Unfavourable Witnesses

Question 1

What is the procedure (18 steps) for prior inconsistent statement

Answer 1

1. Put court on notice may be an unfavourable witness application under section 38.
2. Call OIC and mark witness statement for identification
3. Call unfavourable witness
4. Adduce current testimony
5. Attempt to revive memory under s32.
6. If unsuccessful seek voir dire on prior inconsistent statement.
7. Call witness who observed making of statement.
8. Adduce evidence of prior statement
9. Tender prior statement
10. Address court on voir dire that leave should be given to cross examine witness under s38(1)(c)
11. Consider and mention section 38(6)(a) and (b)
12. If required seek additional leave section 38 (3) to cross examine witness on matters of credit
13. Recall witness who made prior inconsistent statement
14. Once you leave if witness denies making PIS should witness PIS comply s43(2)(a) and (b). Put to them parts inconsistent
15. Tender evidence during voir dire.
16. Cross examine The witness as to those parts of the witnesses evidence which is inconsistent with the version the witness gave in evidence in the first instance.
17. If the witness remains partisan to the defence version, you may request the court to limit cross examination of the witness by virtue of section 42
18. Address court on the effect of section 60 of applicable

Question 2

Who is an unfavourable witness?

Answer 2

Souleyman (1996) “Unfavourable is not favourable”

Question 3

Does an unfavourable witness have to be hostile or adverse?

Answer 3

No. DPP v Garett “If the evidence of the witness called by that party is inconsistent with or likely to be contradictory or that identified case, it will ordinary satisfy the description of unfavourable.”

Lozano: even neutral evidence may satisfy the meaning of unfavourable where the evidence of the witness or attitude of the witness is not favourable

Question 4

Why would prosecution call an unfavourable witness?

Answer 4

Two fundamental propositions:

1. The prosecutor has a positive obligation to out before the court all material witnesses
2. All evidence should be properly tested.

Question 5

Is a prosecutor bound to call witnesses?

Answer 5

No. Whitehorn v R: 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 matters is such that in the circumstance it would be unnecessarily repetitious to call them all than a selection may be made.

Question 6

What are three types of witnesses that might be considered unfavourable?

Answer 6

1. A person who gives evidence inconsistent with the party’s case.
2. Prosecutor has a suspicion the witness is not going to tell the truth
3. Witness is unreliable, untrustworthy or otherwise incapable of belief.

Question 7

Do we have to call the evidence of unfavourable witnesses?

Answer 7

Yes if the evidence is inconsistent or prosecutor only suspect a may be unfavourable.

Not if prosecutor is satisfied witness is unreliable, untrustworthy or otherwise incapable of belief.

Question 8

Is there a definition of unfavourable in the evidence act?

Answer 8

No there isn’t.

Question 9

What are the four key points from whitehorn v R?

Answer 9

1. Prosecution have to profer a satisfactory explanation as to why not to call witnesses
2. All available witnesses should be called whose evidence is necessary to unfold the narrative
3. 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
4. All witnesses whose names are on the indictments presentment or information should never the less be made available.

Question 10

What are the 5 key points of R v Apostilides?

Answer 10

1. If the prosecutor forms a positive judgment based on his/her own observations that the witness is in fact unreliable, untrustworthy or otherwise incapable.lf belief can the prosecutor decline to call the witness.
2. The prosecutor cannot rely on what he/she is told about a witness who is unreliable etc.
3. Suspicion about a witness is not enough.
4. Must be identifiable circumstances
5. Crowns reasons were insufficient to justify the decision of not calling witnesses. Ought to have called all witnesses or give satisfactory explanation.

Question 11

What is the authority of Jones v Dunkel?

Answer 11

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 12

What is the authority of Mahmood v Western Australia?

Answer 12

Reconsideration of Jones v Dunkel whether in the circumstances they should entertain a reasonable doubt the guilt of the accused.

Question 13

What do we do about unfavourable witnesses?

