, it is not a breach of Browne v Dunn to fail to take the witness through the details of the event: Trade Practices Commission v Mobil Oil Australia Ltd (1984) 55 ALR 527 at 540.

 The rule MAY be breached if the cross-examiner only broadly indicates to the witness that her or his evidence is not accepted, rather than challenging the specific parts of the witness’s evidence which are not accepted and putting the counter version to the witness: per Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 26 (But note that Thomas v Van Den Yssel (1976) 14 SASR 205; suggest that the former sufficiently complies with the rule).

APPLICATION OF THE RULE

 The rule applies to cross examining Counsel in both civil and criminal trials.

CONSEQUENCES IF THE RULE IS BREACHED:

1. The other side may call rebuttal evidence:  The judge may decide on application by the party to give leave to an opponent to put witness back in witness box - net result = embarrassment - but also if it is late in the trial and there is a jury, it could be the last witness the jury hears (despite the general rule against a party splitting its case): R v Kellick

 In Payless Supabarn, the court said the trial judge may ‘‘require the relevant witness to be recalled for further cross-examination before allowing the contrary evidence to be given’’ (at 556).

2. Recalling of witnesses who have not been warned of the refutation or contradiction.

3. Denial of the offending party’s right to challenge the witness’s evidence in their address:  Breaching Counsel may be denied the opportunity to argue before the jury that the witness should not be relied upon; OR  Breaching counsel may be denied the opportunity to call the contradictory evidence at all: Payless Supabarn; and MacPherson v The Queen (1981) 147 CLR 512 at 532

 In Allied Pastoral Co case Hunt J said (at 850): ‘‘The consequence of non-compliance does not, of course, mean that I should . . . disbelieve the evidence led on behalf of the [party in breach]. But it would in many cases be wrong, unreasonable or even perverse for a tribunal of fact to reject evidence upon which there has been no relevant cross-examination.’’

4. Judge may abort the trial altogether.

5. Judge may give a strong warning to the tribunal of fact (if jury).

6. Denial of the opportunity to call contradicting evidence.  The judge ‘‘may decline to allow the party in default to address upon a particular subject upon which the opposing party was not cross-examined’’: Payless Supabarn (at 556)

During an address by opposing Counsel, he sought to convince the judge to draw an inference that evidence is a lie.

I object to the submissions of my learned friend that you should draw such inferences against my clients. That suggestion was never put at any stage of the witness’ evidence in order for them to refute or deal with it.

FINALITY RULE: FINALITY OF ANSWERS TO COLLATERAL QUESTIONS

 This rule allows counsel to cross examine on almost any matter that affects the witness’ credit as well as any matter that goes to issues that are relevant to the issues in the case, or are indirectly relevant to the issues in the case.  However, where a witness is cross examined on something that is a collateral issue (not directly or indirectly relevant to the issues in the trial), counsel cannot prove that what the witness had said is untrue.

GENERAL RULE - COMMON LAW

 Where cross examination goes to collateral issues and not issues in the trial, counsel cannot disprove the witness’s answers, and those answers must be treated as final.  ie, they cannot lead evidence to contradict the witness: Palmer v The Queen.

 This does not mean that the cross-examiner cannot ask the same question more than once in an effort to get the witness to change an answer: Western Australia v Watson [1988]  Rationale: it stops the trial going on indefinitely: Hitchcock

WHAT ARE COLLATERAL ISSUES?

Facts in Issue:  The main facts in issue are all those facts which the prosecution/plaintiff in a criminal/civil case is required by substantive law to prove in order to succeed.  Eg In a criminal case such as murder all the elements of an offence are main facts in issue. (unlawful killing causation, and Intention)  Eg In a civil case such as negligence all the elements such as duty, breach and damage must be established.  WILL INCLUDE any further facts that the accused/defendant must prove in order to establish a legal defence or excuse.  This could include such things as diminished responsibility (s 304A) or self defence(s.271).  A fact may be relevant indirectly to a fact in issue eg: Goldsmith v Sandilands & Ors [2002] HCA 31, 8 August 2002

