LAW OF EVIDENCE. Alex Kuklik

Transcription

1 LAW OF EVIDENCE Alex Kuklik

2 Alexander Kuklik 12 Wentworth Selborne Chambers (02)

3 What is this course about? The Law of Evidence (see overview) How to adduce evidence Admissibility of evidence Proof What existing knowledge does it build on? Knowledge of application of legislation Knowledge of interpreting legislation, including through case law Knowledge of substantive areas of law

4 Today Introduction Background to the UEL Relationship between UEL and CL Dispensing with rules of evidence Voir dire

5 Today Adducing evidence (Chapter 2 UEL + KOP) Calling a witness Competence and compellability Sworn and unsworn evidence Examination in chief Cross-examination Re-examination and re-opening

6 Introduction What is evidence law? The rules applied in courts relating to the receipt of material to prove facts What material a court may consider in determining factual issues How that material can be presented in the court How the court decides the factual issues on the basis of the evidence

7 Introduction Where is evidence law from? Traditionally common law. Some rules have existed from Middle Ages, but generally developed by common law judges in 17 c and 18 c Complex rules relating to competency Hearsay Opinion Character evidence

8 Introduction Where is evidence law found now? UEL jurisdictions: NSW: 1995 Commonwealth: 1995 Tasmania: 2002 Norfolk Island: 2004 Victoria: 2008 (NSW + Cth amended at same time) ACT: 2012 Northern Territory: 2013

9 Introduction Where is evidence law found now? Queensland: Common law Evidence Act Covers: Witnesses and examination of witnesses Means of obtaining evidence Use of AV links Proof of documents Admissibility (limited) Reproduction of documents QLRC conducted review of the UEL Tabled 2005

10 Introduction Where is evidence law found now? Western Australia: Mainly common law Evidence Act WALA committee conducted review of the UEL Tabled 1996 Recommended adoption of UEL with retention of some WA provisions

11 Introduction Where is evidence law found now? South Australia: Mainly common law Evidence Act Covers: Witnesses and examination of witnesses Proof of documents Admissibility (limited) Reproduction of documents

12 Introduction Where is evidence law found now? Under s 79 of the Judiciary Act 1903 (Cth), the laws of each state or territory including the laws relating to procedure, evidence, and the competency of witnesses are binding on all courts exercising federal jurisdiction in that state or territory. The effect of this is that the courts of the states and territories, when exercising federal jurisdiction, apply the law of the state or territory rather than the Evidence Act 1995 (Cth), except for those provisions that have a wider reach. The passage of the Evidence Act 1995 (Cth) therefore has had the effect of achieving uniformity among federal courts wherever they are sitting, but there is no uniformity among the states or territories when exercising federal jurisdiction. E.g.: a Brisbane barrister defending a client charged with a federal crime before the Queensland Supreme Court would use that state s evidence law; but would use the Evidence Act 1995 (Cth) if appearing before the Federal Court, the Federal Magistrates Court or the Family Court on a different matter the following day.

13 Background to the UEL Australian Law Reform Commission (ALRC), Evidence Interim Report (No. 26) (1985) nonyms=0&query=alrc%20evidence ALRC Evidence Final Report (No. 38) (1987) Uniform Evidence Law (ALRC Report No. 102, NSWLRC Report No.112, VLRC Final Report, 2005) ml#03

14 Background to the UEL Recent amendments: From ALRC 102 Model Uniform Evidence Bill was approved by the Standing Committee of Attorneys-General in July 2007 Evidence Amendment Act 2007 (NSW) Evidence Amendment Act 2008 (Cth) Commenced on 1 Jan 2009

15 People in the trial The trial process Role of the judge Differences between civil hearings and criminal trials - dictionary Structure of a trial

16 Relationship between the Evidence Acts, the common law and other statues The act is not a code: Does not affect the operation of other acts s 8 Cth provision is more complex Does not affect operation of common law or equity unless done expressly or by necessary intendment s 9 But held to cover the field and therefore be a code in relation to: Chapter 3 Admissibility: Telstra Corp v Australis media Holdings (No 2) (1997) 41 NSWLR 346 Competence and compellability: R v Grasby (2000) 115 A Crim R 465

17 Dispensing with the rules of evidence Can be dispensed with by consent s 190(1): Part 2.1, Divisions 3, 4, 5 Part 2.2, 2.3 Part But consent in criminal proceedings is limited Court can dispense with these provisions in civil proceedings s 190(2): If matter not genuinely in dispute Application would involve unnecessary expense or delay

18 Voir dire Section 189 hearing within a hearing to establish preliminary questions. In criminal proceedings jury not to be present if relates to an admission or potentially improperly obtained evidence s 189(2) In other cases the jury is not to be present unless the court orders s 189(4). Factors listed in 189(5). Can be used in civil and criminal proceedings. In other circumstances common law determines when a voir dire can occur and the procedural matters not dealt with by s 189.