Answer 13

Section 38 evidence act provides 3 grounds to challenge a witness in evidence in chief. It provides that a party who called a witness may with leave of the court question the witness as though a party were cross examining the witness about

A38(1)(a) evidence given by the witness that is unfavourable to the party
38(1)b) the witness is not making a genuine attempt to give evidence
38(1)(c) the witness has made a prior inconsistent statement.

Question 13

What do we do about unfavourable witnesses?

Answer 13

Section 38 evidence act provides 3 grounds to challenge a witness in evidence in chief. It provides that a party who called a witness may with leave of the court question the witness as though a party were cross examining the witness about

A38(1)(a) evidence given by the witness that is unfavourable to the party
38(1)b) the witness is not making a genuine attempt to give evidence
38(1)(c) the witness has made a prior inconsistent statement.

Question 14

What is required of the prosecutor?

Answer 14

S38(6)(a) required party to give notice at the earliest opportunity of the intention to seek leave under section 38.

6(b) the matter to which the witness has or is likely to be questioned by another party aka if you don’t cross examine the defence are unlikely to.

And prosecutor must comply with section 192 Evidence act.

Question 15

What 5 factors should the prosecutor address the court on when seeking leave under section 192 Evidence Act?

Answer 15

192(2)(a) the extent to which to do so would likely to add insult to or shorten the length of the hearing
S192(2)(b) the extent to which to do so would be unfair to a party or a witness
S192(2)(c) the importance of the evidence in relation to which the leave,.permission or direction is sought
S192(2)(d) the nature of the proceedings
S192(2)(e) power of any of the court to adjourn
S192(2)(f) 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 16

What is a prior inconsistent statement?

Answer 16

A previous representation that is inconsistent with evidence given by the witness. Inconsistent means inconsistent it doesn’t have to be adverse.

Question 17

How do you show prior inconsistent statement what section of the act would you rely on?

Answer 17

Ask the witness if denies statement made: 
S 43(2) evidence act requires prosecutor to ensure there is no misunderstanding about which document you are referring to. 
S43(3) evidence act allows you to reopen your case to call evidence to prove making of a statement (e.g. call.policr officer again. 
S 43 (1) evidence act allows the witness to be cross examined on the prior inconsistent statement.

Question 18

Who can ask leading questions?

Answer 18

Leading questions may be asked in cross examination however:
S42(3) evidence act - the court is to disallow the question or direct the witness not to answer it the court is satisfied that the facts instead would be better ascertained if leading questions were not used.
The court may prevent a party from asking leading questions in cross examination if a witness is sympathetic to take the cross examiners case or if a witness is or tender age, elderly easily led or bias towards defence etc.

Question 19

When can we cross examine our own witnesses?

Answer 19

Section 38(1) evidence act evidence in chief or section 38(4) and 38(5) in re- examination.

Fowler NSWCA application by crown to cross examine after completion of defence cross examination held granted as evidence unfavourable to crown evidence goes to a fact in issue. Evidence could not be dealt with in evidence in chief.

Question 20

What order does an unfavourable witness give evidence?

Answer 20

S38(4) evidence act. Cross examination of a parties own witness is to take place before other parties cross examine unless the court otherwise directs Burrel v R (2009)

Question 21

What is the relevance of section 38 and 60 together?

Answer 21

If an application for an unfavourable witness under section section 38(1)(c) evidence act is inconsistent with statement e.g. written statement or dvec. It needs to be tendered to prove inconsistency.

Section 60 evidence act allows evidence to be allowed in for a non hearsay purpose the non hearsay purpose is the prior inconsistent statement.

Prosecutor should submit that statement tendered in the hearing proper and section 60 days it can be used for the truth of it’s contents we say the witness is deliberately not giving truthful evidence today but that statement made shortly after the events it describes corroborated by injuries etc is truth of the version of the events.

Question 22

What is the authority of Col v R (2013)?

Answer 22

Once a prior inconsistent statement is admitted it is evidence of the facts.

Question 23

What if defence or magistrate won’t allow DVEC to be played

Answer 23

DPP v Wunderwald (2004) any attempt to prevent playing of DVEC should be disregarded and opposed.