Goldsmith v Sandilands & Ors . The plaintiff sought to recover damages from the defendant arising out of a motor vehicle accident. . The main facts in issue are:  that the defendant was in charge of a motor vehicle in which the plaintiff was a passenger;  in those circumstances, the defendant owned a duty of care to the plaintiff;  the manner of driving the vehicle was such that the defendant breached the duty of care;  the consequence of that breach was that damages flowed in the form of a back injury to the plaintiff. . The defence sought to prove that the plaintiff had not injured his back in the accident, but playing indoor cricket. . The way that the defendant sought to prove this was by relying on an admission made by the plaintiff to the defendant shortly after the indoor cricket match was played. . Gleeson CJ:  a fact in issue was whether the appellant had injured his back in the car accident.  a fact relevant to the fact in issue was whether the appellant had injured his back playing indoor cricket.

Collateral Facts/Issues:  A-G v Hitchcock: “If a fact is a matter which is so connected with the issues that you would be able to give it in evidence, then it is a matter on which you may contradict a witness.”  Therefore, if something is not so connected with the issues then you cannot contradict the witness’ answer on that issue.

 Collateral facts are those affecting:  the credibility of a witness,  those relating to whether certain types of evidence can be received (admissibility); and  those affecting judicial discretion.

 It is difficult to determine whether a fact is collateral:  the High Court has disagreed in its judgements.  has been described as a rule of convenience, not one of principle.  and is therefore to be regarded as a flexible standard rather than a fixed rule of law.

 “ collateral issues” - are those which could not have been elicited in evidence in chief from the witness - Piddington v. Bennett & Woods; R v. Hadlow  collateral issues - only relevance is credit of witness.

Piddington v Bennett & Wood Pty Ltd . Civil action arising out of a road accident. . Plaintiff claimed that he had been injured by the defendant at Martin Place . . Plaintiff called a witness who said that he was in Martin Place and was in a position to observe the defendant’s vehicle come around the corner and hit the plaintiff. . Witness was cross examined by counsel and asked why he had been standing there. . Witness replied that he had either been to, or was on his way to, the bank to either withdraw or deposit money. . Defence sought leave to call the bank manager to prove that no deposits or withdrawals had been made on that account. . The question that arose: Could Counsel contradict the witness by other evidence because it was so connected with the facts in issue that it wasn’t a collateral issue, or was it simply something that so affect the credit of the witness that it was only collateral? Held (3/2 majority) . Whether or not the witness had gone to the bank didn’t rationally affect the question of whether he could have been in Martin Place to see the accident, therefore proving that he hadn’t been to the bank only affected his credit as a witness – a collateral issue. . The reason given by a witness (who was an eyewitness) as to why they were in the vicinity (i.e. to do some banking) was a matter that went to his credit only and therefore could not be refuted. This was despite the unanimous finding by the Court that the witness’ presence was an ISSUE in the case.

Latham CJ (in dissent): . When a witness describes himself as an eyewitness of events constituting the facts which are in issue, his presence and capacity to observe those events are facts relevant to the facts in issue. . So that if it was put to the witness that he had told the bank manager on some other date that on the day of the accident he was in hospital (having minor surgery), that would be relevant to a fact in issue – namely his capacity to observe the incident at all. This would not be a collateral issue, but would be so connected with the issues that the witness could be disproved by other evidence. . Or if it could be demonstrated that his eyesight was so defective that it was impossible for him to observe the incident on the day in question – if he denied that in cross examination, proof in contradiction of his answer could be given, because it would be so connected with the issues as to be relevant to a fact in issue.

Hadlow . It was important to demonstrate that the sheets that had vomit from the deceased child on them and were found at a dump in Roma, had been in the accused’s house in Roma. . The daughter of the accused gave evidence for the Crown that she had bought them in Longreach in 1986, then used them on a station where she was working, before she took them to Toowoomba in 1987, where the accused was residing, and left them there. . She said that she later saw them in the accused’s house in Roma. . There was a ruling by the trial judge that the question of whether or not the daughter had used the sheets on the station was simply a collateral issue which went to the credit of the witness and didn’t prove or disprove whether she had given the sheets to the accused and had seen them in his house at Roma. . The Qld Court of Appeal upheld the judge’s ruling that it was a collateral issue. Whether or not it could be proven that she used the sheets on the station, she still may have given them to the accused and seen them in his house.

