Unfavourable Witnesses

Question 1

What is the prosecutions positive responsibility? First fundamental proposition.

Answer 1

To call all available evidence, both inculpatory and exculpatory.

Question 2

What is the second fundamental proposition?

Answer 2

All evidence should be properly tested.

Question 3

Case law in relation to calling all witnesses?

Answer 3

R v Whitehorn

Question 4

What does R v Whitehorn say?

Answer 4

All witnesses who’s evidence is necessary to unfold the narrative should be called. If they aren’t called, the prosecution should proffer a satisfactory explanation as to why.

Question 5

Under what circumstances do we not need to call a witness and what case law?

Answer 5

R v Whitehorn.
Don’t need to call witness if Unreliable, untrustworthy, incapable of belief, unnecessarily repetitious (multiple police for same evidence).

Question 6

What do we base our decision on whether to call a witness or not? Case Law?

Answer 6

R v Apostilides
Judgement of prosecutor, own observations, more than a suspicion, should CONFERENCE witness, can’t rely on what been told by others.

Question 7

What can result if don’t call a witness?

Answer 7

Miscarriage of justice

Question 8

Case law in relation to drawing inference if witness not called?

Answer 8

Jones v Dunkel

Question 9

What is Jones v Dunkel?

Answer 9

If you don’t call a witness the court, and can’t satisfactorily account for them, Court can draw an inference that the uncalled witness would not have assisted the case of the party who were expected to call them.

Question 10

What case law has trumped Jones v Dunkel?

Answer 10

Mahmood v Western Australia

Question 11

What is Mahmood v Western Australia?

Answer 11

Not calling a witness doesn’t automatically allow court to draw an inference, it must look at all of the circumstances of the case first.

Question 12

S 38 of the evidence Act?

Answer 12

Unfavourable Witnesses

Question 13

S38 1?

Answer 13

(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:

Question 14

S 38 1 a?

Answer 14

Evidence given that is unfavourable

Question 15

S38 1 b?

Answer 15

Witness not giving a genuine attempt to give evidence

Question 16

S38 1 c?

Answer 16

Prior inconsistent statement by the witness

Question 17

S38 (6)?

Answer 17

The court is to take into account when determining to give leave;

• a) Whether the party gave notice of the unfavourable witness at the earliest chance. (as soon as you become aware)
  b) The matters or extent the witness has been, or is likely to be, questioned by other party (defence are likely to cross examine them if prosecution doesn’t)

Question 18

What section do we seek leave under?

Answer 18

S 192 Evidence Act

Question 19

What does 192 say?

Answer 19

Court may give leave, or permissions, as it sees fit.

Question 20

192 (2)?

Answer 20

Court may take into consideration when determining;

a) Extent to which likely to add unduly to or shorten length of hearing.
b) Extent to which it would be unfair to a party or witness
c) Importance of the evidence
d) Nature of the proceedings
e) Power to adjourn or make another order

Question 21

S 38 (3)?

Answer 21

Separate leave is required to cross-examine the witness about matters of credit.

Question 22

What does R v Apostilidies tell us in relation to suspicion?

Answer 22

It will not be enough that the prosecutor merely had a suspicion about the unreliability of the evidence.

Question 23

What does Lozano tell us?

Answer 23

Even neutral evidence may satisfy the meaning of unfavourable.

Question 24

S32?

Answer 24

Attempts to revive memory in court.

Question 25

32 (1)?

Answer 25

Witness must not use document to revive memory unless granted leave by court.

Question 26

32 (2)?

Answer 26

(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.

Question 27

32 (3)?

Answer 27

Ability to read aloud the document the parts that relate.

Question 28

32(4)?

Answer 28

Court is to give direction for document to be produced to witness for the purpose of this section.

Question 29

Lozano and GAC on demeanour?

Answer 29

Court can take into account the demanour of the witness.

Question 30

S 43?

Answer 30

Prior inconsistent statements

Question 31

43 1?

Answer 31

Witness may be questioned in relation to a prior inconsistent statement whether or not

a) Complete particulars of statement have been given to witness
b) Document containing record of statement has been show to witness.

Question 32

43 2?

Answer 32

If they dont admit to making statement, before x examine;

a) inform them of enough of the circumstances of document so they can identify it
b) draw their attention to enough of their statement that is inconsistent with their evidence.

If they dont agree with the making of the statement you have to make sure there is no misunderstanding about which document you are referring to.

Question 33

43 3?

Answer 33

for purpose of adducing evidence, party may re open case.

Question 34

Burrell v R?

Answer 34

Leave can be granted for the cross examination of certain witnesses after defence had cross-examined those witness if inconsistencies arise during defence cross. Application to be made at end of defence cross

Question 35

Can you hand up statement for s 38 application?

Answer 35

yes

Question 36

What do you rely on s 60 to do?

Answer 36

Tender the statement in the case proper after a successful unfavourable witness application.

Question 37

Adam v The Queen?

Answer 37

Held that evidence of prior inconsistent statement no longer had to show only that the witness is unreliable but also to show evidence of their truth.
S 60 means what it says. If the evidence is in due to credit, then it can be used for any other purpose.

Question 38

Lozano definition of unfavourable?

Answer 38

Not favourable.

Question 39

S 60?

Answer 39

If evidence is admitted under S 60 for a non-hearsay purpose i.e Credit, then it can be used for any other purpose. i.e Evidence of the truth of the facts asserted.

Question 40

Col v R?

Answer 40

Once statements admissible for non hearsay purpose, S 60 converts them to evidence of the facts.

Question 41

Once unfavourable witness, what matters can you cross examaine on?

Answer 41

Only matters relating to the section you sought leave under.

Question 42

S42?

Answer 42

Court may disallow leading questions.

Provides controls in relation to the way an unfavourable witness is examined by the party that did not call the witness.