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THE USE OF DOCUMENTS IN CROSS EXAMINATION:
THE RULES OF PRACTICE B.W. Collins QC
Copyright
19 October 2009
“And I would sooner trust the smallest slip of paper for truth, than the strongest and
most retentive memory, ever bestowed on mortal man.”1
DOCUMENTS WRITTEN OR SIGNED BY THE WITNESS UNDER CROSS
EXAMINATION : PRIOR INCONSISTENT STATEMENTS
INTRODUCTION
Commentary
Although the law upon the subject of cross examination on documents has passed
through at least three major legislative treatments since the Queen‟s case2 was decided
in 1820 some of the rules developed in that case remain part of the law today. It is
therefore necessary to understand a little of the history of the subject.
The High Court of Australia has described the Queen‟s case as “the seminal case on
proof of inconsistent statements”3 The effect of the rules in the Queen‟s case (supra)
was that there could be no cross-examination of a witness on his own document
unless it was first shown or read to him and the cross-examiner was then bound to
tender the document. A number of disadvantages4 led to the rules being amended by
statute. Prior to the introduction of the Evidence Act 1995 (NSW) (“the Act”), the
principal statutory provision relating to cross-examination on documents was s.55 of
the Evidence Act 1898 (NSW) which complemented s.54 of the same Act, which was
limited to oral statements. 5
Cross Examination on Documents
In TPC v TNT Management 56 ALR at 681 Franki J. said that:
1 Miller v Cotton (1848) 5 Ga 341 at 349
2 2 Broderip & Bingham 284, 129 ER 976
3 Nicholls v The Queen, Coates v The Queen (2005) 219 CLR 196 at 233. Nicholls v The Queen (supra) also
serves as a timely reminder of the requirement in s.43 of the Act that before proof of a previous inconsistent
statement may be tendered, the circumstances of the statement must be identified to the witness in sufficient
detail to designate the particular occasion. See Nicholls (supra) at 232. 4 These are set out in Cross on Evidence and in Wigmore and interestingly include the proposition that the strict
operation of the rule was unfair to the cross examiner because it deprived him of the weapon of surprise. The
American edition of Wigmore was particularly scathing: “In the year 1820 an English decision, laid down a rule
which for unsoundness of principle, impropriety of policy, and practical inconvenience in trials, committed the
most notable mistake that can be found among the rulings upon the present subject. The ruling was in England
soon afterwards expressly annulled by legislation, but it was meanwhile widely followed in this country in
ignorance of its repudiation in the jurisdiction of origin.” (The reference is to the United States of America)
(Wigmore, paragraph 1259) 5 For a detailed discussion of the decision in the Queen‟s see for example Macdonald v Evans (1852) 11 CB
929.
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“In my opinion the combined effect of sections 54 and 55 of the Evidence Act
1898 (NSW) is that a witness who is not a party may not be cross examined
about his own document without showing it to him and without any obligation
to put it into evidence unless in the document the witness has made a
statement inconsistent with his present evidence and does not distinctly admit
that he made such a statement: see generally Alchin v Commissioner for
Railways (1935) 35 SR (NSW) (498 at 509-510).
In TPC v TNT Management Pty Limited6 it was in effect suggested that the Queen‟s
case7 may still apply where the document being used in cross examination concerns a
topic which is not inconsistent with the witnesses‟ evidence, for example, upon an
issue which the witness did not testify to in evidence in chief because her or his
evidence was not helpful to the side calling the witness. In that case the witness was
not a party and had not been cross examined for the purpose of showing any
inconsistency between the document and his evidence. Therefore the witness could
not be cross examined on his own document without showing it to him, a vestige of
the rule in the Queen‟s Case (supra).
The present position in practice is regulated by ss.43, 44 and 45 of the Act. It is
convenient to deal firstly with s.43 which rolls up the earlier law contained in ss.54
and 55 of the 1898 Act.
Rule 1
1. All questions must first clear the hurdle of relevance.
Commentary
It is essential that the cross examiner approach the problem in limine by asking
whether the question proposed to be addressed to the witness whether he or she is a
party or not, concerning a document whether written or composed by the witness or
not, has the necessary probative value. The principal rule of relevance is set out in
s.55(1) of the Act:
“If the evidence were accepted, could that evidence rationally affect (directly
or indirectly) the assessment of the probability of the existence of a fact in
issue in the proceeding.”
Logical relevance is therefore sufficient. Evidence is not to be taken as inadmissible
only because it relates merely to the credibility of a witness.
Rule 2
2. If any witness including a party be merely asked whether he or she wrote or
signed a document which contains a prior inconsistent statement alleged to have
been made by the witness and the cross examiner has made no reference to its
6 (1983) 56 ALR 647 at 680-681
7 The Queen‟s case itself is the subject of an extensive historical analysis by Dermot Ryan SC in a paper
recently delivered to the NSW Bar entitled The Queen‟s Case (Bar Association CPD Seminar 10 June 2009.
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contents then such a document need not be shown to the witness and if it is
shown to the witness it is not necessary for the cross examiner to put the
document into evidence nor is it necessary to give complete particulars of the
statement to the witness. 8
Commentary
This rule follows from Section 43(1) of the Act.
Rule 3
3. When cross examining a witness “about”
9 prior statements made by the witness
such prior statements must be inconsistent with evidence given by the witness for
the reason that except to discredit the witness such cross examination has no
relevance unless the witness is a party.
Commentary
This rule follows from the terms of s.43 of the Act itself and it would seem that there
is no difficulty or controversy concerning the application of the rule. Questions of the
kind contemplated by s.43 are in their nature largely exploratory up to a point. What
is contemplated by the first part of s.43(1) is the type of question which enquires
whether or not the witness under cross examination has made a prior inconsistent
statement (although those will not necessarily be the words used by the cross
examiner). While such a question may be regarded as an initial probe it can
nevertheless be a potent weapon in the hands of the cross examiner of a witness who
does not quite know exactly what material the cross examiner may or may not have
available to him. The threshold beyond which the preliminary probe cannot pass is
established by s.43(2) which highlights the next critical decision making crossroads
for counsel. That is for the reason that if the witness does not admit (and this is of
course the most common occurrence) that he or she has made a prior inconsistent
statement then that will be the end of the matter unless the cross examiner chooses to
go further and to adduce evidence of the statement. But if he does then he is required
to satisfy both of the requirements of s.43(2)(a) and (b).
8 “Section 43(1) A witness may be cross examined about a prior inconsistent statement alleged to have been
made by the witness whether or not:
(a) complete particulars of the statement have been given to the witness;
(b) a document containing a record of the statement has been shown to the witness.
(2) If, in cross examination, a witness does not admit that he or she has made a prior inconsistent statement, the
cross examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross
examination, the cross examiner:
(a) informed the witness of enough of the circumstance of the making of the statement to enable the
witness to identify the statement; and
(b) drew the witness‟s attention to so much of the statement as is inconsistent with the witness‟s evidence.
(3) For the purpose of adducing evidence of the statement, the party may reopen the party‟s case.” 9 See the terms of 43(1).
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Rule 4
4. If the witness is a party then the only requirement imposed upon the cross
examiner is that the contents of the document must be relevant to an issue in the
proceedings10
and for that reason admissible in evidence if the opposing party
seeks to tender the document.
Commentary
See R v Treacey.11
In the case the appellant had been charged with murder. The
prosecution sought to tender a statement made by the accused when in a state of
serious ill health to a police officer which was made to the police officer on a day that
the accuse was due to appear in a local court on a charge on larceny. A document
comprising written questions by a police officer to which the accused wrote answers.
The accused was then cross examined by the Crown upon those answers and those
answers were contrasted with the answers that he had been giving on that same day in
the witness box in the hearing of the jury. The Court was firmly of the view that the
statement was inadmissible and said this:
“In our view, a statement made by a prisoner under arrest is either admissible
or it is not admissible. If it is admissible, the proper course for the prosecution
is to prove it, give it in evidence, let the statement if it is in writing be made an
exhibit, so that everybody knows what it is and everybody can inquire into it
and do what they think right about it. If it is not admissible, nothing more
ought to be heard of it, and it is quite a mistake to think that a document can
be made admissible in evidence which is otherwise inadmissible simply
because it is put to a person in cross examination.” (at page 236 of the Report)
Rule 5
5. The terms of s.102 of the Act provide that evidence that is relevant only to a
witness’s credibility is not admissible. However, for present purposes an
important exception to the credibility rule is to be found in s.106(c) of the Act
which provides that the credibility rule does not apply to evidence that tends to
prove that a witness has made a prior inconsistent statement if that evidence is
adduced otherwise than from the witness and the witness has denied the
substance of the evidence.
Commentary
Section 102 links directly in to s.43 in three ways. It contains an express exception to
the credibility rule. The exception applies to proof of an inconsistent statement that
the witness has denied making.
10
See s.55 of the Act. 11
(1944) 2 All.ER 229 at 236
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Rule 6
6. If on cross examination the witness does not admit the making of a prior
inconsistent statement, that is a statement inconsistent with the evidence given by
the witness in the proceedings,12
then the cross examiner is not permitted to
adduce evidence of the statement otherwise than from the witness, unless in the
course of the cross examination, the cross examiner has informed the witness of
enough of the circumstances of the making of the statement to enable the witness
to identify the statement and drawn the witness’s attention to so much of the
statement as is inconsistent with the witness’s evidence given in the proceedings.
Commentary
These requirements follow from the terms of s.43(2) of the Act itself. These
requirements are strictly applied. The cross examiner must be precise. See Nicholls v
The Queen (supra) at footnote 3.
Rule 7
7. If the witness distinctly admits that he or she made a previous inconsistent
statement, then the purpose of discrediting the witness by the inconsistency has
been achieved, and the statement cannot be further proved in evidence unless it
is otherwise admissible, that is to say if it satisfies the test of relevance laid down
in s.55 of the Act. See later Rule 9 which is based on s.60 of the Act.
Commentary
See Alchin v Commissioner for Railways13
, a case decided before s.60 was enacted.
That decision remains applicable to those circumstances where the evidence is not
otherwise admissible.
Rule 8
8. On the other hand if the witness admits making a prior inconsistent statement
and the witness is also a party then his or her evidence will comprise an
admission as to that fact and may be viewed as an exception to the hearsay
nature of out of court statements. However, if an additional step is taken and the
witness swears that the prior inconsistent statement was a true statement of fact
then that previous statement is in evidence of the fact stated.
Commentary
See also R v Moore.14
12
See the dictionary definition of “prior inconsistent statement” in the Act. 13
(1935) 35 SR 498 at 508-509 per Jordan CJ. 14
(1995) 77 A.Crim.R. 577.
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Rule 9
9. The rule embodied in s.60 of the Act
15 allows both consistent and inconsistent
statements to be used not only to assess the credibility of the witness but also to
serve as evidence of the matter stated.
Commentary
Section 60 is a radical departure from the previous common law. In Welsh (1996) A
Crim R 364 at page 369, Hunt CJ referred to the failure to recognise “the
extraordinarily wide ramifications of s.60 …” and said that “More than 12 months
later, we are all struggling with this statute, and with the extent to which s.60 does
apply.” Prior to 1995 the law did not permit evidence to be led of the prior
inconsistent statement upon any other issue than credit unless the witness was a party.
See Hammer v S. Hoffnung & Co. Limited 16
and R v Adam17
The effect of s.60 is that the hearsay rule does not now apply to evidence of a
previous representation, that is admitted for a purpose other than proof of the fact
intended to be asserted by the representation. So, if a prior inconsistent statement is
admitted because the statement is relevant for a purpose other than proof of the fact
intended to be asserted by the representation i.e. because of its effect in impeaching
the credibility of the witness, then it is also evidence of the truth of the fact asserted in
the document. In other words once in, the evidence is said to be in for all purposes.
In Lee v The Queen18
the prosecution led evidence from a police officer that a
prosecution witness had told the police that Lee had confessed to him, that is to the
prosecution witness. The alleged confession could not be proved by admissible
evidence relying upon the exception to the hearsay rule contained in the relevant State
Evidence Act because the evidence of the confession was not first hand within the
meaning of the statutory exception.
The basis upon which the evidence was propounded was said to be its relevance to the
prosecution witness's credibility as the witness had given evidence at the trial denying
that Lee had confessed to him. The earlier statement made to the police was therefore
one which was inconsistent with his evidence at the trial and prior to 1995 would have
engaged the old rule in Hammer v Hoffnung19
which required that unless the witness
was a party the prior inconsistent statement was relevant only to that witness‟s credit.
The trial judge admitted the evidence on the basis that once in the evidence was
available to be considered by the jury as evidence that Lee had in fact confessed to the
crime and had in fact committed the crime.