Wakeley and Bartling . Police raided a flat and found heroin in the shoe of the accused. . That night, one of those police dies from an overdose. . Defence Counsel sought to examine the other officers who had raided the room to show that the deceased police officer had dies of a heroin overdose. . If the officer who had ingested the heroin and had been cross examined and had denied that fact – would it have been a collateral issue re: his credit? . If it was collateral, other evidence contradicting the evidence couldn’t be lead, and the defence couldn’t cross examine the other officers seeking to establish the ingestion of heroin. . Therefore where the officer is deceased, if it is a collateral issue, the other officers cannot be cross examined about that matter. . However, the High Court took the view that the cross examination didn’t just go to the collateral issue of the credit of the officer, but had relevance to the facts in issue of whether the accused had heroin in his possession on the night in question. . That line of cross examination could have established a connection between the heroin ingested by the officer and the heroin found in the shoe in the room, or could have thrown light on the general conduct of the officers – ie reliability of the investigation. . Therefore, it was so connected with the issue of whether the accused was in possession of the heroin that it was not simply a collateral issue, and cross examination of the other officers was admissible.

Goldsmith v Sandilands & Ors . Although the question of whether the plaintiff had made an admission to the defendant after the indoor cricket match was clearly admissible and was something on which the plaintiff could be contradicted by other evidence, the issue as to precisely where the cricket match took place was raised – there was confusion about where it was. . The plaintiff agreed that he may have played cricket on the relevant night. . Defence sought to call t he defendant to given evidence of the location of the actual location of the cricket. . He was cross examined by the plaintiff’s counsel, who sought to call other evidence to show that the evidence re: the location given by the defendant was incorrect. . Majority of the High Court held that an error as to the location of the cricket by the defendant was simply a collateral issue affecting his credit, and something upon which he couldn’t be contradicted because the plaintiff agreed that he had probably played cricket on the night – which was relevant to a fact in issue, ie whether he had made an admission that while playing cricket, he had injured his back.

 The cases of Goldsmith v Sandilands and Piddington v Bennett & Wood demonstrate, by the dissenting judgements, that the call of whether something is a collateral issue, or something that is so connected with the issues that it may be proved in evidence in contradiction of a witness is not easily made.

Goldsmith allows us to illustrate the taking of an objection to the leading of contradicting evidence on a collateral issue. Suppose that you were defence Counsel when plaintiff’s Counsel sought to lead evidence on the exact location of the cricket house.

Your Honour, I object to this evidence. It relates to a collateral matter of credit only, and my learned friend cannot lead evidence to refute the answer given by my client.

EXCEPTIONS

COMMON LAW

 There are 5 well established common law exceptions as to the finality of matters going only to credit: McHugh J – Goldsmith v Sandilands. (1) prior convictions of the witness; (2) prior inconsistent statements of the witness; (3) bias, partiality or interest of the witness; (4) giving evidence from a corrupt or wrong motive (related to bias); (5) the physical & mental unreliability of the witness; or (6) that the witness cannot be believed upon his/her oath because they are notorious liars.

 Also includes the opportunity to prove a prior consistent statement of your own witness where they have been the subject of an allegation of recent reconstruction or invention.

EXCEPTION 1: PRIOR CONVICTIONS OF THE WITNESS

COMMON LAW

 The exception is only relevant to cross-examination of a witness who is not a party to criminal proceedings.  A witness can be cross examined as to previous convictions if they deny it.  At common law a witness could not be cross-examined as to every prior conviction, but only those which weakened ‘‘his character or trustworthiness as a witness of truth’’: Bugg v Day  Bugg v Day - this meant that traffic offences cannot often fulfil this condition.  a witness CANNOT be cross-examined as to an acquittal

QUEENSLAND STATUTORY POSITION:

 Whether a witness has any previous convictions is a collateral issue.