19 Chapter 2 Adducing evidence Chapter 2 deals with adducing evidence How do you get it in? rather than can the court take it into account? (which is dealt with in admissibility, Chapter 3) Witnesses: 2.1 (ss12 46) Documents: 2.2 (ss 47 51) Other evidence: 2.3 (ss 52 54)

20 Calling a witness The court s power to control its own proceedings not generally affected s 11 Court s control of questioning of witness s 26

21 Civil proceedings Calling a witness Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd (1988) 14 NSWLR 552 (KOP [2.40]) A judge cannot call a witness in civil proceedings without the consent of the parties or lack of objection. Obaleco Pty Ltd v Taveraft Pty Ltd (1986) 10 FCR 518 Presiding judge in civil proceedings has power to call a witness over objection of party for the purpose of enabling each party to cross-examine upon material matters; but the discretion should be exercised in furtherance of justice and in exceptional circumstances.

22 Civil proceedings Calling a witness Sharp v Rangott (2008) 167 FCR 225 It was correctly accepted by the parties that at common law the exercise of the power is reserved only for the most exceptional cases and that it would be regarded as highly unusual for a judge to call a witness in a proceeding. Federal Circuit Court Rules 2001 (Cth) r Case management rules might enable a judge to be more involved in what witnesses are called in civil cases than traditionally accepted - for example under the NSW Civil procedure rules there are provisions enabling a Court to appoint an expert witness Making a direction under s 26 is subject to the factors in s 192 Australian Securities and Investments Commission v Rich [2006] NSWSC 643, [9] Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Limited (No. 2) [2007] FCA 121

23 Criminal proceedings Calling a witness Crown Prosecutor s responsibilities: R v Apostilides (1984) 154 CLR 563, 575 [KOP 18]: 1. Crown prosecutor bears responsibility for deciding whether to call a witness for the Crown. 2. Judge may, but not obliged to question Crown regarding reasons not to call a witness. Not called to adjudicate sufficiency of those reasons. 3. At the close of the Crown case, judge may ask Crown to reconsider the decision, but cannot compel the Crown to call a witness 4. Judge may comment to jury about failure of Crown to call a witness and the effect on the trial 5. Save for exceptional circumstances, judge should not call a witness 6. Decision not to call a witness is only a ground to set aside a conviction if, when viewed against conduct of whole trial, it gives rise to a miscarriage of justice.

24 Criminal proceedings Calling a witness R v Kneebone (1999) 47 NSWLR 450 [KOP 2.50]: Victim s mother was a witness to alleged assault and sexual assault. Crown referred to mother as a potential witness in opening, but subsequently told defence that she was unreliable and would not be called. On appeal conceded that mother was a material witness who had not been interviewed. No basis to say that mother was unreliable NSW DPP guidelines re calling of witnesses NSW Bar Rules 62 and 62B (now 82 and 89)

25 Criminal proceedings Calling a witness R v Kneebone (1999) 47 NSWLR 450 [KOP 2.50]: Crown needs to point to identifiable factors which show unreliability. Crown needs to take appropriate steps, including interviewing the witness Principles to be considered [KOP pp21-22]

26 Calling a witness Criminal proceedings (experts) Velevski v The Queen (2002) 76 ALJR 402 [KOP 2.60]: Murder/suicide or murder/murder Dr Bradhurst was called but colleagues who agreed with him were not called Nor was a statement taken Gleeson CJ no miscarriage of justice Experts different to witnesses of fact. No balancing exercise required. Fairness does not require a head count Gaudron J (diss) miscarriage of justice Gummow and Callinan J no miscarriage of justice Even if they should have been called, potential injustice, was cured by direction of judge

27 Competence and compellability Part 2.1, Div appears to be a code on competence and compellability Competence capability of giving evidence. Compellability compulsion to give evidence. Section 12(a) presumption of competence subject to the Act. Section 12(b) all competent witnesses are compellable. Section exceptions

28 Competence and compellability UEL v common law and other jurisdictions At common law, a person is competent to give sworn evidence if the he/she can take an oath: that is, the person understands the nature and consequence of taking an oath. What is the reason for this? A child under 12, can give sworn evidence if he/she understands: Giving evidence is a serious matter Has an obligation to tell the truth Evidence Act 1906 (WA), s 106B

29 Competence and compellability UEL v common law and other jurisdictions UEL amended 2007 (NSW). There were a number of overlapping criticisms: first, taken together, the tests of competence to give sworn and unsworn evidence are too restrictive, with the risk that evidence of probative value will be excluded; secondly, the appropriateness of the requirement in the competence test to give unsworn evidence that a person understands the difference between the truth and a lie is questionable; thirdly, the tests of competence to give sworn and unsworn evidence are too similar; fourthly, the tests of competence to give sworn and unsworn evidence pose difficulties for practical application; and fifthly, there is uncertainty about the application of the requirement that the court tell the witness that it is important to tell the truth. ALRC 102 [4.30]

30 Competence and compellability Section 12 - Competence and compellability Except as otherwise provided by this Act: (a) every person is competent to give evidence, and (b) a person who is competent to give evidence about a fact is compellable to give that evidence.