15
Section 60 provides: “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 the fact intended to be asserted by the
representation.” 16
28 SR (NSW) 280 at p.284 17
207 CLR 96/ 18
(1998) 195 CLR 594 19
(supra)
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In the High Court emphasis was laid upon the necessity to identify what was the
relevant "representation" upon which s.60 of the Act operated, for in Lee's case there
were two representations.
The first representation was what was asserted by the prosecution witness in his
statement to the police. On the other hand the second representation was a
representation allegedly made by the accused Lee to the prosecution witness. What
the prosecution witness was asserting was merely that Lee had told him certain things,
not that Lee had in fact committed the crime. The prosecution witness was never in
any sense a witness who could give direct observation evidence of relevant facts. In
those circumstances the High Court concluded that s.60:
"… does not convert evidence of what was said, out of court, into evidence of
some fact that the person speaking out of court did not intend to assert."20
That being so, what was required from the trial judge in Lee‟s case was a clear
direction to the jury as to the narrow and limited use which could be made of the
evidence of the prosecution witness's statement to the police. An alternative and
suggested safer course would have been to exclude the evidence entirely in reliance
upon the provisions of s.135 of the Act, a course which the High Court preferred.21
When s.60 of the Act speaks of “…evidence of a previous representation that is
admitted because it is relevant for a purpose other than proof of the fact intended to be
asserted by the representation” the word "purpose" in the section is to be objectively
ascertained.22
Rule 10
10. If a party is cross examining or has cross examined a witness about a prior
inconsistent statement alleged to have been made by the witness that is recorded
in a document or a previous representation alleged to have been made by
another person that is recorded in a document then the cross examining party
must produce the document or such evidence of the contents of the document as
is available to the party, if the court so orders either on the application of
opposing counsel or of the court’s own motion.
Commentary
This rule follows from s.43(2) of the Act. Thus the document must either be in Court
or capable of being produced. This is a forensic safeguard and is the equivalent of the
proviso to the former s.55 of the 1898 Evidence Act (NSW). Section 45(2) of the Act
was no doubt enacted to deal with vices of the kind highlighted by such cases as R v
Anderson23
and R v Sehan Yousry24
. The direct bearing of these cases upon the proper
20
Lee v The Queen (supra) at 601 21
Lee v The Queen at 604 22
R v Adam (1999) 47 NSWLR 267, affirmed in the High Court Adam v The Queen (2001) 207 CLR 96 where
there was no reference made to this question. 23
(1929) 21 Cr.App.R. 178 24
(1914) 11 Cr.App.R. 13
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conduct of counsel in court and the operation of relevant Bar Rules, demands a brief
consideration of the kind of questionable conduct highlighted by cases such as those
to which reference has been made.
What happened in R v Sehan Yousry25
may be taken directly from a passage in the
judgment of Lord Coleridge who said:
“The question (prejudice in the minds of the jury) arose thus. The lady was
being cross-examined, and counsel for the prosecution held in his hand a piece
of paper, and instead of saying, “look at this piece of paper; do you adhere to
your answer”.26
He described it as a report from the Cairo Police as to her
origin, and then invited counsel for the defence to look at it, who was
sufficiently on his guard not to do so. The effect which it was calculated to
produce was, no doubt, that this was a report from the Cairo Police so
damaging to the appellant that her counsel dare not touch it. Now, that was
inadmissible in evidence, and in our judgment that was a wholly wrong
method to adopt. Counsel for the prosecution holding documents in his hand
which he cannot put in, has no right to suggest to the jury in any way what
they are.”
Thus if the document is not admissible it should not be used so as to convey to the
witness an erroneous impression. This is particularly important in view of the rules
which do not entitle the witness‟s counsel either to see the document or insist that the
cross examiner tender it or tender the document itself. See Meredith v Innes27
.
Similarly in Regina v Ford & Ors28
Alderson B said:
“If the deposition is not put in evidence it is impossible to tell whether it
contains the same or a different statement from that which the witness makes
in court; and a false impression may be produced upon the jury by the cross-
examination. The two statements may be precisely the same, yet this line of
cross-examination would naturally lead the jury to suppose that they were
different.”
Rule 11
11. The witness cannot insist upon seeing the document first before answering any
questions about the document or questions based upon the document.
Commentary
See North Australian Territory Company v Goldsborough Mort & Co (1893) 2 Ch.
381 at 385. This old common law rule is not dealt with in the Act and is a surviving
rule of practice. There is sound reason why that should be so. It has to do with the
same element of surprise, the desire for which fuelled much of the criticism of the rule
25
(1914) 11 Cr.App.R. 13 26
The precursor of the procedure adopted in R v Orton (supra). 27
(1930) 31 SR (NSW) 104 28
(1851) 5 Cox‟s Criminal Cases 184
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in the Queen‟s case.29
No doubt the Court has the power30
to permit the witness to
see the document before answering such questions.
Rule 12
12. Semble at common law counsel for the witness being cross examined cannot
insist on seeing the document before the witness answers the question however
an application may now be made by counsel for the witness under cross
examination pursuant to s.45(2) for an order that the cross examining party
produce the document to counsel for the witness under cross examination.
Section 45 applies both to a prior inconsistent statement alleged to have been
made by the witness and a previous representation alleged to have been made by
another person that is recorded in a document. The latter course is authorised
by s.44 of the Act.
Commentary
In Collier v Nokes31
, an action in trespass and trover, counsel for the defendants
handed some letters to the witness and asked the witness and was told by the witness
in whose handwriting the letters were written. Seargent Byles for the plaintiff,
claimed to be entitled to see the letters which had been used in that way. Relying
upon a ruling by Baron Parke, the defendant contended that the defendant‟s counsel
had no right to see any documents under such circumstances. Chief Justice Wilde
was inclined to think that opposing counsel was entitled to see the letters “otherwise
he perhaps would not be able to shape his line of conduct". However as Baron Parke
had ruled to the opposite effect, the Chief Justice said that he would abide by that
ruling. This is hardly a clear guide but it is suggested that provided the other rules as
to the conduct of counsel cross-examining upon such documents have been adhered to
that the pursuit of the truth might be best served by permitting such a line of cross-
examination without conferring a right upon opposing counsel to see the documents.
Rule 13
13. If the witness is in conflict with his prior inconsistent statement it is not
necessary for the cross examiner to give the witness an opportunity to explain the
contradictory passages upon which the cross examiner relies.
See Savanoff v Re-Car Pty Limited32
. Note however the important role for re-
examination in the rehabilitation of credit in cases of this kind. It would be legitimate
to ask questions of the witness as to the circumstances in which the prior inconsistent
statement came to be made provided those questions fell within the accepted
principles regulating the nature of re-examination. See also the commentary to Rule
38 infra.
29
See fn. 3 supra. 30
See section 26 of the Act. 31
2 CAR. & K. 1012; 175 ER 426 32
(1983) 2 Qd.R.219 at 229.
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Rule 14
14. It is legitimate however for counsel for the party calling the witness under cross
examination to re-examine the witness as to the circumstances in which the prior
inconsistent statement came to be made provided those questions fell within the
accepted principles regulating the nature of re-examination.
Commentary
Note the terms of s.39 of the Act regulating re-examination “a witness may be
questioned about matters arising out of evidence give by the witness in cross-
examination”. Re-examination is not limited to clearing up ambiguities.
Rule 15
15. If the previous statement of the witness is inadmissible the cross examiner is
permitted to ask the witness about the document but cannot identify the
document to the witness.
Commentary
The rationale for this rule is that once the cross examiner conveys to the court that
there is in existence an adverse document, the cross-examiner must be in a position to
produce the document and tender it in accordance with the law: see s.45(2) of the Act
and R v Anderson33
A document or written statement which is inadmissible for any
reason, is not one which can be tendered in accordance with law. Therefore in a jury
trial for example, to open up to a witness the contents of an inadmissible former
statement of his or hers whether he or she is a party or not may lead to the trial being
aborted.
Thus the rules are but an application of the more general rule that the presiding judge
is responsible for ensuring the fair conduct of the trial. In circumstances where a false
impression may be created by the use of a document which either could not be or is
not intended to be tendered, s.45(2) gives the judge power to call for the production of
the document and make any consequential directions necessary for the fair conduct of
the trial. As to the meaning of the word “about” in the section, see R v Lee.34
Rule 16
16. It is permissible however to place the inadmissible prior statement of the witness
in the hands of the witness and to ask the witness to read it to himself or herself
and then ask whether the witness adheres to his or her present testimony, i.e. the
testimony given in the proceedings.
33
(1921) 21 Cr.App.R.178 34
(2002) 54 NSWLR 475
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Commentary
See Alister v The Queen35
, R v Orton36
, R v Sehan Yousry37
and R v Trotter38
and R v
Bedington39
.
Thus in R v Cooper 40
where letters written by the wife of an accused and signed in
his and her names were found by customs officers in the premises where the accused
and his wife lived, the accused who gave evidence at his trial, denied that he was
expecting a consignment of cannabis and said that he was unaware of the letters and
of the incriminating statements concerning the future importation of cannabis,
contained in the letters. Copies of the two letters were given to the jury and the trial
judge directed the jury that unless they were satisfied that the accused knew of the
contents they should be put out of mind.
In what is again a tacit acceptance of the procedure set out in R v Orton41
the English
Court of Appeal referred to Gillespie v Simpson42
and the observations in that case by
Wynn LJ upon the proper procedure to be followed in these terms:
“As it seems to this Court, if a document is produced to a witness and the
witness is asked: “Do you see what that document purports to record?” the
witness may say: “I see it, I accept it as true,” in which case the contents of
the document become evidence against him: or he may say: “I see what is
there written, I do not accept that as true,” whereupon that which is purported
to be recorded in the document is not evidence against that person who has
rejected the contents; it becomes what one might call non-evidence, the
document itself being nothing but hearsay.”43
Rule 17
17. It is essential however to bear in mind that in those circumstances the cross
examiner is bound by the witness’s answer whatever it may be. That is to say
that the cross-examiner is not entitled to call evidence to rebut the truth of the
answer.
Commentary
This is an application of the rule as to the finality of answers to collateral questions.
35
(1984) 154 CLR 404 AT 442-443 36
(1922) VLR 469 at 470 37
(1916) 11 Cr.App.R.13 at 18 38
(1982) 7 Aug.Cr.R.8 at p.22 39
(1970) Qd.R.353 40
(1985) Cr.App.R.74 41
Supra 42
(1967) 51 Cr.App.R. 172 43
Gillespie and Simpson (1967) 51 Cr.App.R. 172 at p177 per Winn LJ and quoted with approval in Warwick
John Cooper (1985) Cr.App.R. 74 at 78
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Rule 18
18. The debate at common law about whether a witness who is a party can be cross
examined as to the contents of an unproduced document is now resolved by the
terms of the Act. If the document is that of the witness then s.43 applies and the
witness may be cross-examined in that very limited way.
Rule 19
19. If the unproduced document is that of another person then s.44 applies and
unless the requirements of s.44(2) are satisfied, that is evidence of the
representation must have either been admitted or the court must be satisfied that
it will be admitted, that is an end of the matter because the procedure in s.44(3)
requires that the document must be produced to the witness and that the cross
examiner is not to identify the document or disclose any of its contents.
Commentary to Rules 18 and 19
At common law there was a debate about whether a witness who is a party can be
cross-examined as to the contents of an unproduced document, the contents of which
are within the witness‟s personal knowledge. See Glass‟s Seminars on Evidence44
and
McHugh Cross Examination on Documents45
. Alchin v Commissioner for Railways46
supports the proposition however there is express authority to the contrary. See Darby
v Ousley47
. As is pointed out in the article in 1 Aust. Bar Review, page 56, without
objection parties are frequently asked to make admissions concerning the contents of
documents whether or not they were in fact made by that person for example, minutes
of meetings provided the contents are within the personal knowledge of the party.
Rule 20
20. A witness cannot be asked in cross-examination even for the purposes of
discrediting him or her, questions as to the contents of a document which is
neither produced or accounted for.
Commentary
In Macdonnel v Evans48
a witness was asked in cross-examination when a letter in his
own handwriting was shown to him, - “Did you not write that letter in answer to a
letter charging you with forgery?”. The decision of the Lord Chief Justice Jervis, was
that the question was inadmissible as an attempt to get in the contents of a document
without producing the document itself. Upon argument of a rule nisi for a new trial
the Court of Common Bench upheld the decision of the Lord Chief Justice.
44
At p.90 and following and at pp.110-111. 45
1 Aust. Bar Review at pp.57-58. 46
(1935) 35 SR (NSW) 498 at 508-509. 47
(1856) 1 Hurl & No.1: 156 ER at 1093. 48
(1852) 11 C.B. 929, 138 ER 742
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That was the position at common law. Today, such a question would offend s.44 of
the Act because the cross-examiner would be attempting to “… question a witness
about a previous representation made by a person”49
other than the witness when
evidence of the representation (the other letter) had not been admitted and the Court
would not be satisfied, because of its unavailability, that it would be admitted.