 s 16 QEA enables you to ask witness whether they have any previous convictions.  s15(2) QEA provides that in a criminal trial the accused cannot be asked a question that tends to show that they have committed or been charged with a separate offence to the one they are being tried for or are of bad character unless the accused has given evidence of the person’s good character (note there are other exceptions to the general rule).  s 15A QEA provides that in a criminal or civil trial a witness does not need to answer any question tending to show that they have committed, been convicted or been charged with any offence where the witness has been convicted of an offence in relation to which a rehabilitation period is capable of running under the Criminal Law (Rehab of Offenders) Act unless permitted by the Court.

 s 15A provides that a witness shall not be asked about a spent conviction (which is defined as, one more than ten years old in the case of an adult, and five years in the case of a child).  Even in the absence of a specific provision, a court has a general statutory discretion to reject cross- examination as to a matter ‘‘so remote in time ...[as] would not materially affect’’ credit: R v Robinson (unreported, NSW CCA, 24 June 1999).

 ss 53-54 QEA provides for how convictions may be proved.

16 Witness may be questioned as to previous conviction Subject to this Act, a witness may be questioned as to whether the witness has been convicted of any indictable or other offence and upon being so questioned, if the witness either denies the fact or refuses to answer, it shall be lawful for the party so questioning to prove such conviction. s 53 Proof of judicial proceedings (1) Where it is sought to prove any of the following matters— (a) a judgment, decree, rule, conviction, acquittal, sentence or other order, process, act or decision of any court; (b) an affidavit, pleading, will, codicil, indictment or other legal document filed, deposited or presented in any court; (c) the pendency or existence at any time before any court of any proceeding;

evidence of such matter and, as the case may be, of any particulars relating thereto may be given by the production of—

(d) the original of the order, process, act, decision or document; or (e) a document proved to be an examined copy of the order, process, act, decision or document; or (f) a document purporting to be a copy of the order, process, act, decision or document and to be sealed with the seal of the court; or (g) a certificate showing such matter and such particulars and purporting to be under the hand of— (i) a registrar of the court; or (ii) a person having the custody of the records or documents of the court; or (iii) any other proper officer of the court; or (iv) a deputy of such registrar, person or officer.

(2) In this section—

“court” means any court of Queensland, of the Commonwealth or of any other State or Territory. s 54 Proof of identity of a person convicted (1) An affidavit purporting to be made by a fingerprint expert who is a member of the police force of Queensland or of the Commonwealth or of any other State or Territory and in the approved form shall be admissible in evidence for the purpose of proving the identity of any person alleged to have been convicted in Queensland, in the Commonwealth or in the other State or Territory of any offence.

(2) Any such affidavit shall be evidence that the person, a copy of whose fingerprints is exhibited to such affidavit— (a) is the person who, in any document exhibited to such affidavit and purporting to be a certificate of conviction or certified copy of such conviction, is referred to as having been convicted; and (b) has been convicted of the offences mentioned in such affidavit.

EXCEPTION 2: BIAS

COMMON LAW:  such evidence is admissible if it would tend to show that the witness was biased or partial in relation to the parties or cause - R v. Umanski  may call independent evidence which suggests that they are biased.  The main problem is in determining what amounts to an allegation of bias or interest.

WHAT AMOUNTS TO AN ALLEGATION OF BIAS?  an allegation showing motive for giving false evidence: R v Umanski

 examples: denial by the witness that she was the accused’s mistress

Umanski . on a charge of incest. . said she was going to give evidence on this matter unless he paid her his share on the property. . In cross examination it was put to her that H had played around with the child and that she would give H up to which she answered NO . Then she answered yes to being asked whether if H sold the property and gave her 2/3 she would say nothing

EXCEPTION 3: HAS MADE A PRIOR INCONSISTENT STATEMENT

COMMON LAW  cross-examination on prior inconsistent statements made by the witness is now wholly regulated by statute

QUEENSLAND EVIDENCE ACT

 Section 18(1) if a witness upon cross-examination as to a prior inconsistent statement made by him (in relation to the subject of the proceedings) and does not distinctly admit the making of the prior inconsistent statement - proof may be given that the witness did in fact make that statement.