31 Competence and compellability Section 13 - Competence: lack of capacity (1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability): (a) the person does not have the capacity to understand a question about the fact, or (a) the person does not have the capacity to give an answer that can be understood to a question about the fact, and that incapacity cannot be overcome.

32 Competence and compellability (3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence. (4) A person who is not competent to give sworn evidence about a fact may, subject to (5) be competent to give unsworn evidence about the fact

33 Competence and compellability (5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person: (a) that it is important to tell the truth, and (b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and (c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.

34 Competence and compellability SH v R [2012] NSWCCA 79 Sexual assault of child under 10 Complainant was main witness. Gave unsworn evidence Appeal on basis of lack of correct instruction to complainant Instruction by judge did not refer to statement that witness should feel no pressure to agree Strict compliance with 13(5)(c) required (KOP, p36)

35 Competence and compellability Section 14 reduced capacity A person not compellable if there is substantial cost or delay involved in ensuring capacity, and adequate evidence will be given by other witnesses Section 15 Compellability: Sovereign and others Cannot compel head of state, Governor, G-G or Parliamentarian (if conflicts with sitting) Section 16 Competence and compellability: judges and jurors Judge and jury not competent to give evidence in current proceeding Judge cannot be compelled to give evidence about proceeding without leave

36 Competence and compellability Section 17 - Competence and compellability: defendants in criminal proceedings In criminal proceedings, defendant is not competent to give evidence for crown Associated defendant cannot be compelled to give evidence against associate unless being tried separately

37 Competence and compellability Section 18 Compellability of spouses and others in criminal proceedings In criminal proceedings, spouse, de facto, child or parent can object to giving evidence against defendant Section 18(1) criminal proceedings only Section 18(2) spouse, de facto, child parent Section 18(3) and (4) when to object Section 18(5) objection determined in the absence of the jury

38 Competence and compellability Section 18 Compellability of spouses and others in criminal proceedings (6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that: (a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence, and (b) the nature and extent of that harm outweighs the desirability of having the evidence given.

39 Competence and compellability Section 18 Compellability of spouses and others in criminal proceedings Factors s 18(7) (a) (b) (c) (d) the nature and gravity of the offence for which the defendant is being prosecuted, the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it, whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor, the nature of the relationship between the defendant and the person, (e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant.

40 Competence and compellability Section 18 Compellability of spouses and others in criminal proceedings Note Odgers [ ]: Odgers suggests that in s 18(2) an objection to give evidence cannot be partial (subject 2(b)). If aware of the right to object (see 18(4)), the witness cannot then give some evidence and then refuse to answer further questions (subject to s 18(2)(b)). But given s 18(2)(b), this idea seems odd.

41 Competence and compellability R v Khan (Unreported, NSW Supreme Court, Hidden J, 22 November 1995)Section 18 Compellability of spouses and others in criminal proceedings Tried for murder of friend, who caught him and friend s wife in bed together Prosecution wanted to call wife to testify. She objected Weighing up factors: husband and wife were living together, evidence would be of little weight and significant matters in it could be proved by other evidence. Wife giving evidence was likely to cause harm to her relationship with the accused to extent that outweighs the desirability of having it given

42 Competence and compellability Australian Crime Commission v Stoddart and Anor (2011) 282 CLR 620; [2011] HCA 47 Common law spousal privilege Wife summoned by ACC to give evidence of husband s business dealings at private examination. She invoked spousal privilege to avoid answering questions High Court majority no such privilege exists

43 Competence and compellability Section 19 Exception to s 18 in relation to certain offences (not Vic) Relating to domestic violence and child offences Section 20 Comment on failure of defendant to give evidence Judge and other party can comment (not prosecution) on defendant s failure to give evidence and failure of spouse, parent or child to give evidence But only another party can suggest that this was because defendant believes that he/she is guilty

44 Sworn and unsworn evidence 21 - Sworn evidence to be on oath or affirmation (1) A witness in a proceeding must either take an oath, or make an affirmation, before giving evidence (2) Subsection (1) does not apply to a person who gives unsworn evidence under section 13. (3) A person who is called merely to produce a document or thing to the court need not take an oath or make an affirmation before doing so. (4) The witness is to take the oath, or make the affirmation, in accordance with the appropriate form in Schedule 1 or in a similar form. (5) Such an affirmation has the same effect for all purposes as an oath.

45 Sworn and unsworn evidence Section 22 Interpreters Must be sworn Section 23 Choice of oath or affirmation Oath swears to God, affirmation doesn t Section 24 Requirements for oaths Oath still effective if witness does not have religious belief

46 Problem Competence and compellability Jo and Flo, a husband and wife, have been charged with armed robbery. (a) Can Flo testify for the prosecution against Jo? (c) Can Jo testify for Flo? (b) Can their seven-year old child testify for the prosecution regarding what he heard of their alleged plans to commit the robbery?