Rule 21
21. In certain circumstances counsel may be given leave to cross examine his or her
own witness by means of leading questions in conformity with the terms of a
witness statement earlier made by the witness in the course of the preparation
for the trial. Such leave may be limited to cross examination as to the facts
recorded in the statement in writing without any corresponding leave to cross
examine the witness generally.
Commentary
This may be considered to be an exceptional approach however it is based upon a
procedure adopted by Sir Owen Dixon when sitting as single judge of the Supreme
Court of Victoria in R v Neal, Regos and Morgan50
. This procedure was discussed by
the Victorian Full Court in R v Thynne51
. It must be remembered that s.37 of the Act
in terms gives the court power to grant leave to put leading questions to a witness in
examination in chief. This provision is rarely if ever used although it is suggested that
it has the potential to be relied upon instead of the procedure adopted by Sir Owen
Dixon on R v Neal, Regos and Morgan (supra).
Rule 22
22. Section 38 of the Act enables a party who called a witness to question the witness
as though the party were cross examining the witness about evidence given by
the witness that is unfavourable to the party or 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 his or her evidence in chief, making a genuine
attempt to give evidence whether or not the witness has at any time made a prior
inconsistent statement.
Commentary
Section 38 of the Act could now be relied upon in lieu of the procedure adopted by Sir
Owen Dixon in R v Neal (supra).
PREVIOUS REPRESENTATIONS IN DOCUMENTS MADE BY A PERSON OTHER THAN
THE WITNESS UNDER CROSS EXAMINATION
49
(1852) 11 C.B. 929 (Vol 138) 50
(17 April, 1947) reported only in 1947 ALR 616 51
(1977) VR 98.
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Rule 23
23. If the cross examination is concerned with a previous representation in a
document made by a person other than the witness, then s.44 of the Act codifies
the position.52
In particular either one or other of only two courses may be
followed. If the document is in evidence or the court is satisfied that it will be
admitted into evidence then the witness can be cross examined about a previous
representation alleged to have been made by a third party.
Commentary
In John Morris Cross53
the Group Managing Director of a company had been
charged with insider trading in the company‟s shares. The trial judge had permitted
the appellant to be cross-examined about a document which he had not seen and
which related to a telephone conversation between him and a member of the Institute
of the Directors, despite the fact that the appellant had not agreed that the contents of
the document were true and the author the document was not called as a witness.
Upon the defendant‟s appeal against his conviction and allowing the appeal it was
held that the proper course in relation to this disputed document was for the judge to
send out the jury, for the appellant to be permitted to read the document and indicate
whether or not the contents were true and only if he agreed that they were true could
he be cross-examined upon the document. The perceived vice in the approach
sanctioned by the trial judge was considered to be that the effect of that kind of cross
examination was to enable the prosecution to attempt to persuade the jury that a
statement had been made contradicting the appellant‟s account without calling the
author of the document as a witness. The conviction was set aside.
52
S.44 provides:
Previous representations of other persons (1) Except as provided by this section, a cross-examiner must not question a witness about a previous
representation alleged to have been made by a person other than the witness.
(2) A cross-examiner may question a witness about the representation and its contents if:
(a) evidence of the representation has been admitted; or
(b) the court is satisfied that it will be admitted.
(3) If subsection (2) does not apply and the representation is contained in a document, the document
may only be used to question a witness as follows:
(a) the document must be produced to the witness;
(b) if the document is a tape recording, or any other kind of document from which sounds are
reproduced--the witness must be provided with the means (for example, headphones) to listen to the
contents of the document without other persons present at the cross-examination hearing those
contents;
(c) the witness must be asked whether, having examined (or heard) the contents of the document, the
witness stands by the evidence that he or she has given;
(d) neither the cross-examiner nor the witness is to identify the document or disclose any of its
contents.
(4) A document that is so used may be marked for identification.
53
(1990) 91 Cr.App.Rep. 115
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Cases such as Cooper (supra) and Cross (supra) and others show that the courts
should be astute to prevent improper practice involving the use of inadmissible
documents particularly when the way in which the rules are formulated puts a
premium upon the knowledge by lay people of the complex rules the subject of this
paper.54
Had the documents in John Morris Cross (supra) been earlier admitted into evidence
then different considerations would apply. In that event the cross-examination would
have been permitted subject to it meeting the test of relevance in Section 55 of the
Act. Counsel should be astute to ensure that Section 44 is not abused and that non-
relevant cross-examination of a witness upon documents made by third parties should
not range beyond the boundary of relevance.
Rule 24
24. If the document is not in evidence and will not be admitted into evidence then the
procedure in s.44(2) must be followed and the following steps taken:
The document must be produced to the witness.
The witness must be asked whether having examined the contents of the
document the witness stands by the evidence that he or she has given.
Neither the cross examiner nor the witness is to identify the document or
disclose any of its contents.
Commentary
Section 44 of the Act was examined in some detailed by Austin J in an interlocutory
judgment in ASIC v Rich (2006) NSWSC 643. Counsel for ASIC had proposed a
procedure by which ASIC would identify a particular part or parts of Mr. Rich‟s
evidence that was to be the subject of further questions and provide a copy of
documents not currently in evidence and which ASIC did not propose to tender to
counsel for Mr. Rich but not to the court and then show the documents to Mr. Rich
giving him time to examine their contents after which time counsel for ASIC would
ask Mr. Rich whether having examined the contents of the document he stands by the
evidence that he has given. The procedure involved taking care not to identify the
documents or to disclose their contents and was referred to as the “R v Orton
procedure”.
After giving notice of the intended procedure ASIC was met by an application by Mr.
Rich based upon s.26 of the Act for directions that ASIC refrain from implementing
the R v Orton proposal. The trial judge gave a direction to ASIC not to make use of
any of the documents covered by sections 19 and 597 of the Corporations Act. Save
for that direction the matter was left in abeyance, the judge not being “… satisfied that
the overall application of the principles under consideration to s.43 had been fully
researched …” the matter was then left on the basis that the parties would prepare
54
The Court of Criminal Appeal in John Morris Cross (supra) pointed out that Mr Cross “… had no idea that
the contents of the document he was being cross examined about were not admissible unless he said they were
true.” This is one of a number of forensic exchanges in which knowledge by a witness of the relevant
procedural rules places him at a considerable advantage over the witness who does not possess that knowledge.
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submissions if ASIC wished to proceed in some other way under s.43. In fact nothing
further was heard of the ASIC approach and the matter was left where it stood at the
time his Honour gave his judgment.
The judge did however refer to questions of unfairness to the witness and laid
particular emphasis upon that feature of the procedure. He referred to “… the element
of surprise that arises in confronting a witness with a document not previously seen by
the witness. Another is that, in the circumstances applying in cross examination, a
document of no inherent credibility might be given an undue aura of authenticity or
weight. That leads to a third problem, namely that the procedure places great pressure
on a witness to make an admission that he is really not bound to make.” (See
paragraph 23 of the judgment).
His Honour referred to a decision of the Western Australian Supreme Court in
Government Employees Superannuation Board v Martin55
in which counsel had
shown a witness an extract from a transcript of evidence given on a previous occasion
by an unidentified person. Although the R v Orton procedure had not been precisely
followed the Court regarded the approach taken as the equivalent in substance to that
procedure. The witness was persuaded to change his testimony by the unidentified
document. Considerations of fairness were again referred to by Mr. Justice Ipp who
said that the basic fairness of the R v Orton procedure is open to question:
“In the present circumstances, the weight to be attributed to Neville‟s reply
when shown the unidentified document is largely dependent on the reliability
of the material he was shown, and in particular whether he was shown his own
evidence or the evidence of some other party, and if the latter, the identity of
the witness concerned. This is all the more so in the light of my perception
that Neville changed his testimony with hesitation and reluctance.
In the result the Judge placed “little confidence” on the reliability of the changed
testimony.
However that may be the fact remains that the provisions of s.44(2) statutorily encase
the R v Orton procedure. Two questions therefore remain for consideration. The first
of those is the matter of weight as was addressed by Mr. Justice Ipp in the Western
Australian decision in Martin (supra). The second is whether or not in appropriate
circumstances s.26 of the Act can trump s.44(2). Section 26 provides as follows:
“The Court may make such orders as it considers just in relation to:
(a) the way in which witnesses are to be questioned; and
(b) the production and use of documents and things in connection with the
questioning of witnesses; and
(c) the order in which parties may question a witness; and
(d) the presence and behaviour of any person in connection with the
questioning of witnesses.”
55
(1997) 19 WAR 224
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The matter is not entirely clear although it is suggested that s.44 is clearly a more
specific provision than the general nature of the power conferred by s.26.
It is helpful to recognise that s.44 is conditioned upon evidence of the third party
representation either having been admitted or the court being satisfied that it will be
admitted. In that respect the section is conformable with the rule in The Queens case.
Section 44(3) prescribes the only way a witness may be questioned in cases where the
evidence of the representation has not been admitted or the court is not satisfied that it
will be admitted, it must be borne in mind that sub-section 2 of permitting the cross
examination of a witness "about" the representation of another does not prescribe the
manner in which that cross examination is to be carried out.
The answer to that question is to be found in the application of other rules. It can
immediately be appreciated that in some cases the cross examination of a witness
upon a representation made by another which has been admitted into evidence,
thereby satisfying the requirements of s.44(2), will not be of much if any benefit. It
will rapidly become clear to the court whether or not such a cross examination is
likely to be bear fruit. For example, if the document in evidence happens to be a set of
minutes of a meeting at which the witness was present then the evidence of the
witness in connection with those minutes, provided the test of relevance in s.55 is
otherwise met, may well be of value. On the other hand as the connection between the
witness under cross examination and the representation made by the third party
begins to recede, there is an increased likelihood that the witness‟ reactions to or
impressions of that evidence may be valueless. But that is not say that a witness'
reaction to or impression of a document in evidence with which he has little
connection is necessarily irrelevant. For example it may be a legitimate exercise in
cross examination to test the expression of opinion of one witness by seeking to elicit
the evidence of another's opinion upon the same subject. The measuring stick will
always be whether or not the evidence could rationally affect, directly at indirectly,
the assessment of the probability of the existence of a fact in issue in the proceeding.
See s.55 of the Act. Circumstances can readily be envisaged in which a letter written
by a person other than the witness under cross-examination has been admitted into
evidence. It may be that the receipt of that letter by the witness under cross
examination might sensible to thought to have called for comment by the witness or
on the other hand the communication of the information contained in the letter to the
witness under cross examination, may have a direct bearing upon the witnesses'
knowledge, again assuming that the subject matter of such inquiries meets the test of
relevance encoded in s55 of the Act.
Section 44 of the Act overcomes the effect of the decision in for example North
Australian Territory Company v Goldsborough Mort & Company56
where it is said
that a cross examination of a witness as to what was said by some other person in a
document which is not that of the witness ought never to have put. Section 44(3) is
the statutory embodiment of the procedure outlined in R v Orton but it must be
remembered that in contradistinction to s.44(3) the earlier sub-section s.44(2) departs
from the common law and permits cross examination of a witness about a
representation in a document made by another person.
56
(1893) 2 Ch. 381 at 385
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It is suggested that 5.44(2) is supported by sound reasons in principle. As cases like R
v Banks57
make clear:
“There is another objection of a more formidable character, namely, that the
contents of the correspondence between the appellant and the woman Smith,
were elicited from him. It undoubtedly is open to considerable question
whether that cross examination was strictly regular. The court thinks that it
was not regular to insist that the appellant should give an answer concerning
the contents of a letter which was not produced.”58
See also R v Thompson 59
a witness cannot be cross examined on an inadmissible
statement made by a third party. That “formidable” objection does not apply to those
documents which are embraced by s.44(2) because such documents are already in
evidence.
R v Morgan60
, a decision of the New South Wales Court of Criminal Appeal in a jury
case, is an example of a form of cross examination which offended s.44 of the Act and
which was objectionable in any event. In that case, issues of identification of the
appellant were fought out through photographs of a robbery of the bank branch being
carried out by two persons both of whom were shown on the security camera within
the bank. A number of police officers gave evidence of seeing those photographs and
of identifying the appellant Morgan from them.
The appellant did not give evidence but an expert in the field of photogrammetry, the
science of taking measurements from photographs, was called on his behalf. The
expert‟s evidence was that if his calculations of the offender‟s height were correct
then the offender was not the appellant.
