9.2 Examination-in-Chief

Question 1

Rule against narrative / rule against self-corroboration

Answer 1

A witness may not be asked in chief whether they have formally made a statement consistent with their present testimony.

This includes relying upon previous documents/statements to prove truth of their contents as it would violate hearsay rule. The rule operates independently of hearsay rule however, so also could not rely upon document to demonstrate the reliability of the witness

Question 2

Credibility evidence and Prior consistent statements in the Commonwealth Evidence Act

Answer 2

Prior consistent statements tendered only for credibility are inadmissible (section 102).

PCS may be admissible as:

s 103 - evidence adduced in cross-examination

s 106 - evidence to rebut denials

s 108 - evidence to re-establish credibility

s 108C - evidence of persons with specialised knowledge

s 110 - character of accused persons [bad character evidence only permitted if accused has led evidence of their good character]

ONCE ADMITTED, per s 60 it is admissible to prove the truth of the facts asserted.

Question 3

Commonwealth: admission of prior consistent statements as exception to hearsay rule

Answer 3

Civil - Section 64(3): PCS of a witness, tendered to prove truth of its contents, may be admissible in civil proceedings where statement is proved by the witness or persons who heard it

Section 66(2) is the criminal version, and it also requires asserted fact to be “fresh in the memory of the person who asserted it”.

Will therefore be admissible for the truth of its contents

Question 4

Qld Statutory exception to rule against prior consistent statements

Preliminary complaints in sexual offences

Answer 4

Section 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld) deal with preliminary complaints:

Evidence of how and when any preliminary complaint was made is admissible, regardless of when it was made (subject to the court’s general power to exclude evidence operating unfairly to the defendant): s 4A(2)–(3).

If the trial is by jury, the judge must not suggest that the law regards the complainant’s evidence to be more or less reliable because of the length of time before the preliminary complaint was made: s 4A(4).

That is, the trial judge must not suggest that delay in making a complaint is of itself a reason for regarding a complainant’s evidence as unreliable.

Preliminary complaint evidence goes to the credit of the complainant, but has no probative value in relation to the truth of the complaint.

Question 5

Delay in making a complaint - Longman Warning

Answer 5

Common law substantially modified by s 132BA EAQ

On judge’s initiative, or party’s application, the judge MAY give the jury a direction if satisfied that the defendant has suffered a significant forensic disadvantage because of the effects of the delay

i) mere delay does not establish significant forensic disadvantage

ii) jury must be informed of the nature of the disadvantage

iii) judge MUST NOT warn that it would be dangerous or unsafe to convict based only on the evidence of the complainant, or that their evidence ought to be scrutinised with great care

iv) direction need not be given if good reason not to do so

v) judge may only give direction on delay pursuant to s 132BA

COMPARE WITH COMMON LAW Longman Warning: where judge SHOULD say that it would be dangerous to convict on evidence alone and the jury should exercise great scrutiny

Question 6

Common law exceptions to rule against prior consistent statements (list)

Answer 6

1. Complaints in sexual cases
2. Consistent statements made contemporaneously with the events to which they refer (admitted as part of the res gestae)
3. Previous statements admitted to rebut the suggestion that a witness’s testimony was an afterthought
4. Admissibility of certain written statements (92 EAQ and 64 EAC)

Question 7

Common law exceptions to rule against prior consistent statements

1. Complaints in sexual offences

Answer 7

In a sexual offence case under common law, the earlier complaint may be used to bolster the credibility of the witness (not the truth of the complaint) if:

i. given voluntarily (and not in answer to a question that induced the answer, or which was intimidatory)

ii. given speedily after the alleged offence (or in Qld, been ‘recent’ with regard to the circumstances)

Evidence ONLY relates to credibility (by showing consistency) - it is not admissible for its truth purposes

Voluntariness: questions like “why are you crying” are okay, but “did XYZ assault you” is not

See also: Section 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld)

Question 8

Common law exceptions to rule against prior consistent statements

2. Consistent statements made contemporaneously with the events to which they refer (res gestae)

Answer 8

“Res Gestae” is a blanket statement applied to the admissibility of statements, denoted by relevance through contemporaneity - part of the story.

Typically admitted as original evidence, or as an exception to hearsay.

Credibility of a witness’ testimony may be confirmed by the narration by the witness or someone else of a statement to the effect as the witness’ evidence during the continuance of the events to which it relates

Note: s 66A of the EAC also partly gives effect to res gestae doctrine

Question 9

Common law exceptions to rule against prior consistent statements

3. Previous statements admitted to rebut suggestion a witness’s testimony was an afterthought

Answer 9

Permissible if credit of witness is impugned (ie a suggestion testimony is a subsequent construction), but must be very narrow

(a) A mere attack on the whole of a witness’s testimony is insufficient. Practically needs to be interpreted as a direct question to the effect of “when did you first invent this story?”

Windeyer J – not enough that a witness has been XXN on credit, however must their credibility may have been shaken. Must have been a clear and unequivocal imputation that the witness is not speaking from their own recollection of events, but recounting a story subsequently made up by him or for him

Note also s 101 EAQ - witness’s previous statement if proved will be evidence of facts stated

Question 10

Common law exceptions to rule against prior consistent statements

4. Admissibility of certain written statements

Answer 10

Admissibility of written authenticated statements of witnesses. In any civil proceedings, where direct oral evidence of a fact would be admissible, any statement made by a person in a document tending to establish that fact, shall (on production of the original) be admissible as evidence of that fact.

If the maker of the statement is NOT called as a witness, the statement is is received under an exception to the rule against hearsay.

Where the maker IS called, statute operates as an exception to the general prohibition on proof of witness’s previous consistent statements

See s 92 EAQ and s 64 EAC

Question 11

Unfavourable vs hostile witnesses

Answer 11

Unfavourable - a witness called by a party to prove a particular fact in issue, who fails to prove such a fact or proves an opposite fact.

Hostile - a witness who is not desirous of telling the truth at the insistence of the party calling the witness, ie, one “unwilling, if called by a party who cannot ask him leading questions, to tell the truth and the whole truth in answer to non-leading questions”.

Delineation between the two is important because rules prohibit impeaching a party’s own witness

At common law: can ask hostile witnesses leading questions and previous inconsistent statements can be put to the witness, but they cannot be asked about previous bad conduct and convictions.

DIFFERENCE?
(a) An unfavourable witness can merely be contradicted with regard to facts in issue or relevant to the issue, but cannot be cross-examined or discredited in any other way.

(b) However, a witness who is considered by the judge to be hostile may be contradicted on the issue by other witnesses and, in addition, cross-examined, asked leading questions, or even discredited, to the extent that previous statements of the witness inconsistent with the present testimony may be put in evidence by the party by whom the witness is called.

Question 12

Hostile witnesses - Statutory provisions

Answer 12

Section 17 EAQ

Party cannot impeach the credit of their own witness by producing “general evidence of bad character” but may contradict witness with other evidence including previous inconsistent statements.

Mandatory requirement: “circumstances of the supposed statement” must be mentioned to the witness and asked whether they made such a statement.

Note that under s 101: once proved by s 17, may be admissible for proof of its content under s 101

See also s 38 EAC [which is more expansive and includes unfavourable witnesses]