47 Problem Competence and compellability Thomas and Eric are charged with sexual assault and murder of Tulip. Crown seeks advice on what the outcome will be if the defence objects to the prosecution plan to call the following witnesses: 1. 8 year old brother of Tulip who witnessed the crime year old grand-mother of Tulip who witnessed the crime but was so shocked she suffered an irreversible; mental breakdown, such that she does not recognise the members of her own family 3. The wife of Thomas who may or may not be willing to testify but who would be able to give evidence of: 1. A conversation that she overheard between Thomas and Eric 1. Her seeing Eric disposing of the murder weapon when her husband was not present

48 Examination of witnesses Examination-in-chief Reviving memory Calling for a document Unfavourable witnesses

49 Examination-in-chief Section 26 court s control over questioning Section 27 parties may question witnesses Section 28 order of examination (unless Court directs): Examination in chief Cross-examination Re-examination

50 Examination-in-chief Section 27 parties may question witnesses Under common law principles, as a general rule it is for the parties to question witnesses and the Judge's role is generally limited to asking questions only to remove apparent ambiguities: "questions designed to clear up answers that may be equivocal or uncertain, or within reason, to identify matters that may be of concern to himself. These constraints apply particularly in criminal proceedings with a jury. The traditional position has been changing in civil proceedings for example, CPA now provides for case management principles to be overriding and fundamental principles to be considered by court and parties in litigation. FB v The Queen [2011] NSWCCA 217 at [93] - it has become more common for judges to take an active part in the conduct of cases; the growth of litigation, the complexity of litigation, and the limited resources of courts and legal aid - Court to intervene wherever necessary to ensure that issues are clarified and that justice is dispensed within reasonable limits of efficiency.

51 Examination-in-chief Section 29 manner and form of questioning (1) A party may question a witness in any way the party thinks fit, except as provided by this Chapter or as directed by the court. (2) A court may, on its own motion or on the application of the party that called the witness, direct that the witness give evidence wholly or partly in narrative form (3) Such a direction may include directions about the way in which evidence is to be given in that form. (4) Evidence may be given in the form of charts, summaries or other explanatory material if it appears to the court that the material would be likely to aid its comprehension of other evidence that has been given or is to be given.

52 Examination-in-chief GPI Leisure Corp Ltd v Herdman Investments (1990) NSWLR 15 Cross-claim for rectification of contract that would require plaintiff to transfer units at a price it says is below market value. Plaintiff resisted cross-claim. Mortgagee for plaintiff also resisted cross-claim, but different argument Argued that plaintiff and mortgagee were parties with same interest and therefore they should not both be able to XXM defendant s witness Held: it could not be said that plaintiff and Bank were in precisely the same interest' but so far as the bulk of the factual material is concerned, the interests are the same. Held that both counsel may cross-examine but there is to be no material overlapping in the cross-examinations both counsel are to agree who will cross-examine first.

53 Examination-in-chief GPI Leisure Corp Ltd v Herdman Investments (1990) NSWLR 15 Principles: 1. The only actual right was to a fair trial 2. Duty of judge to ensure that all parties have a fair trial 3. Must exercise discretion so that examination and cross-examination are conducted in a way that a fair trial is assured 4. Ordinarily a judge will adopt usual procedure: XinC, XXM, RXM 5. Where more than one counsel per party, the judge will ordinarily not allow more than one to cross-examine a witness 6. Where the parties have the same interest, the same applies as in 5

54 Examination-in-chief GPI Leisure Corp Ltd v Herdman Investments (1990) NSWLR Where complex issues and no overlap, it may be proper to allow parties with similar interest to each cross-examine 8. Court may fix amount of cross-examination in interest of time or witness 9. It is proper to warn at the outset how long cross-examination will go for, subject to an application for more. Can curtail time 10. Group cross-examination should not be permitted 11. Court should not allow cross-examination for a collateral purpose or to torture witness 12. In interlocutory proceedings, collateral purpose should be looked at closely 13. Ordinarily judge should permit cross-examination of all witness by all counsel unless rules above apply

55 Examination-in-chief GPI Leisure Corp Ltd v Herdman Investments (1990) NSWLR 15 Rules are only guidelines to ensuring a fair trial But what effect has UEL had on this?