In cross examination, the expert, a Mr. Donnelly, was asked whether he was aware of
another case in which another expert specialist expert in computer imaging had been
involved in estimating heights from a video recording in order to support he
suggestions that that other expert had come to a conclusion different from that
reached by Mr. Donnelly. The Crown Prosecutor asked:
“If I can hand you a report from (the expert in the other case). If I can get you
to look at the summary section?” An objection was then taken. The Crown
Prosecutor in answer to the objection informed the court that his avowed
purpose in cross examination to establish that the appellant‟s expert was
engaged in an “inexact science” and that experts differed in their results.
The Court of Criminal Appeal concluded that the Crown Prosecutor‟s aim was
legitimate (even though there had been no evidence called in the Crown‟s case in
chief). Nevertheless, the court concluded that the form of the cross examination
offended s.44 of the Act and was objectionable for the resaons pointed out by the
High Court in Alister v R61
.
57
(1916) 12 CAR 74 58
Per Avery J at page 75 of the Report 59
(1912) 3 KB 19 60
(2000) NSWCCA 7 61
(1983-83) 154 CLR 406 at 464
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The trial judge indicated that he would allow further questions and when cross
examination resumed Mr. Donnelly was taken to the report of the other expert which
was again described in front of the jury and he was taken to the response to that
report. Mr. Connelly agreed that the other expert had reached a different conclusion
in that case from Mr. Donnelly and his co-author.
The Court of Criminal Appeal concluded that adherence to the requirements of s.44
proscribed the identification of Dr. Lowe's report and its contents and that the jury
should not have been informed of the other experts conclusions, their authorship and
by implication the authority behind them.
The Court said that:
"The jury's knowledge of these matters, obtained by the questioning in breach
of s.44, might well have led them to place less, and considerably less, weight
on the principal evidence which Mr. Donnelly was called to give. Thus the
Crown derived a significant advantage in consequence of the breach of s.44.62
In Aslett v Regina63
the New South Wales Court of Criminal Appeal said that:
"Section 43(2) is not intended to cover every instance of reliance on a prior
inconsistent statement of a witness or to deal in general terms with its
admissibility. The purpose of the section is to ensure that if a party intends to
adduce evidence of a prior inconsistent statement "otherwise than from the
witness" that the witness refuses to acknowledge, that party may only do so
after drawing to the witnesses attention the circumstances of the statement so
that the witness can identify it and the inconsistency the cross examiner is
asserting. The purpose is to ensure that such a witness has a proper
opportunity to consider precisely what he or she is asserted to have said and
precisely how that is asserted to be inconsistent with what the witness now
says. Sub·section 2 is in its terms limited to the things that must happen when
a witness does not admit having made an inconsistent statement. It says
nothing about what mayor must or must not happen in other circumstances, for
example, where the witness admits having made a prior inconsistent
statement." (at paragraph 75 of the judgment)
"Sub-section 2 draws on pre Evidence Act 1995 law about the use of prior
inconsistent statements. Before the commencement of the present Evidence
Act such statements, when admissible, were relevant only to the credit of the
witness who made them. If their making was admitted, therefore, there was no
purpose in tendering them: Alchin v Commissioner for Railways (1935) 35 SR
(NSW) 498. Under the modem law. on the other hand, there is a purpose in
tendering such statements beyond any attack on credibility, namely proof of
the fact asserted: 5.60. Nothing in s,43 is directed to the admissibility of any
prior inconsistent statement to prove the truth of its assertions. All sub-section
2 does is ensure that a witness who is about to be attacked on credit is fairly
62
See paragraph 59 of the judgment 63
(2006) NSWCCA 49
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dealt with. Nothing in 5.43 purports to limit the effect of sections 38. 103 or
60."
The court rejected the appellant's submission that evidence of a witness‟ prior
inconsistent statement became admissible only if the witness did not admit making
them.
The decisions of the High Court in Nicholls v The Queen and Coates v The Queen 64
are clear examples of the consequences of the cross examiner's failure to comply
with the statutory equivalent of the statutory requirements now embodied in s.43(2)(a)
and (b).
In that case, a Western Australian appeal, the High Court was required to consider the
terms of s.21 of the Western Australian Evidence Act, (the equivalent of the former
section 55 in New South Wales and the current s.43 in New South Wales.) (The rule
in the Queen's case is described in Nicholls and Coates as the "seminal case on proof
of inconsistent statements') (see paragraph 87). In that case the High Court said that:
"Fairness requires that a person who makes such an imputation ~'imputing
bias or corruption to a witness" should put the matters giving rise to it in
sufficient detail to the witness so that the witness understands the allegations
and those matters and has an opportunity to deny or explain them." (see
paragraph 88, see also paragraphs 188 and 189)
At the trial counsel for Nicholls put to a witness for the crown in cross examination:
"Did you at any time - do you recall a conversation that went along the lines of
this: that you had told somebody the story you had given to the police about
Marty Coates and Thomas Nicholls being present in the room in which Clare
Garabedian was killed was all b ... s .... ? --- No.
Do you recall saying in a conversation that is was also b ... s ... that Marty
Coates had gone to Northbridge to point Clare Garabedian out to you? --~ No,
I never said that.
Did you in conversation say that the police had told you what to say in order to
implicate others? --- No.
Did you say in a conversation that you had given Clare Garabedian two shots
and that Marty Coates knew nothing about it? --- No.
Did you say in a conversation that the police had offered you a deal if you
cooperated and implicated Marty Coates and others in the murder? --- No."
(see paragraph 130 of the judgment)
In the judgment of Gummow and Callinan JJ it was pointed out that:
64
(2005) HCA
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"It can be seen from it that the cross examiner made no attempt to identify
Ross, or the date, place, or occasion of the alleged statements although the
substance of them was put clearly enough," (see paragraph 167 of the
judgment)
Their Honours went on to say;
"As Hayne and Heydon JJ have demonstrated, both the common law and
many enactments dealing with the proof of the making of prior inconsistent
statements to damage the credit of a witness, insist upon observance of such a
precondition." ("that is it is a "... precondition of the admission of that
evidence, that the accused or his counsel has put. with particularity, the time,
place and other relevant circumstances of the making of the statements
revealing the corrupt intention."
On the hearing of the appeal the appellants conceded that the trial judge had been
correct in rejecting this evidence because it failed to comply with the requirements of
s.21 of the Western Australian Evidence Act there being no identification of place,
time or speaker nor any precise identification of what Davis allegedly said.
In order to overcome this difficulty the appellants had argued that they were not
relying on the prior inconsistent statement exception to the rule that Davis' answers to
questions on collateral matters were final but on the bias exception to the rule about
the finality to answers on collateral ma~ Thus it was said that the appellants only had
to comply with the rule in Brown v Dunne 65
and that had been accomplished by the
questions put to Davis during cross examination. The High Court assumed for the
purposes of the argument and without deciding that the rule in Brown v Dunne had
been complied with and then went on to analyse the rule in the Queen‟s case.
Abbott CJ in the Queen's case giving the unanimous answers of the judge had said;
"The legitimate object of the proposed proof is to discredit the witness. Now
the usual practice of the courts below, and a practice, to which we are not
aware of any exception, is this; if it be intended to bring the credit of a witness
into question by proof of anything that he may have said or declared, touching
the cause, the witness is first asked, upon cross examination, whether or not he
has said or declared, that which is intended to be proved. If the witness admits
the words or declarations imputed to him, the proof on the other side becomes
unnecessary; and the witness has an opportunity of giving such reason,
explanation, or exculpation of his conduct, if any there may be, as the
particular circumstances of the transaction may happen to furnish; and thus the
whole matter is brought before the court at once, which, in our opinion, is the
most convenient course. If the witness denies the words or declaration imputed
to him, the adverse party has an opportunity, afterwards, of contending, that
the matter of the speech or declaration is such, that he is not to be bound by
the answer of the witness, but may contradict and falsify it; and, if it be found
to be such, his proof in contradiction will be received at the proper season."
(Quoted with approval by Hayne and Heydon JJ at paragraph 275)
65
[INSERT]
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Rule 25
25. If a document which is put into the hands of the witness by the cross examiner is
a privileged document and the cross examiner asks questions of the witness
about such document, then the action of the cross examiner in doing so will
amount to waiver of any privilege attaching to the document. This will be so not
only as regards those parts of the document upon which the cross examination
has been based but also as to the whole document.
Commentary
Rule 26
26. Where the inconsistent statement upon which the cross examination is based is
part only of the document then the cross examiner can only be obliged to tender
that part of the document which the cross examination was based.
Commentary
Rule 27
27. However counsel who called the witness to give evidence in chief is entitled to
tender other parts of the document which are so connected to the parts cross
examined upon that they are necessary to explain that part of the document.
Commentary
Rule 28
28. Where the cross examiner merely produces any document to a witness, that is to
say either shows the document to the witness or places that document in the
witness’s hands, the cross examiner is not as a consequence thereof, obliged to
and cannot be forced to tender the document.
Commentary
But what occurs if the cross-examiner does more than place the document containing
the previous inconsistent statement in the hands of the witness?
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Section 45 of the Act demands consideration of s.55 of the New South Wales
Evidence Act and of the New South Wales decision in R v Jack66
. That case or rather
the head note to the report of that case has been a source of concern to New South
Wales practitioners ever since the case was first reported. The head note has been
frequently relied upon to force counsel who places in the hands of a witness the
document upon which he or she is cross-examining, to undertake to tender the
document. It is another example of the tender trap. The head note to the case reads:
“If counsel in cross-examination puts the witness‟ deposition, taken at the police
court, into his hands, and asks him whether, after looking at it, he adheres to his
former statement, the depositions must be put in evidence, even though the object
of counsel be merely to refresh the memory of the witness.”
The facts in the case were that counsel for the accused on trial for his life in a murder
case was in the act of placing in the hands of the witness for the Crown, the witness‟s
original deposition, having called on the Crown for it, saying “Look at your
deposition, and say whether you adhere to what you have said. Is not the word „stab‟
in your depositions?” It seems that the witness had previously said the word „stab‟
was not used in the depositions.
Mr Justice Windeyer giving the judgment of the court said:
“When counsel did this he was clearly making use of the depositions in a way
which was calculated to create the impression in the minds of the jury that the
witness, in giving his evidence at the police court, had made use of the word
„stab‟. His Honour was, therefore entirely correct in the course he took, and
acted on the law laid down in R v Ridout67
and in cases in England decided
before that case. The law laid down and established in that case was, that if
cross-examination counsel makes use of a position in this way by putting it
into the witness‟ hands, he must put in in evidence, even though he ostensibly
makes use of the deposition for the purpose of refreshing the witness‟
memory. The reason of the rule is that if the putting in of the deposition were
not insisted upon, a false impression might be conveyed to the jury that the
witness had sworn something different at the police court from the evidence
that he was then giving in court, whereas the deposition and evidence might be
exactly the same. It is said, however, that this should be allowed if it is the
bona fide intention of counsel to refresh the memory of the witness. Such
might be the intention of counsel, but with what object? The object of so
refreshing the witness‟ memory was not to establish him as a witness who is to
depended upon, but, if possible, to show that he was not, because he gave one
account of the transaction at the trial, and another before the Police Board.
The object was to show that he had given a different if not a contradictory
account of the transaction, and thus destroyed the value of his evidence.
Therefore it has been laid down that if an attempt is made to use depositions in
this way, or part of them, the whole depositions must be put in. The law on
this point is thus stated in R v Ridout68
:
66
(1894) 15 LR (NSW) 196 67
SMH 3rd
May 1854 68
supra
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„A party may refresh the memory of his own witness by his own
deposition, because it is fair that he should be allowed to correct an
innocent mistake...But it would be unjust that a cross-examining
counsel should put the depositions into the witness‟ hands and then ask
him if he adhered to his statement without putting the deposition in
evidence before the jury, because he might insinuate by his manner of
cross-examination that the statement was different from the deposition,
without letting the jury see, by inspection of the document, that the
testimony of the witness on one occasion was inconsistent with his
evidence on the other.‟”
M. H. McHugh QC as he then was suggested that Jack‟s case was wrongly decided as
the effect of it was to completely deny the effect of s.55 of the former New South
Wales Evidence Act 1898. See Australian Bar Review69
. To the same effect is an
article written by D. K. Malcolm QC as he then was, published in Australian Bar
Review70
. Then there is the dictum of Samuels JA in Madison v Goldrick71
expressly
doubting the correctness of the decision.
In his article in the Australian Bar Review Mr McHugh QC suggests that Jack‟s case
was decided on a much wider ground than was necessary. That wider ground referred
to in Mr McHugh‟s interesting remark may have been either that the court could have
disposed of the case by justifying the tender of the document on the basis that cross-
examining counsel had called for the document from the possession of the other side
and was therefore subject to the other side requiring the tender of the document or
alternatively the narrow ground may have been that the error made by counsel was to
specifically identify the document in the presence of the jury.