 BUT NOTE the PROVISO – s 18(2) the circumstance of the statement must be mentioned to the witness & he/she must be asked whether they made such statement before proof can be given that the witness did make the prior inconsistent statement

 “relative” - has been interpreted to mean relevant to the subject matter  “Does not distinctly admit” - interpreted in R v. Mursic

 When cross-examining an opponent’s witness, the cross-examiner may as of right, put to her or him a prior inconsistent statement allegedly made by the witness and then, if the witness does not admit making it (the witness need not go so far as to deny making it).  Then the cross-examiner may independently prove the making of the statement by the witness;  Cross-examination of an opponent’s witness as to a prior inconsistent statement is limited to statements relating to a fact (issue) in the case.

 In the case of the party’s own witness, none of this can be done except with the leave of the court (and this would only be given to enable the party to conduct a voir dire for the purpose of determining hostility; or at the end of the voir dire if the court had ruled the witness to be hostile).

R v Mursic . Accused charged with violence against own wife. . Wife interviewed by police after the assault. . By trial the wife had reconciled with her husband and the Crown did not call her to give evidence. . Defence counsel did call her and gave evidence favourable to the accused. . In cross examination by the crown it was put to her that she had given this statement to police which was accordance with the crown case. . She agreed that she had made a statement to the police but denied that what she told the police was true because she had been ill at the time. . CONNOLLY J: She only admitted she made the statement because it appeared in the statement she gave so she said that it must have been what was said to police but it was only an inference.  Took the view that she did not distinctly admit to making the statement as she only inferred she made it  Therefore the crown were by virtue of section 18 proving the statement as the witness had not distinctly admitted having made the prior inconsistent statement. . That unlike the old common law position, section 101 of the Evidence Act provided that where a contradictory statement is proved by virtue of s.18 the statement is admissible as evidence of any fact in the statement (provided the contents of the statement would be admissible if given orally)

 NOTE: section 19 QEA - re cross examination on written statements - the witness can be cross examined about a previous written statement without having to be shown to the witness.

Savanoff v Re-car Pty Ltd . it was held that cross-examining counsel is not obliged to allow a witness the opportunity to explain any inconsistencies between his or her testimony and statements introduced via QEA s 18 or s 19. . This is available in re-examination

Evidential Effect:

 s 101 QEA - the statement is admissible - this alters the common law  note: it is only available as truth of the statement IF it goes in via section 18 - if NOT then it can only go to the credit of the witness  the PIS must be relevant to an issue in trial

If the statement is denied OR not distinctly admitted:  then it may be proved via section 18 AND then becomes evidence via section 101.

Weight: QEA - section 102

102 Weight to be attached to evidence In estimating the weight (if any) to be attached to a statement rendered admissible as evidence by this part, regard shall be had to all the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of the statement, including—

(a) the question whether or not the statement was made, or the information recorded in it was supplied, contemporaneously with the occurrence or existence of the facts to which the statement or information relates; and

(b) the question whether or not the maker of the statement, or the supplier of the information recorded in it, had any incentive to conceal or misrepresent the facts.

EXCEPTION 4: THE WITNESS’S BAD CHARACTER - COMMON LAW ONLY

EXCEPTION 5: THE PHYSICAL OR MENTAL UNRELIABILITY OF THE WITNESS

Toohey v Metropolitan Police Commissioner [1965] AC 595 . On a charge of assault with intent to rob, medical evidence of the complainant’s proneness to hysteria was rejected. . The Court of Criminal Appeal affirmed the conviction on the authority of R v Gunewardene [1951] 2 KB 600, and the accused then appealed to the House of Lords. LORD PEARCE (with whom LORDS REID,MORRIS,HODSON and DONOVAN agreed): [at 608-609] . . . . When a witness through physical (in which I include mental) disease or abnormality is not capable of giving a true or reliable account to the jury, it must surely be allowable for medical science to reveal this vital hidden fact to them. . It must also be allowable to call medical evidence of mental illness which makes a witness incapable of giving reliable evidence, whether through the existence of delusions or otherwise. . Medical evidence is admissible to show that a witness suffers from some disease or defect or abnormality of mind that affects the reliability of his evidence. Such evidence is not confined to a general opinion of the unreliability of the witness but may give all the matters necessary to show, not only the foundation of and reasons for the diagnosis, but also the extent to which the credibility of the witness is affected.