56 Examination-in-chief R v Esposito (1998) 45 NSWLR 442 Convicted of murder. Appealed, inter alia, on grounds that judge asked the defendant a long series of questions amounting to cross-examination and which raised new issues (See KOP, p51 for transcript). Defence counsel asked the judge to disqualify himself he refused The line that a judge walks when asking questions of a witness is narrow one. Nothing wrong with asking questions to clear up uncertain or equivocal answers But once the judge resorts to extensive questioning, particularly of the kind that amounts to cross-examination in a criminal trial before a jury, he is trading on thin ice Here judge pursued appellant on important issues. Advanced case for prosecution Summing up and reason for refusal to excuse himself indicate a tangible risk that judge was seen to have sided with the prosecution

57 Section 37(1) - Leading questions Examination-in-chief A leading question must not be put to a witness in examination in chief or in reexamination unless: (a) (b) (c) (d) (e) the court gives leave, or the question relates to a matter introductory to the witness s evidence, or no objection is made to the question and (leaving aside the party conducting the examination in chief or re-examination) each other party to the proceeding is represented by a lawyer, or the question relates to a matter that is not in dispute, or if the witness has specialised knowledge based on the witness s training, study or experience the question is asked for the purpose of obtaining the witness s opinion about a hypothetical statement of facts, being facts in respect of which evidence has been, or is intended to be, given

58 Section 37(1) - Leading questions What is a leading question? Examination-in-chief "leading question means a question asked of a witness that: (a) directly or indirectly suggests a particular answer to the question, or (b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked Open questions v closed questions A common misconception is that a leading question is one which can be answered yes or no. A leading question has been defined as one which suggests the desired response which may frequently be answered yes or no. However, a question is not always considered leading merely because it may be answered yes or no. State v. White, 508 S.E.2d 253, 267 (N.C. 1998)

59 Leading questions - Examples Your name is Alex Rose? Examination-in-chief You are 29 years old? Mr Rose were you in Hyde Park on the night of 3 July 2004? You saw the accused murder the deceased, didn t you? How is your relationship with your wife? Have you stopped yelling at your wife? The red jacket

60 Leading questions - Examples Examination-in-chief Did you see another car coming very fast in the opposite direction? What did you do after Smith hit you? How deep was the canal? About how fact was the other car going when it smashed into your car? Did you find anything similar to a remote control for a garage door? Thi Dung Ta v R [2011] NSWCCA 32

61 Leading questions - Examples Examination-in-chief When does section s 37(1)(e) apply? When an expert witness is asked a question about a hypothetical.

62 Reviving memory When would a witness need to revive memory? How could memory be revived? Section 32 Reviving memory in court Section 33 Evidence given by police officers Section 34 Reviving memory out of court

63 Reviving memory Section 32 Reviving memory in court (1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave. (2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account: (a) whether the witness will be able to recall the fact or opinion adequately without using the document, and (b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that: (i) was written or made by the witness when the events recorded in it were fresh in his or her memory, or (ii) was, at such a time, found by the witness to be accurate

64 Reviving memory Section 32 Reviving memory in court (3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion. (4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party 2 situations for giving leave: Application for leave is made whilst witness is giving evidence to permit the witness to use a document to revive his/her memory Witness has used a document to refresh memory whilst giving evidence and leave is sought to read from document aloud

65 Reviving memory Section 32 Reviving memory in court When considering whether to grant leave, the court must address s 192 and the circumstances of the case generally [Stanoevski] A witness may read aloud from a document that they use to refresh their memory: s32(3) - again with leave lf an application to read from a document is made the court should first be satisfied that an attempt has been made to refresh memory from it Not much current authority on contemporaneity requirements for "fresh in the memory'. ALRC 102 has considered a flexible approach to what this is should be adopted - eg Court should not adopt a strict rule that within 24 hrs required, taking into account a range of factors. Further, this is only one of other factors to take into account Leave may not be appropriate if document is in objectionable form

66 Reviving memory Section 33 Evidence given by police officers (1) Despite s 32, in any criminal proceeding, a police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer (2) Evidence may not be so given unless: (a) the statement was made by the police officer at the time of or soon after the occurrence of the events to which it refers, and (b) the police officer signed the statement when it was made, and (c) a copy of the statement had been given to the person charged or to his or her lawyer a reasonable time before the hearing of the evidence for the prosecution.

67 Reviving memory Section 33 Evidence given by police officers Dodds v R [2009] NSWCCA 78 Could a police officer could give evidence of a statement that he had made transcribing intercepted telephone conversations involving the accused talking in "pig latin? Section 33(2)(a) requires that the statement be made by the police officer "at the time of or soon after the occurrence of the events to which it refers The plaintiff argued that this requirement was not satisfied as the statement was made by the police officer about 18 months after the surveillance and investigations were conducted. The Court disagreed with this Care needs be given in determining what is the "event". Here, the court considered that the relevant event was not the interception of the phone calls, but the reviewing of the transcripts. The statement was made at the time or soon after reviewing the transcripts

68 Reviving memory Section 33 Evidence given by police officers Orchard v Spooner (1992) 28 NSWLR 114 Whether the statement was made "at the time or soon after the events to which it refers" is a question of fact to be determined by the tribunal; however a matter of days rather than weeks has been suggested to be the appropriate time