Two important questions then arise for decision. Firstly, does s.45(5) of the Act alter
the position? Secondly, what is the proper course to be taken by counsel in similar
circumstances?
Rule 29
29. But if the cross examiner does more than place the document containing the
previous inconsistent statements in the hands of the witness he may, depending
upon the steps in fact taken be obliged to tender the document.
Commentary
69
Vol.1 No.1, p.54 70
Vol.2 No.3 at p.271 71
(1976) 1 NSWLR 651 at 660
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Rule 30
30. The head note in the much discussed decision in R v Jack
72 suggests that merely
to place the witness’s deposition into the hands of the witness and to ask the
witness whether or he or she after looking at it adheres to his former statement,
therefore obliges the cross examiner to put the document into evidence is an
incorrect statement of the law.
Commentary
Jack‟s case can only be properly understood by bearing in mind that counsel for the
accused in that case took the following steps:
He called for the documents (presumably by accurately describing them) from
the possession of the prosecutor.
He placed the documents in the hands of the witness being cross examined.
He specifically identified the documents in the course of his questions
addressed to the witness.
He asked a specific question about a word said to appear in the depositions.
All of those actions and statements were in the presence and hearing of the
jury.
Rule 31
31. Now, s.45(5) of the Act removes the justification if it ever properly existed, for
citing Jack’s case as authority for the proposition appearing in the head note.
Commentary
Jack‟s case (supra) is an example of erroneous head-note law but its effect continues
to this day.
Rule 32
32. However s.45(5) of the Act does not remove the danger that by ill chosen words
the cross examiner might allow into evidence, documents such as the depositions
of a committal hearing, which almost certainly would be highly damaging to his
or her client’s case and which would not otherwise be admissible.
Commentary
72
(1894) 15 LR (NSW) 196
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Rule 33
33. The course counsel should follow in order to avoid the tender trap is to say:
“I would like to show you a document. I would like you to read the
document to yourself and when you have finished doing so I will ask you a
question.”
After the witness has silently read the document counsel should then ask:
“Having looked at the document, do you still adhere to your previous
evidence?”
Commentary
See s.44(3)(c) and (d). That section may correctly be regarded as the statutory
embodiment of R v Orton (supra). See also Birchnall v Bullough73
, R v Sehan
Yousry74
, R v Gillespie75
and R v Beddington76
.
Prior to the introduction of the Act in New South Wales in 1995 the R v Orton (supra)
principle as a rule of practice in New South Wales had been called into question in the
decision of the Court of Criminal Appeal in R v Hawes77
. In that case the court
referred to what “once used to be a common practice – at least in jury trials – for such
a course to be followed in cross-examination and without objection.” But Mr Justice
Hunt, the Chief Judge of the Common Law Division said that he was “never satisfied
as to its validity.” He saw the practice as conveying “the clearest implication in the
question whether, having read it, the witness still adheres to his testimony...that the
document asserts to the contrary of that testimony. As such, it is in clear conflict with
the basic rule of evidence that, subject to the provisions of s.55 of the Evidence Act
[1898] (which applies only where the witness is the author of the document in
question), the contents of a document cannot be proved in this way.” See the
judgment at p.13.
Whilst the matter may not earlier have been free from doubt, since the introduction of
the Evidence Act 1995(NSW), clearly the proper course to be followed is to continue
to apply the practice as originally suggested by the Victorian case of Orton78
which is
now statutorily embodied in s.44(3).
In the CPD series of lectures conducted by the Bar Association of Queensland in 2006
Graham Gibson QC and Declan Kelly severely criticised the rule in R v Beddington
(1970) Qd R 353. In that case the accused had been cross examined at the trial
concerning his knowledge of events after the robbery for which he had been charged.
73
(1896) 1 QB 325 at 326 74
supra 75
(1967) 51 CAR 172 at 177 76
supra 77
(7 November 1994) 78
supra
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The prosecutor showed the accused two newspaper articles and questioned the
accused about the contents of the articles. One of the articles was later tendered. On
appeal the court said:
“The use made of the newspapers … was quite wrong. The limited use which
can be made in cross examination of documents of this kind is or should be
well known. A document made by a person other than the witness, and not
being a document which can be used to refresh memory, may, even if
inadmissible in evidence, be put into a witness‟ hands and that witness may be
asked whether, having looked at the document, he adheres to his previous
testimony. But this is the extent to which the cross-examiner may go; he may
not suggest anything which might indicate the nature of the contents of the
document.”
In Alister v The Queen (1984) 154 CLR 404 at 442-445 the approach in Beddington
was confirmed by Wilson and Dawson JJ who said that:
“Insofar as the accused was not the author of the document, it was
impermissible to ask questions about its contents without observing the rule in
The Queen‟s case … : see Derby v Ouseley …. Most, if not all, of the
documents of this type upon which the impugned cross examination was based
would appear to have been inadmissible and, insofar as that was so, the proper
course under the rule in The Queen‟s case was to ask the accused to look at the
document without identifying it and to ask whether he adhered to his previous
evidence: R v Orton …: Birchell v Bullock …; R v Seham Usery …. If any of
the documents of which the witness was not the author were admissible they
should have been tendered in evidence under the rule.”
The authors of the Queensland paper then went on to refer to the judgement of Hunt J,
the former Chief Judge of the Common Law Division in R v Hawes (1994) 35
NSWLR which contained a criticism of Beddington (supra), Orton (supra) and Usery
(supra).
However the authors then went on to refer to a judgment of Mr. Justice Chesterman in
the Queensland Supreme Court in Southern Cross Mine Management Pty Limited v
Ensham Resources Pty Limited (2005) QSC 233 in which the judge described the rule
recognised in Beddington (supra) as having “only antiquity to commend it”. His
Honour reasoned that “the use of a statement by another witness in the manner
described in Beddington is an improper mode of cross examination. The rule, if it is
allowed to survive, must be limited to documents not of that kind”.
The authors then went on to refer to the reliance by Chesterman J upon what his
Honour described as “a second line of authority which is also relevant to the topic”
and referred to R v Foley (2000) 1 QdR 290 at 297 where the Queensland Court of
Appeal said:
“The resort by counsel to questions which invite a witness to answer by
reference to comment on the truthfulness of other witnesses is to be
deprecated. On a level of professional practice, it is regarded as “not a proper
question”. The error, however, goes beyond one of professional practice; such
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questions are actually inadmissible. The literal object of such a question is to
obtain an opinion whether someone else is a liar, and that of course is not an
issue in the case or a matter for any other witness to express and opinion, it is
a matter for the judge or jury. It is also unfair, because it forces the honest
witness into a recrimination and seeks to rely upon the natural reluctance of a
person to defame another. It is also a form of bullying, using unfair means to
persuade a person to retract his or her evidence. Such evidence is inadmissible
and we agree … that they are improper.”
In North Australian Territory Company v Goldsborough Mort & Company (1893) 2
Ch 381, Lord Escher with whom Lindley and Bowen LLJ agreed held that a witness
could not be shown the depositions of another witness and asked to give evidence
contradicting that witness. The prohibition extended to showing the witness those
depositions and asking him by reference to them to change his own testimony. Lord
Escher said (at page 385):
“But in the present case the witness when examined … was also asked
questions as to what other people had said in the previous examination …; that
is, he was told what they had said, he was asked whether he contradicted their
evidence. Such questions ought never to have been put …”.
It is respectfully suggested that the authors of the Queensland paper have confused
two quite separate circumstances. The so-called rule drawn from Beddington (supra)
and firmly anchored by the procedure in R v Orton (supra) was quite distinct from the
vice referred to in the two Queensland decisions which undoubtedly stated the correct
rule concerning the prohibition upon inviting comment by one witness upon the
question whether another witness is telling lies or has invented something. See also R
v Leak (1969) SASR 172 at 173-174.
Rule 34
34. Section 45 of the Act applies both to the position where the witness himself or
herself is being cross examined about a prior inconsistent statement recorded in
a document and where a previous representation made by another person has
been recorded in a document.
Commentary
This follows from the terms of s.45 itself.79
79
Section 45 provides:
Production of documents
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Rule 35
35. Although s.45(3) of the Act gives the Court power to “give directions as to (the)
use” of the document about which the witness has been cross examined, it is
suggested that in the case of a third party prior representation the code in s.44
applies. Accordingly, where the evidence of the representation has not been
admitted and the court is not satisfied that it would be admitted, then the
mandatory procedure set out in s.44(3) must be followed and the witness “…
must be asked whether, having examined … the contents of the document, the
witness stands by the evidence that he or she has given …” and neither the cross
examiner nor the witness is to identify the document or disclose any of its
contents”.
Commentary
Rule 36
36. A party is not to be required to tender a document only because the party,
whether under this Act or otherwise has called for the document to be produced
to the party or inspected it when it was so produced and the party who produces
a document so called for is not entitled to tender it only because the party to
whom it was produced or who inspected it failed to tender it.
(1) This section applies if a party is cross-examining or has cross-examined a witness about:
(a) a prior inconsistent statement alleged to have been made by the witness that is recorded in a
document; or
(b) a previous representation alleged to have been made by another person that is recorded in a
document.
(2) If the court so orders or if another party so requires, the party must produce:
(a) the document; or
(b) such evidence of the contents of the document as is available to the party;
to the court or to that other party.
(3) The court may:
(a) examine a document or evidence that has been so produced; and
(b) give directions as to its use; and
(c) admit it even if it has not been tendered by a party.
(4) Subsection (3) does not permit the court to admit a document or evidence that is not admissible
because of Chapter 3.
(5) The mere production of a document to a witness who is being cross-examined does not give rise to
a requirement that the cross-examiner tender the document.
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Commentary
In Walker v Walker80
Mrs Walker had commenced proceedings against her husband
for a maintenance order. In her evidence in chief she said that her husband was an
accountant and was in receipt of a certain salary. In cross-examination she was asked
how she knew about this income and she referred to a letter received by her father
from a person who had been making inquiries about Mr Walker and his financial
circumstances in New Guinea. The solicitor who had been cross-examining Mrs
Walker said “I call for that letter.” However over objection the letter was then
admitted into evidence. The effect of the letter was that inquiries made by the author
had shown that Mr Walker was earning the sum of money testified to by Mrs Walker.
The case ultimately found its way to the High Court of Australia. The High Court
held that the solicitor for Mr Walker had been correctly compelled on the application
of Mrs Walker‟s counsel to put the letter in evidence as part of Mr Walker‟s case.
Dixon J as he then was quoted from the judgment of Lord Ellenborough in Wharam v
Routledge81
:
“You cannot ask for a book of the opposite party, and be determined upon the
inspection of it, whether you will use it or not. If you call for it, you make it
evidence for the other side, if they think fit to use it.”
Two important aspects of the judgments in Walker v Walker82
(supra) are of equal
importance. Firstly, by calling for the letter and reading it Mr Walker‟s solicitor
placed himself in a position whereby he could not decline to tender the letter if his
opponent compelled him to do so. Secondly, even though the letter was the clearest
form of hearsay evidence, once it had been admitted into evidence it was received as
evidence of the truth of the facts stated in it.
There has been some doubt expressed as to whether Walker v Walker (supra) applies
in criminal cases, but on principle there is no reason why it should not. Stroud v
Stroud83
, although in R v Weatherstone84
Smithers J rules that it did not apply where
the accused called for the deposition of a crown witness taken at the committal
proceedings.
It also seems clear that Walker v Walker (supra) did not apply where a witness called
by the party producing the document has refreshed his or her memory from the
document either before or in the course of giving evidence and even where the
document has not inspired an actual recollection.
Even since criticism of the decision appeared in the New South Wales Law Reform
Commission‟s working paper on the Course of the Trial, published in 1978, Walker v
Walker has been ripe for abolition. The historical origins of the rule are obscure and
probably date back to the time when discovery of documents between the parties was
in its infancy and the adversarial system with all its dangers of ambush was in the
nature of organised sport such that if counsel wished to inspect his opponent‟s
80
supra 81
(1805) 170 ER 797 82
supra 83
(1963) 1 WLR 1080 84
(1968) 12 FLR 14
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documents he was seen to be assuming whatever risks arose from that course.
Moreover, the rule significantly blurred the distinction between evidence which was
admissible and evidence which was inadmissible. The New South Wales Law
Reform Commission‟s commentary concluded with the remark that “It is difficult to
see that the rule conferred any benefit to the administration of justice.”
The rule was always poorly understood and from time to time practitioners were not
alive to the freedom which was permitted counsel to inspect documents ad hoc during
the course of the trial. For example, in New South Wales an incantation was
developed by resort to which documents are “produced without penalty” or not. The
judgment of Brereton J in R v Skalji85
made it clear that:
“Certainly if a witness uses a document to refresh their memory in the witness
box then that document may be called for and inspected and the party cannot
be compelled to put it into evidence.”