 If the evidence related to the witness’s condition at the time of the event, then the matter may well go to an issue in the case: like in Toohey.  If however the condition was only relevant to the witness’s condition at the time of the trial, then it might only go to credit (credibility).  Toohey was recently approved by the High Court in Farrell v The Queen (1998) 194 CLR 286, which indicated the evidence was admissible if it was relevant to the reliability of the witness’s evidence.

CROSS-EXAMINATION ON DOCUMENTS

 Recall the rules on refreshment of memory: King v Bryant  eg must produce the document if the memory is not revived. Rule is a condition precedent to the admissibility of the oral evidence.

 Documents that are produced to the court are not necessarily tendered to the court in evidence:  they are simply used by the witness to refresh their memory; and  can be used by counsel for the other side to cross examine.

GENERAL RULE: WALKER V WALKER

“Calling for documents”:  When a cross-examiner calls for and is given and reads a document referred to by the other party's witness, opposing Counsel can force the cross-examiner to tender that document as part of his or her evidence: Walker v Walker  When the document is tendered, it is tendered in the case of the party who called for it.  This has serious consequences for a party who doesn’t wish to go into evidence – may affect right of last reply in the trial.  Once you call for the document and it is forced into evidence against you, what it contains is admissible even though it would otherwise be inadmissible.

Walker v Walker . Matrimonial dispute. . Counsel for the husband called for a document which was a letter containing inadmissible hearsay evidence about the husband’s financial position which was detrimental to his case. . Once he called for that document, and it was produced to him, Counsel for the wife was in a position to force the tender of that document. . It then became part of the husband’s case even though it was detrimental to it. . Result of that was:  now more evidence about H income; and  if H was answering W’s case then he would have lost the right of last say because the document would have been used against him.

EXCEPTIONS:

 You can call for a document that has been used by an opposing party’s witness to refresh memory (whether inside or outside of court) without invoking the rule in Walker v Walker: Kingston

Kingston . Police officer had refreshed his memory from a document which sufficiently revived his recollection. . He came to court and gave evidence of conversations that constituted admissions by K. . There was a call for the production of the notes that he had used to refresh his memory out of court, and he refused to produce them. . Court of Appeal held that production of the document can be forced, and it can then be used without invoking the rule in Walker v Walker which requires you to put the document into evidence in your own case. . If in court could call, look at and cross-examine on it. . Power to order its production under section 19

 Can inspect the document used to refresh memory without invoking Walker.  Can cross examine on the document used to refresh memory without putting it into evidence WITHIN LIMITS!  Cannot cross examine outside the parts of the documents used to refresh memory: McGregor  Rationale: to prevent distortion by counsel in cross examination (McPherson J).  ensures fairness to the witness and a fair opportunity for the tribunal of fact to know what the status of the document used in cross examination is.

R v McGregor

. M, a police officer, was charged with armed robbery. . He telephoned an escort agency and arranged for a sex worker to come to his premises. . When he telephoned, the woman made notes on piece of paper: name, address and description of caller’s house. . She went to the premises and provided services, payment was made by bankcard, woman checked the card and gave it back. . The man produced a handgun and demanded the return of the bankcard slip. . The woman returned to the escort agency and told her pimp. . The pimp made notes about the person’s description on the back of the note with the name and address etc. . He gave evidence and used the front of the paper to refresh his memory about the address and phone number. . Defence counsel called for the document, inspected it and questioned on it. During cross examination of the pimp, defence asked that he turn the document over and refresh his memory re: notes about description to attempt to show that it was a different person to the accused. . When that happened, defence counsel invoked a similar rule to that in Walker v Walker. . The rule requires that if you call for a document used to refresh memory and cross examine outside the parts used, you can be forced to tender the document as evidence in your own case. McPHERSON J: . Said that you can only cross examine on those documents for refreshing memory and if you go outside those parts for refreshing memory then you must tender it. . Disadvantageous to M as when the document went into evidence it had his name, address and telephone number on it, proved he had a bankcard - all damaging parts along with the good go into evidence & the jury would see this.