69 Reviving memory Section 34 Attempts to revive memory out of court (1) The court may, on the request of a party, give such directions as are appropriate to ensure that specified documents and things used by a witness otherwise than while giving evidence to try to revive his or her memory are produced to the party for the purposes of the proceeding (2) The court may refuse to admit the evidence given by the witness so far as it concerns a fact as to which the witness so tried to revive his or her memory if, without reasonable excuse, the directions have not been complied with Act does not regulate attempts by a witness to revive memory before court otherwise than to require production of the document Note s 122(6) - loss of privilege over document which is used to revive memory, or under ss 32, 34

70 Calling for a document Section 35 - Effect of calling for production of documents Section 35 abolishes the rule at common law that when a party calls for the production of a document from the other party, and inspects it, they can be required to tender it, even if it contains inadmissible material

71 Unfavourable witnesses Section 38 Unfavourable witnesses (1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) (b) (c) 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 examination in chief, making a genuine attempt to give evidence, or whether the witness has, at any time, made a prior inconsistent statement.

72 Unfavourable witnesses (2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39). (3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness s credibility. (4) Questioning under this section is to take place before the other parties crossexamine the witness, unless the court otherwise directs. (5) If the court so directs, the order in which the parties question the witness is to be as the court directs. (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account: (a) (b) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

73 Unfavourable witnesses A party cannot just embark upon the cross-examination of their own witness because a matter unfavourable has arisen In deciding whether to grant such leave the Court must have regard to the matters in section 192 The Court must also have regard to the matters in section 38(6). In granting leave the Court may restrict the crossexamination to particular matters so that the examination does not have an unlimited ambit.

74 What is unfavourable? Unfavourable witnesses Unfavourable must be more than merely neutral, or not helpful; it must be unhelpful, or detract from the case of the party calling it: Adam v The Queen (2001) 207 CLR 96; Hadgkiss v CFMEU [2006] FCA 941. The witness does not have to be entirely unfavourable; if they give some unfavourable evidence, or not a genuine attempt regarding some evidence, s 38 may be invoked: R v Pantoia [1998] NSWSC 565

75 Unfavourable witnesses R v Hogan [2001] NSWCA 292 Appeal related to cross-examination by the Crown of a witness who made statements in her evidence in chief that contradicted earlier statements to police. See p 59 at [40] and p 61 [76] cross-examination covered whether witness had seen appellant sleeping with another; her drug-taking etc.. A lot of the cross-examination was entirely collateral to the facts in issue and far from the ambit of s 38 that had the effect of diverting the focus of the trial Judge erred in not considering the matters set out in s 38(6), 192 and discretionary considerations; and, the questioning became a wholesale attack on her credit, and did not remain within the proper ambit of s 38 - the contradictory statements. At [80]: it is necessary, when giving consideration to the grant of leave, to have regard to the effect on the trial of the ambit of questioning and of the matters that might be raised.

76 Unfavourable witnesses R v Le (2002) 54 NSWLR 474 Le tried to flush heroin down toilet during police search. Girlfriend told police they were Le's drugs - later recanted and said they were hers (Le bought her a car), and gave evidence inconsistent with evidence given previously to police Crown sought leave to cross-examine her under s 38 - No reference made to matters in 38(6) nor did judge consider matters set out in s 192(2) ln cross-examining under s 38, prosecutor asked questions not only about the prior inconsistent statement, but also about the factual circumstances of the prior statement tending to prove its veracity (e.g., immediacy, parent present, etc.) and her motive for changing her story (i.e., the car)

77 Unfavourable witnesses R v Le (2002) 54 NSWLR 474 The Court concluded that even though the trial judge may not have properly considered the matters required to be considered in granting leave, if the trial judge had have done so, the end result would have been that the questioning would have been allowed Heydon J accepted that leave under s 38 does not justify general crossexamination However, taking a narrow interpretation of what "about" means in s 38 in relation to scope of cross-examination could potentially hinder crossexamination (see discussion on p 68).

78 Unfavourable witnesses R v Le (2002) 54 NSWLR 474 [67]: ln my opinion, on the true construction of s 38, leave may be granted under s 38 to conduct questioning not only if the questioning is specifically directed to one of the three subjects described in s 38(1), but also if it is directed to establishing the probability of the factual state of affairs in relation to those subjects contended for by the party conducting the questioning or the improbability of the witness's evidence on those subjects. ln establishing the probability or improbability of one or other state of affairs, the questioner is entitled to ask questions about matters going only to credibility, with a view to shaking the witnesses credibility on the s 38 subjects [73] No doubt it will often not be right more than one application (p 69) [76] The trial judge. Particular occasions. (p 70) Distinguished R v Hogan on the basis that here the issue of the appellant s guilt and the witnesses alleged lying were more closely linked. [89]

79 Unfavourable witnesses R v Le (2002) 54 NSWLR 474 Conclusions [90]: Section 38 permits testing of evidence in chief wit ha view of establishing truth of matters asserted in prior inconsistent statement Permits examination of witness on matters of credit with a view to jury accepting prior inconsistent statement Permits examination of background at time that prior statement was made and background at time when witness moves to new story Permits inquiry into possible reasons for change, including motive