Rule 37
37. The mere inspection of a document does not render it evidence which counsel
inspecting it is bound to put in. The true rule was expressed as follows in Senat v
Senat86
:
“Where a document is used to refresh a witness’ memory, cross-
examining counsel may inspect that document in order to check it,
without making it evidence provided that his or her cross-examination
does not go further than the parts which are used for refreshing the
memory of the witness.”
Commentary
There were doubts about the way in which the rule Walker v Walker applied. For
example, in Victoria if the party producing the document fails to invoke the rule
during cross-examination of the particular witness it has been held that he or she will
not at any later stage be able to require the cross-examiner to tender the document.
See Hatziparadisses v GFC (Manufacturing) Pty Limited87
approved by the Victorian
Court of Criminal Appeal in R v Trotter88
. However the practice in New South Wales
is to allow the party calling the witness to require the cross-examiner to tender the
evidence in writing even after cross-examination has finished and the witness has left
the witness box. See R v Chin89
.
In Queensland McPherson J in R v McGregor90
expressed the view that the decision
in Hatziparadisses (supra) was not entirely consistent with the course adopted by
85
(1972) 2 Petty Sessions Review 1931 86
(1965) P 172 at 177 87
(1978) VR 181 at 183-4 88
(1982) 7 A.Crim.R.8 at p.19 89
59 ALR 1 at pp.16-17 90
(1984) 1 Qd.R.256 at 265
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Alderson B. In Holland v Reeves91
where it was said that the Judge could not compel
cross-examining counsel to put the writing in until he had opened his case.
Although Walker v Walker (supra) has been referred to many times as a tender trap
for young players and has been the subject of many cautionary tales it is puzzling that
the case has excited that much interest in view of the availability of the simple
procedure in s.12 of the former Evidence Act (NSW) (1898). That section enabled an
oral application to be made to the judge for the production of documents in the
position of any person present in court. In the case of refusal such a person is subject
to the same penalties and liabilities as if he had been duly subpoenaed or summoned
for that purpose. When s.12 is properly employed the document is produced to the
court and the party applying for the order then seeks leave to inspect the document
which remains in possession of the court. In those circumstances no question of any
“penalty” can arise. If that procedure had been followed by the solicitor in Walker v
Walker (supra) the case would not have passed into legal folk lore.
Section 36 of the new Act confers the same powers upon the court as did s.12.
Section 36 enables the Court to order a person who is present at the hearing of a
proceedings to produce documents or things even if a subpoena has not been duly
served on him. Essentially s.36 covers the same ground as s.12.
Section 36 of the new Act clearly removes once and for all the dangers presented to
the unwary by Walker v Walker. A question arises whether it has in any respect
ameliorated similar difficulties to advocates by the decision in R v Jack92
, a case
which as “troubled” practitioners and been the subject of criticism for many years.
THE USE OF PRIOR CONSISTENT STATEMENTS
Rule 38
38. A previous consistent statement is admissible, under the common law, to rebut
the suggestion that the evidence of a witness has been deliberately fabricated
since the relevant events.
Commentary
There are two views in the cases. In Coll (supra at 541) it was said that even in such a
case it does not follow that evidence of a prior consistent statement can be given for
the purpose of sustaining the witness‟s credit and that there must be something either
in the nature of the inconsistent statement or in the use made of it by the cross
examiner to enable such evidence to be given.
The alternative view is to be found in Ahmed v Brumfitt93
where Lord Justice Diplock
said that it was clear law that when a witness in cross examination had put to him a
statement which was said to conflict with what he had said in examination in chief “it
91
173 ER 16 at 18 92
(1894) 15 LR (NSW) 196 93
(1967) 120 Sol Jo 32 (CA)
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was always admissible to put to him in re-examination an earlier statement consistent
with what he had said in examination in chief as rehabilitating his credit in respect of
the evidence he had given.”
As was said in I v Western Australia (supra) it is the former view which represents the
law in Australia. In Transport & General Insurance Company Limited v
Edmondson94
the majority followed the observations of Dixon CJ in Nominal
Defendant v Clements quoted above. Justices McTiernan, Taylor and Menzies in a
joint judgment said:
“…the judge at the trial must exercise care in assuring himself not only
that the account given by the witness in his testimony is attacked on
the ground of recent invention or reconstruction or that a foundation
for such an attack has been laid by the party but also that the contents
of the statement are in fact to the like effect as his account given in his
evidence and that having regard to the time and circumstances in
which it was made it rationally tends to answer the attack. It is
obvious that it may not be easy sometimes to be sure that counsel is
laying a foundation for impugning the witnesses account of a material
incident or fact as recently invented, devised or reconstructed story.
Counsel himself may proceed with a subtlety which is the outcome of
caution in pursuing what may prove a dangerous course.”
Rule 39
39. A previous consistent statement is admissible under the common law also to
rebut the suggestion that the witness’s evidence has been an innocent response to
another’s suggestion.
Commentary
Rule 40
40. The mere impeachment of a witness’s testimony in cross examination, without
more, does not render evidence of a prior consistent statement admissible.
Commentary
94
(1961) 106 CLR 23 at 28
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Rule 41
41. Even where a witness has been impeached by the demonstration of a
contradiction or inconsistency between the evidence given at the trial and
something said by the witness on a former occasion it does not follow that
evidence of a prior consistent statement can be given for the purpose of
sustaining the witness’s credit. There must be something more, either in the
nature of the inconsistent statement or in the use made of it by the cross
examiner to enable such evidence to be given.
Commentary
Rule 42
42. Trial judges should “… abstain from too ready an intervention in cutting off
lines of cross examination”. In some cases it is “… impossible to say, in advance
of the cross examination which counsel sought to conduct, that the logical
connection between a fact which might have been elicited and the issue to be
determined was “so slight that the fact is treated as too remote an evidence of it
as inadmissible””: R v Stephenson (1976) VR 376 at 380 Wakeley v R (1990) 93
ALR 79 at page 87 per Curiam.
Commentary
“The limits of cross examination are not susceptible of precise definition, for a
connection between a fact elicited by cross examination and a fact in issue may
appear, if at all, only after other pieces of evidence are forthcoming. Nor is there any
general test of relevant which a trial judge is able to apply in deciding, at the start of a
cross examination, whether a particular questions should be allowed. Some of the
most effective cross examinations have begun by securing a witness‟ assent to a
proposition of seeming irrelevant. Although it is important in the interests of the
administration of justice that cross examination be contained within reasonable limits,
a judge should allow some leeway in cross examination in order that counsel may
perform the duty, where counsel‟s instructions warrant it, of testing the evidence
given by an opposing witness.” Wakeley (supra) per Curiam at page 86.
Other provisions in the Act
Rule 43
43. A broad spectrum of sections in the Act confer wide powers upon the Court in
relation to the questioning of witnesses.
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Commentary
These include “the way in which witnesses are to be questioned …”, the production
and use of documents and things in connection with the questioning of witnesses and
the presence and behaviour of any person in connection with the questioning of
witnesses (see s.26), party may question a witness in any way the party thinks fit
except as provided by Chapter 1, Division 3 of the Act (s.29).
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 a court gives leave (s.32), the Court
may on the request of a party give such directions as are appropriate to ensure that
specified documents used by a witness otherwise than while giving evidence to try to
revive his or her memory are produced to the other party for the purposes of the
proceeding and the court may refuse to admit the evidence given by the witness so far
as it concerns a fact to which the witness so tried to revive his or her memory if
without reasonable excuse the directions have not been complied with (s.34), the court
may disallow a question put to a witness in cross examination or inform the witness
that it need not be answered if the question is misleading or unduly annoying,
harassing, intimidating, offensive, oppressive or repetitive (s.41), a party may put a
leading question to a witness in cross examination unless the court disallows the
question or directs the witness not to answer it (s.42(1)), the court may refuse to admit
evidence if its probative value is substantially outweighed by the danger that the
evidence might be unfairly prejudicial to a party or be misleading or confusing or
cause or result in undue waste of time (s.135) and the court may limit the use to be
made of evidence if there is a danger that a particular use of the evidence might be
unfairly prejudicial to a party or be misleading or confusing (s.136).
Rule 44
44. Recent developments have emphasised the importance of the way in which a
barrister should conduct cross examination consistent with the robust
performance of his or her duties to the client.
Commentary
Attention to this subject was recently stimulated by the decision of the High Court in
Libke v R95
. No doubt influenced at least in part by comments in Libke (supra) the
New South Wales Bar Association‟s amendment to the Bar Rules which introduced a
new r35A has the effect of obliging a barrister not to ask questions or pursue a line of
question in cross examination of a witness if the barrister is of the opinion that the
question or line of questions is misleading or confusing or is unduly annoying,
harassing, intimidating, oppressive, humiliating or repetitive or put to the witness in a
manner or tone that is belittling, insulting or otherwise inappropriate or has no basis
other than stereotype. For example, a stereotype based on the witness‟ sex, race,
culture, ethnicity, age or mental, intellectual or physical disability.
95
HCA 30; (2007) 235 ALR 517 (29 June 2007)
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Cognate to the proposed amended 435A is s275A of the Criminal Procedure Act 1986
(NSW). This is in very similar terms to the proposed r35A except that of those
matters which a judge must consider gender is not included. The section makes it
mandatory the questions which are misleading, confusing, unduly annoying,
harassing, intimidating, offensive, oppressive, humiliating or repetitive or which are
put in a manner which is belittling, insulting or otherwise inappropriate, be rejected.
B.W. COLLINS QC
19 OCTOBER 2009
THE USE OF DOCUMENTS IN CROSS EXAMINATION
PRACTICAL EXAMPLES
EXAMPLE 1:
1. Natalie Palmer, a witness called by the Crown in a criminal trial asserted that she had
no memory of the events which she had recorded in a police statement within days of
the occurrence of those events. The trial took place less than eight months after those
same events. The witness had also given evidence in the committal proceedings three
months before the trial. The Crown applied for leave to cross examine the witness
pursuant to s.38(1) of the Evidence Act 1995.
2. At the trial the appellant Lozano was convicted on a charge of disposing of certain
electrical goods knowing that they had been stolen and two charges of break, enter
and steal.
3. Evidence given by a co-accused who had pleaded guilty to offences which were
related to those with which the appellant was charged gave evidence that he had
broken into a house with another man, stolen the goods which were the subject of the
first count against the appellant, taken the goods back to the house of a man named
Johnson, where Johnson‟s girlfriend Natalie Palmer, was present. Johnson gave
evidence that the appellant had passed the stolen goods out, they had then hidden the
goods whilst they returned to Johnson‟s house to get Natalie Palmer‟s car, picked up
the goods from one house and sold them.
4. Ms. Palmer had given a statement to the police in which she said that the appellant
and another man had asked her for the use of her car but as they were unlicensed she
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said that she would drive them to where they wanted to go, that she had observed the
two men place some items in the boot of her car, that she had driven them to a house,
that the appellant had entered the house and then returned to ask her to drive the car
into the driveway of the house, that she had done so and the two men then carried the
items into the house and when they returned the two men told her they had received
$140.00 for their work.
5. When she was called as the Crown‟s first witness at the trial she was asked whether
she remembered either the appellant or the third man involved being at the house and
she replied:
“Sorry, I don‟t remember. At the time I was using drugs, I had a drug
problem, and I haven‟t got much memory now of what happened around that
time. I have been trying all morning to, you know, bring something back, and
I can‟t, my memory is just totally gone.”
Questions for discussion
Should leave be granted to cross examine Natalie Palmer?
What is the status of Natalie Palmer‟s earlier written statement to the Police?
NOTES:
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EXAMPLE 2:
1. The appellant was convicted on charges of supplying a prohibited drug, cannabis leaf
and two charges of supplying a prohibited drug methyl amphetamine. She was found
guilty on the second and third charges. During her cross examination at the trial the
Crown Prosecutor asked a number of questions relating to the family wealth and a
series of further questions were put to her in which individual assets, income and
household expenditure were all explored. The appellant was contending in effect that
she and her husband were living off social security payments and that their house and
other assets were acquired on borrowed money and that they did not have great sums
of money at their disposal.
2. For its part the Crown was endeavouring to suggest that there was a steady stream of
money coming into the household and that that stream of money could not be
explained by social security payments having regard to the household outgoings
including the ordinary costs of living.
3. In that context the appellant was asked about the sum of $3,000 recorded in her bank
statement and a comment that she had made about “… all of the money we have won
on the poker machines”. She then said that some of the money coming into the house
would have come from poker machines “… probably a couple of grand out of it”.
4. The appellant could not recall where the winnings occurred and said “… we went to
clubs, pubs whatever”.
5. The Crown Prosecutor then asked: “It‟s fair to say isn‟t it, that you have put a lot of
money through the RSL Club?”