THE RULE IN QUEEN’S CASE:

COMMON LAW

 The rule in the Queen Caroline’s case required a cross-examiner, before cross-examining on a document, to hand the document to the witness and to read out the document in court.

 A witness may only be cross-examined regarding content of a document if:  The document is shown to the witness;  The witness admits they have read the document or are the author of the document;  The document is read to the court (by witness or bailiff).

Difficulty with this rule:  The hearsay rule - difficult matter for jurors to put it out of their minds;  The WHOLE document must be read - therefore a disincentive to read whole if some of that document could be harmful;  The cross-examiner must tender whole document.

EXCEPTION:

QEA – S 19

 Alters the rule in Queen’s case where the document is that of the witness:  eg: the document is made, or verified and adopted by the witness.  BUT if the document is NOT that of the witness, then it is inadmissible.

 s 19(1) - the rule in Queens case DOES NOT apply to:  statements in writing made (or verified and adopted) by the witness;  that are relevant to a main fact in issue.

 s 19(1A):  However, if it is intended to contradict the witness by the writing the attention of the witness must before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purposes of so contradicting the witness  note that the witness doesn’t have to be provided with an opportunity to explain the contradictions: Savanoff v Re-car

 A court may at any time during the hearing of a proceeding direct that the writing containing a statement referred to in subsection (1) be produced to the court and the court may make such use in the proceeding of the writing as the court thinks fit

 s 19(2)  the court may order production of the document anyway, and may use the document as evidence even if not tendered;  would require exceptional circumstances for (2) to be invoked;  where a PIS is used to cross examine, which has left the evidence in a clouded state, and it is important for the jury to see the whole document to make sense of it, the court can use s 19(2) to compel production of the document to the court and to compel its tender in evidence, and in exceptional circumstance, the court itself can put the document into evidence: Savanoff v Re-car

Savanoff v Re-car . Action for recover of workers’ compensation payments . Defendant claimed that he had injured his back when unloading a motor for a Volvo plant, in circumstances where his injury would have given rise to workers’ compensation. . He was cross examined about 3 different documents that he either wrote, or signed, and there was no opportunity given to him to explain the contradiction between the statements and his evidence in chief. . It was argued that the opportunity must be given, even under s 19. . McPherson: . Made it clear that in order to satisfy that rule before you can give contradictory proof, it is necessary to draw the witness’ attention to the parts of the writing which would be used to contradict them, but don’t have to give them an opportunity to explain the contradictions therein.

IF NOT THE WITNESS’ DOCUMENT:

If the document is NOT that of the witness, then it is inadmissible:  Can’t rely on s 19;  Can’t prove the document through them;  But can still use it to a limited extent.  another rule in Queen’s case can be used.

 Example:  Witness has described in evidence in chief a road accident on the SE freeway in an action for negligence.  The accident was described in detail by a report who saw important things about the aftermath and wrote about them in an article.  The article is not the document of the witness being cross examined.

 All you can do is put the document in the hands of the witness, tell them not to reveal the contents or what the document is, ask them to read the document and ask them if they still adhere to their testimony:  If they don’t change their testimony, the document remains inadmissible.  Contradictory parts cannot be read into the record because it is not the witness’ document.

COMPELLING PRODUCTION:

 s 19 QEA allows “calling” for PIS and the court can compel production of a document referred to by its author in the witness box to the cross examiner: See R v Kingston

Kingston . K spoken to by police officers at his car just after he threw plastic bag containing a dangerous drug . conversation at this time which could be construed that it was K’s bag - admission . went to the police station and made a formal statement and K signed it . This contained no admission . Evidence that contained the conversation at the car (taped by the police) ha been destroyed however the conversation was embedded in this statement . counsel could safely call cross-examine and tender it

. if in court could call, look at and cross-examine on it . power to order its production under section 19

 See also s74 of the Common Law Practice Act 1867 (Qld) regarding production of documents.  NOTE: s 19 only applies to statements “relative to the subject matter”. So again the common law rules would continue to apply to collateral matters in a statement.

TOPIC 5 & 6 – CROSS EXAMINATION PAGE 18 OF 18