Unfavourable Witnesses

Question 1

What are the 2 fundamental propositions in relation to Unfavourable Witnesses?

Answer 1

1. The prosecutor has a positive responsibility to put before the court all material witnesses - both inculpatory and exculpatory.
2. All evidence should be properly tested (Browne v Dunn, grapple with issues, cross examine)

Question 2

Whitehorn v R [1983] found what?

Answer 2

The failure of the prosecution to call the child as a witness or “proffer a satisfactory explanation for not doing so”, amounted to the denial to the appellant of a fair trial, and to deny a fair trial constitutes a miscarriage of justice.

Further: “All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of events upon which the prosecution is based”. However, a prosecutor is not bound to call a witness, even an eye-witness, whose evidence he judges to be UNRELIABLE, UNTRUSTWORTHY, or OTHERWISE INCAPABLE OF BELIEF”… and if the number of witnesses available for the proof of some matter is such that in the circumstances it would be unnecessarily repetitious to call them all, then a selection may be made.

Question 3

What is the principal of Whitehorn?

Answer 3

Must call the evidence or doing so may constitute a miscarriage of justice.

Question 4

What is an exception to having to call every single witness as found in the case of Whitehorn v R?

Answer 4

“It would be unnecessarily repetitious to call them all, then a selection may be made”.

Question 5

What is another reason as per Whitehall v R for a prosecutor not being bound to call a witness?

Answer 5

“Even an eye-witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief.

Question 6

The principal of calling witnesses is to call everyone, unless? (Cite authority)

Answer 6

• unreliable
• untrustworthy
• incapable of belief
• unnecessarily repetitious

Whitehorn v R

Question 7

What principle did Apostilides find in relation to not calling a particular witness.

Answer 7

“Insufficient to justify”

Question 8

If you have legitimate reasons, you should make them known to the court so that:

Answer 8

• so that an inappropriate inference against the prosecutor is not drawn (Jones v Dunkel)
• to avert a possible miscarriage of justice.

Question 9

What were the findings in the case Jones v Dunkel?

Answer 9

No longer good law, however the principle is that if you don’t call a witness in a case, the inference is that the witness wasn’t called because the evidence would not have assisted the Crown.

“Where a witness is a person who, in the ordinary course, you would expect the Crown to call, and the Crown offers no satisfactory explanation for its election not to call that witness, the jury is entitled to draw the inference that his or her evidence would not have assisted the Crown case”.

Question 10

Section 38 gives three grounds to challenge a witness’ evidence in chief. What are they?

Answer 10

38(1)(a): unfavourable evidence
38(1)(b): Witness not making a genuine attempt to give evidence, or
38(1)(c): Prior inconsistent statements by the witness.

But look at 38(6) (informing the Court at the earliest opportunity of the party’s intention to seek leave to make the application under s38).

Question 11

Section 192 of the Evidence Act is where the Court grants leave, upon application for certain things. What 5 things under Section 192(2) is the Court to consider before granting leave/permission?

Answer 11

192 Leave, permission or direction may be given on terms

(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.
(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:
(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and
(b) the extent to which to do so would be unfair to a party or to a witness, and
(c) the importance of the evidence in relation to which the leave, permission or direction is sought, and
(d) the nature of the proceeding, and
(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

Question 12

What was found in the case of Lozano in relation to unfavourable evidence.

Answer 12

Neutral evidence is also considered to be unfavourable.

Question 13

What does Section 32 of the Evidence Act legislate?

Answer 13

Attempt to revive memory in Court.

32 Attempts to revive memory in court

(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, it 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, or is a copy of, a document that:
(i) was written or made by the witness when the events recorded in it were fresh in his or her memory, or
(ii) was, at such a time, found by the witness to be accurate.
(3) If a 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 the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion.

Question 14

What did the case of Fowler find in relation to 38?

Answer 14

*Fowler was a murder trial in the NSW Supreme Court in 1997.. there was an application under S38 by the Crown to cross-examine a witness AFTER completion of defence cross examination as evidence in cross-examination contradicted evidence of other crown witnesses.

It was HELD and leave was granted - evidence unfavourable to the Crown - evidence goes to a fact in issue - evidence could not be dealt with in examination in chief.

Question 15

What did Burrell say in relation to s38?

Answer 15

Section 38(4) provides that cross-examination of a party’s own witness, pursuant to leave granted under Section 38(1), is TO TAKE PLACE BEFORE THE OTHER PARTIES CROSS-EXAMINE the witness, unless the court otherwise directs.

The judge in this case did not err in granting further leave to the Crown to cross-examine certain witnesses: This was despite the fact that evidence given at the appellant’s earlier trial meant that the Crown would have been able to anticipate the course of evidence and of cross-examination”.

Question 16

Mahmood v Western Australia is a 2008 reconsideration of Jones v Dunkel - what was found in Mahmood v Western Australia?

Answer 16

“… where a witness, who might have been expected to be called and to give evidence on a matter, is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused”.

Question 17

What does Section 38(6)(a) provide in relation to unfavourable witnesses?

Answer 17

Section 38(6)(a) makes it obligatory for you to inform the court (put them on notice) as soon as you become aware that the witness is unfavourable. When making an application, 38(6)(b) should be pointed out - the court should be told that if the prosecution don’t cross examine them, the defence are not likely to.

Question 18

Under what Section of the Evidence Act does the prosecution seek leave of the Court?

Answer 18

Section 192

Question 19

After leave is sought under Section 192 to cross examine a witness who has become unfavourable to the prosecution, what Section is sought to be utilised to conduct that cross-examination of the unfavourable witness?

Answer 19

Section 38 of the Evidence Act.