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The Appellant answered: “No, I wouldn‟t say a lot of money, no.”
6. The Crown Prosecutor then cross examined the appellant obviously using an
unspecified document and put to the appellant the suggestion that between particular
dates, namely 1 January 1998 and 11 March 1999 at the Bathurst RSL Club she put
$43,087.52 through the poker machines and her husband put $52,671.10 through the
poker machines.
7. It was very clear that the cross examiner was using a document as he read from it a
reference to “turnover” and put other specific material to her. All of this took place
without any objection from counsel.
8. For example, at one stage the cross examiner said to the witness:
“You see that totals almost $100,000 doesn‟t it, what you have put
through the machines during those dates.”
Answer: “I have never put that much money through the machines.”
Obviously the $100,000 referred to was almost the total of the two amounts of money
referred to in the document used in the cross examination.
9. Amongst other things counsel for the appellant objected after the event saying:
“… he had never been put on notice of that intention by the prosecutor (i.e. to
raise the question of poker machine spending).”
10. The trial judge refused an application by the appellant‟s counsel to discharge the jury
and in a five page ex tempore judgement absolved the Crown Prosecutor of any
impropriety or unfairness in connection with the cross examination.
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11. Counsel for the appellant then called a witness who was involved with the RSL Club
and endeavoured to elicit evidence explaining how a relatively minor initial
investment could produce a relatively high turnover figure in poker machines. The
key piece of evidence sought to be elicited from Mr. Flannery was objected to and
rejected, the matter was not pressed any further and there was no cross examination
by the Crown Prosecutor. However, the trial judge did deliver what the Court of
Criminal Appeal described as a Parthian shot:
“Q: I suppose a punter would know, most punters would know what they are
winning or losing at the end of each session wouldn‟t they?
A: Yes, I would think so.”
The Court of Criminal Appeal said that: “… the answer was at least capable of casting
some uncertainty on the credit of the appellant‟s evidence.”
12. Consider the following:
What if any provisions of the Actare engaged?
Was the cross examination in breach of any rule of practice or statutory rule?
Was the Crown required to give notice to the defence of its intention to go into the
question of poker machine earnings?
If you are of the view that a particular rule of principle or practice has been
departed from then what is that rule and how should the matter have been
approached?
NOTES:
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EXAMPLE 3:
1. The appellant was convicted of manslaughter following a trial before a judge and a
jury in the Supreme Court. After an investigation of the murder the appellant and
another man were charged with murder. The other accused then entered a plea to a
lesser charge and was sentenced, it being anticipated that he would give evidence at
the later trial of the appellant.
2. The appellant was convicted for manslaughter was sentenced and appealed. The
original co-accused was called as a witness by the Crown. Leave to cross examine
that witness was granted to the Crown Prosecutor pursuant to s.38 of the Evidence
Act. The witness had claimed when called to give evidence to have no memory of the
relevant events, no memory of going to the victim‟s home unit, no memory of later
being on a motor cycle with the appellant and no memory of any intention to commit
a robbery at the home of the victim.
3. The witness had earlier been interviewed by police and a video recording of the
interview had been made. The recording was admitted into evidence.
4. In that interview, the witness admitted that he went to the victim‟s premises in
company with the appellant, that they had travelled together on the appellant‟s motor
cycle and that there had been an incident near a service station when the cycle
“slipped”. The witness asserted in the interview to the police that at the premises he
had sought to obtain some drug from the victim and had said that the appellant
attacked the victim with a piece of wood and it was the appellant who took a Nintendo
game from the apartment.
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Questions:
Should the record of interview containing those statements be admitted into evidence?
In the sense that the witness claimed extinction of memory was the record of
interview a prior inconsistent statement?
If so, to what issue was the interview relevant?
Was it relevant to a hearsay purpose?
Does Lee v The Queen (1998) 195 CLR 594 which deals with out of court statements
apply?
If not, why not?
Should the trial judge have given leave pursuant to the Crown pursuant to s.38 of the
Evidence Act to cross examine the witness.
NOTES:
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EXAMPLE 4:
1. The appellant was charged with armed robbery with violence involving a robbery by
two persons of a branch of the St.George Bank. The only significant issue in dispute
was whether the appellant was one of those two persons. The appellant did not give
evidence but there was called on his behalf a Mr. Donnelly who was an expert in the
field of photogrammetry, the science of taking measurements from photographs. Mr.
Donnelly‟s conclusion was that if his calculations of the offender‟s height as shown in
the photographs were correct, then the offender was not the appellant. Mr. Donnelly‟s
evidence centred upon photographs of the two offenders which had been taken by a
security camera inside the bank.
2. During the Crown Prosecutor‟s cross examination of Mr. Donnelly he was asked
whether he was aware of another case (which may well have been R v Rozynski
unreported, CCA, 1 February 1996) in which a Dr. David Lowe, who Mr. Donnelly
said he understood was a specialist in computer imaging, was involved in estimating
heights from a video recording, and it was suggested that Dr. Lowe had come to a
conclusion different from that reached by Mr. Donnelly in that case. It would appear
from at least one of Mr. Donnelly‟s early answers that the two used the same or a
similar method although Mr. Donnelly said that one of the methods contained
additional parameters. The evidence also established that Mr. Donnelly was one of
two persons who had signed a discussion or rebuttal of the report Dr. Lowe had
written in that case. Mr. Donnelly gave a non-responsive answer, to the effect that his
co-author had the view that Dr. Lowe‟s method had some serious problems with it.
3. The Crown Prosecutor then asked the following question:
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“If I can hand you a report from Dr. David Lowe. If I can get you to look at
the summary section?”
Objection was then taken.
The Prosecutor indicated that his aim was to establish that photogrammetry was an
inexact science and that experts differed in their results. Defence counsel maintained
his objection.
4. That objection was based upon two stated grounds:
(i) For the difference in results to have any weight one would need to establish
that there was some validity in the other assessment and there was no evidence
of that fact; and
(ii) The witness was being cross examined on someone else‟s document and the
document was not admissible.
5. The trial judge overruled the defence objections. When the cross examination
resumed Mr. Donnelly was taken to Dr. Lowe‟s report which was again described by
the cross examiner. Mr. Donnelly then agreed that Dr. Lowe had concluded that the
height of the person in the previous unstated case was 1.78m and that this differed
from that arrived at by Mr. Donnelly and his co-author by 9cm. Mr. Donnelly went
on to say that the respective methods differed and that different methods would use
different results.
6. In re-examination Mr. Donnelly gave further attention to Dr. Lowe‟s report and said
that Dr. Lowe‟s method was quite different and not safe.
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Questions:
Was the Crown Prosecutor‟s line of questioning relevant?
What are the principles to be applied?
Was the Crown Prosecutor‟s use of the document in conformity with the relevant
rules?
If not, why not?
If not, what should have been done?
What would you do if you were sitting on the Court of Appeal and the accused‟s
objections to the Crown Prosecutor‟s cross-examination were relied upon as the sole
ground of appeal?
NOTES:
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EXAMPLE 5:
1. After a trial by a judge and a jury in the District Court the Appellant was convicted of
aggravated sexual assault in circumstances which need not be detailed for the purpose
of presenting for discussion the problem that arose in that case.
2. The Complainant had made a detailed written statement to the Police. That statement
was never put into evidence at the trial. It was however available to the defence at all
times and the complainant was asked several questions in cross examination by
counsel for the defence about certain parts of the statement.
3. Paragraph 40 of the Statement included the following:
“I talked to Donna about report (sic) this to the police and I finally decided to
report that Murray had assaulted me. I didn‟t tell Donna that Murray had also
sexually assaulted me. Donna organised a baby sitter for … and then followed
me in my car to pick up my son … from his baby sitter …”.
4. Paragraph 40 of the complainant‟s statement was not adverted to during the cross
examination of the complainant by counsel for the accused.
5. When Donna (Singleton) was examined in chief she gave evidence that the
complainant had, “… told me that her ex-husband raped her …”. In answer to a series
of questions by the trial judge Donna repeated her evidence that the complainant had
used the word “rape”. When the judge had concluded his questioning of Donna
(Singleton) he asked both counsel whether there was anything arising out of his
questions. The Crown Prosecutor naturally said no however counsel for the accused
did wish to ask some further questions in cross examination as a consequence
presumably of the judge‟s questions and the witness‟s answers.
“Q. The complainant, and you‟ve already given this evidence, the complainant
never said that her ex-husband had raped her did she?
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A. Yes she did. Her ex-husband told – J…… told me that her ex-husband did
rape her but I didn‟t believe him, believe her and I didn‟t want to go into any
more details because it wasn‟t my business.
Q. You see when I asked you a question ---
A. Yeah I got a little confused.
Q. Maybe if you could read this paragraph, paragraph 40 and just read that
to yourself and indicate if you‟d like to change your evidence?
CROWN PROSECUTOR: Your Honour, the witness is being shown the
statement of the complainant, not the statement of the witness.
HIS HONOUR: Oh come on.
COUNSEL FOR THE ACCUSED: Section 44 your Honour, the representation
---
HIS HONOUR: Section 44. Well what does section 44 say?
COUNSEL FOR THE ACCUSED: The complainant has already given
evidence that she didn‟t ---
HIS HONOUR: Just a moment, just be quiet for a moment please. See you
never told this court that that was somebody else‟s statement.
COUNSEL FOR THE ACCUSED: No your Honour, the provisions ---
HIS HONOUR: Why not?
COUNSEL FOR THE ACCUSED: Because I‟ve asked this witness --
HIS HONOUR: I don‟t care what you‟ve asked this witness. Don‟t you think
that you might let me in on it?
COUNSEL FOR THE ACCUSED: I was trying not to let this particular
witness know --
HIS HONOUR: I don‟t care what you were trying to do. You see I run this
court and I‟m entitled to know the documents that you‟re putting into the
hands of the witness.
COUNSEL FOR THE ACCUSED: Yes. Section 44 allows --
HIS HONOUR: I don‟t care what you‟ve asked this witness. Don‟t you think
that you might let me in on it?
COUNSEL FOR THE ACCUSED: I was trying not to let this particular
witness know --
HIS HONOUR: I don‟t care what you were trying to do. You see I run this
court and I‟m entitled to know the documents that you‟re putting into the
hands of the witness.
COUNSEL FOR THE ACCUSED: Yes. Section 44 allows --
HIS HONOUR: Look I‟m not interested, I‟m asking you for an explanation at
this stage as to why you didn‟t tell me what you were doing.
COUNSEL FOR THE ACCUSED: Because, as I understand section 44, I‟m
entitled to cross-examine the witness about it and --
HIS HONOUR: You may well be, but I‟m entitled to know what‟s going on
and the impression that was given was that the document you were giving to
her was her statement.
COUNSEL FOR THE ACCUSED: I informed the Crown when they had
concerns that --
HIS HONOUR: Well the Crown doesn‟t run this court, I do.
COUNSEL FOR THE ACCUSED: Yes your Honour.
WITNESS: Section 44, I haven‟t got it there.
HIS HONOUR: Q. You‟re asked to read that particular --
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CROWN PROSECUTOR: Your Honour there‟s a legal issue arising out of this
which I really think --
HIS HONOUR: Wait till I just read this first would you? It‟s the old Queen‟s
rule, yeah.
COUNSEL FOR THE ACCUSED: May I carry on your Honour?
HIS HONOUR: Well you already have, you‟ve asked the question. You‟ve
been asked to read that particular statement and say do you want to change
your evidence.
COUNSEL FOR THE ACCUSED: Q. That statement indicates doesn‟t it --
HIS HONOR: No, no, no, you can‟t ask that. You can ask her the question that
you did ask specifically, and that‟s it.
COUNSEL FOR THE ACCUSED: Maybe there should be some legal
discussion about it in the absence of this particular witness.
HIS HONOUR: No there‟s no question about it.
COUNSEL FOR THE ACCUSED: A cross-examiner may question a witness --
HIS HONOUR: Please don‟t, please --
COUNSEL FOR THE ACCUSED: Is your Honour not allowing me --
HIS HONOUR: I am ruling that the question you asked is the proper question
to be asked and that‟s it.
COUNSEL FOR THE ACCUSED: Your Honour won‟t entitle me to go any
further?
HIS HONOUR: No.
Q. Now do you want to change your evidence?
A. No thank – no.
MFI #4 STATEMENT OF COMPLAINANT
COUNSEL FOR THE ACCUSED: Q. And when you indicated now that the
complainant did say that she had been raped, there was no further discussion
about it at that stage?
A. No.
HIS HONOUR: Yes, now what‟s your problem Mr Crown that you want to
raise?
CROWN PROSECUTOR: Your Honour, it‟s a matter which really needs to be
raised in the absence of the jury. It probably won‟t come to very much but it‟s
something that needs to be placed on the record.