80 Unfavourable witnesses R v Le (2002) 54 NSWLR 474 Conclusions [90]: Failure to consider ss 192, 135, 137 immaterial if would have reached the same conclusion Immaterial that judge did not give leave in small dollops R v Hogan not applicable -?? The decision in R v Le suggests that the cross-examiner will be given a wide scope

81 Cross-examination of witnesses Dictionary cl 2(2) questioning by party other than calling party Section 40 Witness called in error Section 41 Improper questions Section 42 Leading questions

82 Cross-examination of witnesses Section 40 Witness called in error A party should be free to withdraw a witness if decides it was mistaken in calling that witness, provided no EIC given, Other party free to call - ALRC 26, vol 1, para 630

83 Cross-examination of witnesses Section 41 Improper questions Questions may be improper for reasons of substance (eg seek to elicit evidence not admissible under Ch 3) or reasons of form - s 4l deals with latter category Provision amended by 2007 Act, following ALRC 102 report which recommended that s 275A of Criminal Procedure Act 1986 (NSW) be adopted in criminal proceedings. Mandatory - court must disallow the question even if no objection: s 41(5) The word 'unduly' recognises that party is entitled to test opposing witness's evidence and balance that right against stress of witnesses. Some questions may be embarrassing - judge has to make a judgment call whether "unduly so. Will consider probative value and importance of evidence sought to be elicited. Section 41 not complete guide to improper questions - note ss 11 and 26

84 Cross-examination of witnesses Section 41 Improper questions Libke v The Queen (2007) 230 CLR 559 High Court majority held that, in the absence of objection, the accused still received a fair trial: dismissed the appeal. Heydon J discussed the limits of acceptable cross-examination: Some questions were propositions put to the accused: Your evidence is just a tissue of lies" Some were an injection of the prosecutor s opinion: "l've heard all of that. l'm just not buying it"

85 Cross-examination of witnesses Section 41 Improper questions Libke v The Queen (2007) 230 CLR 559 The cross-examination was wild, uncontrolled and offensive Was calculated to humiliate and belittle. Sarcastic, personally abusive and derisive Used compound questions [127] Cut off answers [128] Assumed answers that had not been given [129]

86 Cross-examination of witnesses Section 41 Improper questions Libke v The Queen (2007) 230 CLR 559 Argumentative [131]: That doesn t tell us much does it? Look I m giving you every opportunity.. I ll shift to another topic whenever you re ready to finish it We want honesty at all times, of course. Should avoid harassing or badgering because this can disconcert the witness so that his answers do not represent his actual knowledge on the subject - affects quality of evidence Trial judge should have intervened to control the witness

87 Cross-examination of witnesses Section 41 Improper questions Picker v The Queen [2002] NSWCCA 78 Trial for sexual assault - accused claimed it was consensual. Appealed on several grounds, including improper questions by prosecutor. Prosecution had invited the appellant to comment on whether the complainant had fabricated her evidence. It is one thing to permit cross-examination of complainant to elicit a motive to lie. Another to permit it of an accused to show than an accused cannot prove any ground for imputing a motive to lie. Motive is within complainant's knowledge. [26]

88 Cross-examination of witnesses Section 41 Improper questions Picker v The Queen [2002] NSWCCA 78 The fact that an accused cannot offer a motive to lie is irrelevant. The cross-examination elicited prejudice against accused - he could not be expected to know what she believed. All he knew was that it was incorrect. There is no objection to the cross-examining to establish that a suggested motive is incorrect. But the cross-examination if the present case was directed to driving the appellant into saying it was made up or fabricated. Impermissible. Appeal allowed, conviction quashed, new trial ordered.

89 Cross-examination of witnesses Section 42 - Leading questions What is a leading question? "leading question means a question asked of a witness that: (a) directly or indirectly suggests a particular answer to the question, or (b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked Open questions v closed questions

90 Cross-examination on documents Prior inconsistent statements - 43 PIS: defined in dictionary (Part 1): "prior inconsistent statement" of a witness means a previous representation that is inconsistent with evidence given by the witness.

91 Cross-examination on documents Prior inconsistent statements 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, or (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 circumstances 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, a party may re-open the party s case.

92 Cross-examination on documents Prior inconsistent statements 43 Example: Witness gives evidence in witness box that did not see anything on night in question. Previous statement given to police that she witnessed the murder. Section 43(1) - can ask questions about PIS whether or not complete particulars given or lf she admits the PIS, you can cross-examine on PIS without meeting requirements in s 43(2) lf she does not admit it you must observe requirements in s 43(2) Note this does not mean that PIS is admissible

93 Cross-examination on documents Prior representations of other persons 44 (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,

94 Cross-examination on documents Prior representations of other persons 44(3) (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.