“I now seek the Court’s leave to cross-examine this witness pursuant to Section 38”.

Question 20

What did Bellew, J find in Odisho v R [2018]?

Answer 20

Leave under Section 38(3) is required where the questions put go only to credibility.

Question 21

The case of Lozano NSWCCA 1997 found what in relation to Section 38?

Answer 21

** (this was a case of disposing of stolen goods - Crown granted leave to cross-examine witness accomplice - witness claimed no memory of events although made a statement to police and gave evidence at committal).

It was held (dismissing appeal) that “unfavourable” does not necessarily equate with hostile or adverse - means “not favourable” and leave should be granted:

1. Where evidence of witness is unfavourable or
2. Where attitude of witness to party calling them unfavourable

Question 22

What does Section 38(1)(b) of the Evidence Act legislate?

Answer 22

Not making a genuine attempt to give evidence.
(Witnesses who are unwilling or deliberately avoiding giving evidence).
The court can take into account the demeanour of the witness.

38(1)(b) a matter of which the witness may reasonably be 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

Question 23

What does Section 38(1)(b) of the Evidence Act legislate?

Answer 23

Whether the witness has, at any time, made any prior inconsistent statement (the Definition is in the Evidence Act “prior inconsistent statement of a witness means a previous representation that is inconsistent with evidence given by the witness’ (note, only “inconsistent” not adverse).

‘Representation’ and ‘previous representation’ are also defined.

Question 24

Section 38(1)(c) covers prior inconsistent statements. If a witness has made a PIS, what section allows a prosecutor to call the Police officer in relation to the prior inconsistent statement?

Answer 24

Section 43.

A prior inconsistent statement includes Police statements, and anything a witness has said at any time to any person about the events which is NOT CONSISTENT with the evidence actually given in hearing by the witness.

For leave to be granted, you will need to prove that they have made a prior inconsistent statement and that is relevant to a fact in issue and not only a question of credit.

Question 25

What does Section 43 allow in relation to a prior inconsistent statement?

Answer 25

Section 43 allows the prosecution to re-open their case to call evidence to prove the making of the statement.

Question 26

What does Section 43(2)(a) & (b) say?

Answer 26

If a witness does not agree to the making of the prior inconsistent statement, you do have to ensure there is no misunderstanding about which document you are referring to.

Question 27

What does Section 43(3) allow?

Answer 27

Allows the prosecution to re-open the prosecution case , but only if 43(2) has been complied with.

Question 28

What does Section 42 of the Evidence Act say in relation to Leading Questions?

Answer 28

Section 42(3) says the court is allowed 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.

Question 29

What are the implications of the defence asking leading questions of a witness who is unfavourable to our case?

Answer 29

Under Section 42, the Court may prevent a party from asking leading questions in CROSS if a witness is sympathetic to the cross-examiners case of if a witness is of tender age, elderly, easily led, bias towards the defence, etc.

This particularly applies to the defence questioning our unfavourable witnesses.

Question 30

What did R v Terkmani find in relation to unfavourable witnesses.

Answer 30

Where the Crown prosecutor fulfills such an obligation it would be unjust to the Crown (which prosecutes on behalf of the Community) to refuse leave to cross-examine in relation to the unfavourable evidence given, subject of course to the usual discretions

Question 31

What does Section 60 of the Evidence Act provide?

Answer 31

Section 60 is an Exception to the hearsay rule and admits evidence relevant for a non-hearsay purpose

(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.

Tendering of the Statement. Once a statement has been tendered under S38 (when unfavourable) the Prosecution relies on Section 60 “Now the statement has been admitted pursuant to S38, S60 says it can be used for the truth of it’s contents. The prosecution asserts that the witness is not giving truthful evidence in the box, but that the statement, made shortly after the events it described, corroborated by (injuries, repeated complaints, eyewitnesses etc) is the truthful version of events.

Question 32

What is Section 60 of the Evidence Act?

Answer 32

60 Exception: evidence relevant for a non-hearsay purpose

(1) The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
(2) This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62 (2)).

Note. Subsection (2) was inserted as a response to the decision of the High Court of Australia in Lee v The Queen (1998) 195 CLR 594.

(3) However, this section does not apply in a criminal proceeding to evidence of an admission.

Note. The admission might still be admissible under section 81 as an exception to the hearsay rule if it is “first-hand” hearsay: see section 82.

Question 33

What was the finding in Adam v the Queen?

Answer 33

…”that difference brought about by Section 60 was one of the significant alterations in the rules of evidence that the Act was intended to effect. No longer were tribunals of facts to be asked to treat evidence of prior inconsistent statements as evidence that showed not more than that the witness may not be reliable. The prior inconsistent statements were to be taken as evidence of their truth. Thus far from th result being, as the appellant asserted, bizarre or unintended, IT IS THE INTENDED OPERATION OF THE ACT”.

Question 34

What was found in R v Esho in relation to Section 38

Answer 34

Held that Section 38 is not limited to circumstances where the unfavourable evidence in question is unexpected.

Question 34

What is the summary of Unfavourable Witnesses?

Answer 34

1. Your obligation as a prosecutor is to place all the relevant evidence before the court
2. The prosecutor is likely to be obliged to call an unfavourable witness (Whitehorn & Apostilides)
3. If the prosecutor wishes to cross-examine a witness, the prosecutor must demonstrate that the witness falls within one of the subsections of S38?
4. The court grants leave under Section 38 Evidence Act
5. The court will also refer to Section 192 (leave generally)
6. Cross ex on points where leave granted
7. Court should allow the tender of any prior inconsistent statement
8. Section 60 then applies.