IN THE ABSENCE OF THE JURY
CROWN PROSECUTOR: Your Honour, section 44 as I read it says that the
cross-examiner may question a witness about a previous representation
alleged to have been made by a person other than the witness.
HIS HONOUR: Yes, there‟s been some evidence given about that.
CROWN PROSECUTOR: Yes, but as I understand it, what my friend was
talking to in paragraph 44 --
COUNSEL FOR THE ACCUSED: No paragraph 40. Section 44.
HIS HONOUR: Section 44(3).
COUNSEL FOR THE ACCUSED: The paragraph I was taking her to, asked
her to read was paragraph 40.
HIS HONOUR: It‟s merely the old Queen‟s case. It‟s a situation where you
can put a document in front of a witness that‟s not their document and say
“Having read that, do you still adhere to your prior evidence” and that‟s the
only question that can be asked and that‟s clear from the question as well.
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CROWN PROSECUTOR: Yes your Honour, I don‟t wish to take it any further
because my understanding was that my friend was referring to paragraph 44.
HIS HONOUR: Yeah 44, she is --
CROWN PROSECUTOR: Paragraph 44 as opposed to section 44. I couldn‟t
see how paragraph 44 --
HIS HONOUR: Section 44 she‟s referring to.
CROWN PROSECUTOR: No I withdraw the objection.
COUNSEL FOR THE ACCUSED: Your Honour section 44(2) entitles the
cross-examiner to question a witness about the representation of --
HIS HONOUR: And it‟s contents.
COUNSEL FOR THE ACCUSED: Yes, if the representation has been
admitted.
HIS HONOUR: Yes.
COUNSEL FOR THE ACCUSED: So I‟m seeking to cross-examine --
HIS HONOUR: No, you put the document in her hand, not cross-examine her.
You put the document in her hand, but once you put the document in her hand,
all you can do is put the question that you asked.
COUNSEL FOR THE ACCUSED: Yes. In my submission I‟m entitled to
question --
HIS HONOUR: Well I reject your submission. You‟ve asked her the only
question you could ask her.
COUNSEL FOR THE ACCUSED: Your Honour I might seek some
instructions from my client in respect of this exchange that your Honour has
had with me in front of the jury. Would you Honour give me --
HIS HONOUR: Well you can take such instructions as you see fit.
COUNSEL FOR THE ACCUSED: Would your Honour give me five minutes?
HIS HONOUR: No well I‟m bringing the jury back and you can take your
instructions at 4 o‟clock.
IN THE PRESENCE OF THE JURY
NO FURTHER RE-EXAMINATION
WITNESS RETIRED AND EXCUSED
HIS HONOUR: Have you got your instructions yet?
COUNSEL FOR THE ACCUSED: Yes your Honour.
HIS HONOUR: Yeah, what do you want to do?
COUNSEL FOR THE ACCUSED: Make an application for a discharge of the
jury your Honour.
HIS HONOUR: Why?
COUNSEL FOR THE ACCUSED: Because your Honour gave the impression
to the jury that the accused‟s counsel had acted dishonestly by not informing
your Honour of the author of the statement ---
HIS HONOUR: No, not dishonestly.
COUNSEL FOR THE ACCUSED: It was something that I‟m entitled to do
pursuant to s44.
HIS HONOUR: You are entitled to bring it to my attention what you‟re doing.
I decide what the law is, not you and it‟s not for you to put a statement from
somebody else in the witness‟ hand without informing the court.
COUNSEL FOR THE ACCUSED: Without having meant to have misled your
Honour or the court, the issue is that the jury have been given the impression
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that what I did was improper, and in my submission it was not, it was
something that I was ---
HIS HONOUR: Well it was, in my opinion it was.
COUNSEL FOR THE ACCUSED: I would ask your Honour to correct – if
your Honour‟s not prepared to discharge the jury and that application is
pressed, then to at least indicate to the jury that it was something which the
defence counsel was lawfully entitled to do, albeit if your Honour is not of the
view that it was done in the proper fashion.
HIS HONOUR: No, I‟m not going to tell the jury that and I‟m not going to
discharge them.
SHORT ADJOURNMENT”
6. Two grounds of appeal related to the exchange which has been fully set out above.
The first was that the trial judge had erred in rejecting the submission that Donna
Singleton could be cross examined about the contents of a previous representation
made by the complainant. The second was that the trial judge had erred in declining
to direct the jury that defence counsel had not acted improperly. As was observed in
the Court of appeal the two grounds were related.
7. When considering the tactical and forensic considerations in play it is worth
remembering that counsel for the accused had probably elected not to cross examine
the complainant about her conversations with Donna Singleton presumably because
the defence wanted to run the argument that sexual assault was not mentioned and that
this tended to show that a sexual assault as opposed to common assault, had not
occurred.
QUESTIONS:
Was counsel acting within her rights?
Need she have informed the judge before the taking the next step of revealing the
contents of paragraph 40 to the jury?
What if any elements of s.44 are enlivened?
Does s.45 have a bearing upon what happened?
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Was Counsel at fault in putting the document to the witness without the prior
permission from the judge?
Did she transgress s.44(3)(d)?
What is the role if any of s.44(2)?
Is it conclusive that the complainant‟s police statement particularly paragraph 40, had
not been admitted into evidence?
Was Donna Singleton‟s evidence that the complainant told her that “her ex-husband
raped her” relevant?
If so, to what issues?
Was Counsel within her rights in showing the document to the witness without first
getting permission from the judge or informing the judge what she was doing?
Should she have been criticised for going that far?
NOTES:
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EXAMPLE NO. 6:
1. The respondent was severely injured when his car skidded, hit an embankment at the
side of the road and rolled over. The appellant was a shire council which had been
carrying out roadworks at the area where the accident occurred. The trial judge held
that the respondent had skidded in loose gravel on the bitumen roadway and that the
appellant counsel was in breach of its duty of care in failing to clear the loose gravel
off the roadway and to warn of its presence and that that negligence was causative of
the accident. There was a one third reduction for contributory negligence.
2. A police constable gave evidence which if accepted was to make it impossible to
attribute the respondent‟s loss of control of his car to gravel deposited on the
roadway. However the trial judge did not accept the police constable‟s evidence.
3. One reason for the judge declining to accept the police constable‟s evidence was the
evidence of a private investigator who had interviewed the police constable several
weeks after the accident had occurred.
4. Nothing the police constable‟s notebook or in the formal record which the police
constable was obliged to make within a few days of the accident, recorded whether or
not there was gravel on the roadway. It followed that the police constable was giving
evidence as to the condition of the roadway from his unaided recollection. In cross
examination the police officer was asked:
Do you remember saying to Mr. McNabb (the private investigator) that he
road was bitumen, that you had no specific recollection of whether or not there
was gravel or sand on the road?
Objection.
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Counsel for the plaintiff: Unless my friend intends to call Mr. McNabb as a
witness.
His Honour: You can put the matter to him surely.
Counsel for the plaintiff: Your Honour has heard my objection. The question
has been put in a positive way with respect.
His Honour: I will allow it.
Counsel for the plaintiff: Do you remember saying that to Mr. McNabb,
(Constable).
A: No I do not.
Q: Was it the truth?
Objection.
Question rejected.
Q: Was it the truth that as at 26 June 1998 you had no memory of whether or
not it was gravel or sand on the road?
A: I don‟t recall saying that to Mr. McNabb.
His Honour: You‟re not being asked that now.
Counsel for the plaintiff: I‟m asking you was it the truth that as at 26 June
1998 you couldn‟t remember whether or not there was dirt or gravel on the
road?
A: I can‟t answer that.”
5. The private investigator was later called to give evidence which he did along the lines
that when he interviewed the police constable he prepared a detailed file note. When
he was asked to “have a look at this document”, plainly enough with a view to
evidence that the police constable told the private investigator that he could not
remember whether or not there was gravel or sand on the road, the defendant‟s
counsel objected. After argument the judge ruled that evidence to that effect would
be admissible because contrary to the appellant‟s submission what the police
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constable said to the private investigator would be prior inconsistent statement and in
the judge‟s view the police constable had denied its substance.
6. The private investigator gave the evidence. In cross examination it was suggested to
him that the police constable had said that he could not remember there being any
gravel on the bitumen at the scene of the accident even though it is not easy to see
how this would have assisted the appellant counsel. Nevertheless the private
investigator did not agree. The file note was tendered in re-examination but the
tender was rejected by the trial judge.
7. After going through the evidence of the police constable and the private investigator
in some detail and in the course of making his findings the trial judge said that he
thought that police constable was mistaken in his recollection of the state of the
roadway and that he accepted the private investigator‟s account of the conversation
with the police constable.
8. It was common ground that the evidence was relevant only to the police constable‟s
credibility. Thus the provisions of s.102 of the Act were engaged, that section
providing that such evidence is not admissible (called the credibility rule) subject to
certain exceptions. One of those exceptions is s.106(c) of the Act which provides that
the credibility rule does not apply to evidence that tends to prove that a witness has
made a prior inconsistent statement, if the evidence is adduced otherwise than from
the witness and the witness has denied the substance of the evidence.
9. A precondition to the admission of that evidence derives from s.43 of the Act so that
if the witness has been cross examined about a prior inconsistent statement alleged to
have been made by the witness and does not admit the making of the prior
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inconsistent statement, the cross examiner cannot adduce evidence of the statement
otherwise than from the witness unless in the cross examination the witness has been
informed of enough of the circumstances of the making of the statement to enable the
witness to identify it and the witness‟s attention has been drawn to so much of the
statement as is inconsistent with the witnesses‟ evidence.
10. In its submissions in the Court of Appeal the appellant contended that the
precondition was not satisfied because the circumstances of making the statement
were not sufficiently stated. The judge rejected that submission and the Court of
Appeal ruled that the trial judge was correct to do so.
11. The appellant further submitted that there had not been a denial of the substance of
the evidence to be given by the private investigator.
12. The trial judge had said:
“On my reading and overall impression of the police officer‟s evidence, I
come to a contrary view. It seems to me that the provisions of s.43 have been
enlivened (counsel for the shire) submitted that under s.106 of the Evidence
Act what was required as a foundation for the evidence now sought to be
elicited is that the witness has denied the substance of the evidence which Mr.
McNabb (the private investigator) is expected to be about to give. In my
opinion, he has denied that substance.”
13. The Court of Appeal, no doubt inclined to the view that the judge‟s comments needed
to be buttressed somewhat said that:
“This part of the ruling should be understood in the light of the judge‟s
observation, made in the course of final submissions, that his impression of
constable Carol‟s response are of non-remembrance was that it amounted to “I
didn‟t say that”. The judge said in the ruling that, in his opinion, constable
Carol denied the substance of the evidence Mr. McNabb was expected to give.
Material to the opinion was the way Constable Carol gave his evidence. The
judge was in an advantageous position in so concluding, and (in the opinion of
the Court of Appeal) no error has been show in the ruling.”
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Questions:
Do you think that there had in fact been a denial of the substance of the evidence the
private investigator was expected to give?
Is this a case at the margin?
Was the evidence of the private investigator relevant only to the police constable‟s
credibility?
Was the exception to the credibility rule in s.106(c) correctly engaged?
NOTES:
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The limits of cross examination – Wakelely
FURTHER EXAMPLES
1. A consultant retained by a construction company to assist in the preparation of a claim
against a large government instrumentality arranges a meeting with the construction
company‟s principal engineering consultants to try to ascertain whether the actions of
the government instrumentality caused a delay and relevant extra cost to the
contractor. One of the engineering consultants says:
“The actions of the government instrumentality did not delay us (and by
inference they therefore did not delay the contractor).”
2. The consultant makes a detailed note of his discussion with the engineer. That note is
then produced both on discovery and in response to a subpoena which specifically
called for notes of that character.
3. The note:
Contains a facsimile heading at the top of each page which indicates that the
contractor sent the facsimile to a stated fax number on a particular day and at a
particular time.
Contains a heading setting out the name of the construction firm and the name
of the two principal engineers suggesting that the document is in the form of
conference notes.
The cover sheet is signed “Sam Wilson”.
4. Sam Wilson is not called. The two engineers are not called. There is evidence that
Sam Wilson is retained by the contractor. What use can be made of this document?
EXAMPLE 2
5. This relates to the same meeting but there is a twist. Mr. Wilson is called to give
evidence.
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EXAMPLE 1
R v Emilio Lozano – BC9702441
EXAMPLE 2
R v Lisa Bevan [2000] NSWCA 224
EXAMPLE 3
R v Jason Lee Rees – BC200100279
EXAMPLE 4
R v Morgan [2000] NSWCA 7
EXAMPLE 5
R v S [2003] NSWCCA 122
EXAMPLE 6
Copmanhurst Shire Council v Watt – BC200505309