9.3 Cross-Examination and Re-Examination Flashcards
Entitlement to cross-examination
Generally all witnesses are liable to be cross-examined, except witnesses called for sole purpose of producing a document who is not examined in chief.
Discretion to disallow improper questions
Questions which are inappropriate, misleading, confusing, annoying, harassing, intimidating, offensive, oppressive, or repetitive may be “improper questions” and can be disallowed by the court
Section 21 EAQ - “may disallow” [discretionary]
Section 41 EVC - “must disallow” [duty]
Rule in Browne v Dunn
In any trial – civil or criminal – if a party intends to contradict the evidence of a witness – either by way of submission to the judge or jury, or by other evidence – then the party (via their barrister) is required to put the substance of the contradictory evidence to the witness during cross-examination, so that the witness might comment on it: Browne v Dunn
[U]nless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies on inferences to be drawn from other evidence in the proceedings.
[See also Bale v Mills]
Possible consequences of non-compliance with rule:
1) If a witness is not cross-examined on a point, cross-examining counsel may be taken to accept it and may not be permitted to address in a fashion which asks the court not to accept it.
2) If the witness has not been cross-examined on a particular matter, that may be a very good reason for accepting that witness’s evidence, particularly if it is uncontradicted by other evidence.
3) The trial judge may accede to an application by counsel for the party who called the witness who was not questioned in conformity with the rule to call evidence in rebuttal or to have the witness recalled for further cross-examination.
4) A failure to comply with the rule may cause the party in default to become disentitled from relying on evidence against the witness.
5) It is possible that the jury may be discharged, or a curative direction given.
6) The court may be inclined to disregard a submission which was not tested by putting it to the person best able to deal with it.
7) If a party in breach of the rule calls evidence inconsistent with that of the witness who was not cross-examined, it may be open to infer that the inconsistent evidence was not in accordance with instructions given to counsel about how the cross-examination should proceed and should be disbelieved as a recent invention.
Cross-examination of co-accused
Co-accused are competent, but not compellable against one another (due to right to silence) (section 8)
What the first accused says may be evidence for or against the first accused, or the co-accused person calling the first accused.
First accused may be cross-examined by prosecution after they have given evidence for the co-accused, despite not giving evidence for themselves.
[Qld] When may witness be examined on (and shown proof of) a Prior Inconsistent Statement?
Section 18 EAQ
Where witness gives inconsistent testimony and does not admit such statement, “proof may be given that the witness did in fact make it up”.
However, before receipt of proof, must circumstances of the statement must be put to the witness and they asked if it did happen
Section is largely a declaration of the common law and applies only to statements by that witness, and not inconsistencies between other witnesses and other facts in issue
To be inconsistent:
(a) Must be contradictory on their face
(b) Can be inconsistent where one is a statement of fact and the other is an opinion
(c) Remains inconsistent if witness cannot remember other statement
(d) Test for inconsistency: “whether the trier of fact could reasonably find that a witness who believed the facts testified to would have been unlikely to have made the prior statement”
In CRIMINAL proceedings - if the witness admits the inconsistency, you cannot then adduce the material.
See also s 43 EAC
Previous statements in writing
Section 19 EAQ
Witness may be cross-examined as to a previous statement made in writing, without the writing being shown to the witness
However: if intended to use the written statement to contradict the witness, before the contradiction occurs the witness must be called to the specific parts of the writing
If being used as contradictory evidence, document must be tendered (otherwise no requirement) - examiner not obliged to put it into evidence unless used as a contradictory statement
See also s 44 EAC
Previous inconsistent statements admissible for truth of their contents (and exceptions to hearsay rule)
Commonwealth
Where previous statement is led for credibility purposes (see exceptions to rule against credibility evidence in s 102, at 103-110), pursuant to section 60 it becomes admissible for all purposes. Hearsay exceptions contained at sections 64(3) and 66(2) (civil and criminal)
Queensland
S 101 EAQ provides that where a PIS is proved (pursuant to ss 17, 18, or 19) or a witness’ previous statement proved for the purposes of rebutting a charge of recent fabrication, the statement is admissible as evidence of the truth of the facts stated.
Rule in Walker v Walker
If at trial a party calls for an inspection of a document held by the opponent, the party is bound to put it in evidence (provided the document was not being used to refresh memory)
Note: rule abolished by s 35 EAC
Scope of re-examination
Re-examination must be confined to matters arising out of cross-examination and new matters may only be introduced with the leave of the judge.
Purpose not limited to removing ambiguities and uncertainties - is it allowed wherever an answer in cross-examination would, unless supplemented or explained, leave the court with an impression of the facts (whether facts in issue, or facts going to credibility) capable of being construed unfavourably to the party calling the witness….and which represents a distortion or incomplete account of the truth as the witness is able to present it.
Normally not permitted to adduce fresh evidence after case closed in chief (cannot ‘split’ case). Evidence used legitimately only in rebuttal is (in theory) permissible.