95 Cross-examination on documents Prior representations of other persons 44 lf going to cross-examine witness about previous representation of someone else, must observe s 44

96 Cross-examination on documents R v S [2003] NSWCCA 122 Convicted of rape Defendant denied intercourse. Prosecution relied upon evidence of complainant, corroborating evidence of the complaint from her friend and medical evidence. On appeal argued inter alia that judge shouldn t have rejected the submissions that the defendant could cross-examine the friend about a previous representation made by the complainant, and that the the trial judge erred in declining to direct the jury that defence counsel had not acted improperly

97 Cross-examination on documents R v S [2003] NSWCCA 122 Complainant made a statement that was not put into evidence: 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 babysitter for and then followed me in my car to pick up my son from his babysitter. Complainant was cross-examined on statement but above paragraph was not referred to in cross-examination

98 Cross-examination on documents R v S [2003] NSWCCA 122 Donna friend cross-examined on this event: Q. Right, and what was the next thing that happened? A. I asked her the question again, I said What s wrong and she said she couldn t tell me, and I said Look you may as well tell me now than later and I gave her time, about half and hour, or an hour and a half later she came back and told me what happened. Q Did she show you something? A. Yes she did. Q. And how did that come about? A. Well she told me that her ex-husband raped her and then she went to go and put her pair of tights on and she said Look come in and I ll show you. She didn t want to show in front of my kids and I said Right, come in to the bedroom and she showed me what he had done to her.

99 Cross-examination on documents R v S [2003] NSWCCA 122 Q. What did she show you? A. She showed me the bruises on her, like her breasts and where he hit her. Q. And what was the next thing that happened? A. Then she burst into tears. I said Well come back out here and I said while we ring the domestic violence phone call so I was talking to the lady on the phone and then I handed the phone to her and the lady said It s the best thing to do that, to go and report it to the police.

100 Cross-examination on documents R v S [2003] NSWCCA 122 Judge then asked: JQ. Well I ve got a question. You told this court that the complainant told you that her husband had raped her. That was your word wasn t it? A. Yeah. JQ. What did you mean by that? A. I asked her, I said Did your ex-husband rape you or did he done something else instead of rape? JQ. Yeah, and what did she say to that? A. Well she told me that she got raped and I said That s different than what, it was different than rape than what other things that he done. JQ. Well I m sorry, I still don t understand? A. Well she told me that she d got raped, and I didn t believe it. Then I asked --

101 Cross-examination on documents R v S [2003] NSWCCA 122 JQ. What happened then? A. I asked her again Did he rape you and she told me Yes. JQ. Yes, and what were the other things that you understood that were different. A. The ones that I understood I said it was different than rape to say sexual harassment or things like that. JQ. Did she use the word rape? A. Yes she did. JQ. Did she tell you what the actions were that her husband performed on her? A. No.

102 Cross-examination on documents R v S [2003] NSWCCA 122 FURTHER CROSS-EXAMINATION Q. The complainant, and you ve already given this evidence, the complainant never said that her ex-husband had raped her did she? 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. JQ. 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? JQ. Now do you want to change your evidence? A. No thank no.

103 Cross-examination on documents R v S [2003] NSWCCA 122 Judge then argues with defence counsel about s 44. Judge unhappy about not being told what was happening. On appeal: Appellant argued that it was intention to invoke s 442(b). Held that there as no evidence that counsel was about to satisfy judge as to s 44(2) (i.e. to get in paragraph 40 somehow). But it did not follow that counsel was at fault in putting the document to the witness without prior permission from the judge, so long as she did not transgress s44(3)(d) by identifying it or disclosing its contents to the jury. - She should not have been criticized for going that far.

104 Cross-examination on documents R v S [2003] NSWCCA 122, [71] For reasons already given, I would not endorse what the judge did. He should not have criticized counsel in front of the jury insofar as she was proceeding in accordance with s44(3). But I would not hold that any miscarriage ensued. There is a difference between unappealing judicial behaviour and appealable judicial behaviour (Dovade Pty Ltd v Westpac Banking Group (1999) 46 NSWLR 168 at 192 [107], Barbosa v Di Meglio [1999] NSWCA 307 at [12]). Judges should be paragons of correctness and fairness, but not every departure will constitute an appealable miscarriage of justice. Mistakes are made by all participants in a trial, but juries are directed to attend to the evidence and the formal directions of the judge. Even an unmerited display of judicial displeasure will not invariably cause a miscarriage

105 Cross-examination on documents Prior representations of other persons 44 ALRC Prior Statements of Other Persons. It would be most undesirable to permit crossexamination to be carried out using prior statements of persons other than the witness where those statements are not in evidence or will not be admitted in evidence. Where the statement is in evidence or will be received in evidence, there is no reason to prevent cross-examination on the contents of the statements. This distinction is made in the proposal. As to oral statements, no cross-examination will be permitted under the proposal where the statements are not or will not be admitted in evidence. Where the statement is not in evidence or cannot or will not be adduced in evidence, the proposal is for the existing law to continue the witness will be shown the document, asked to read it and state whether he still adheres to his testimony. Against such an approach, it has been argued that such crossexamination should not be allowed. It may be oppressive to the witness where the document is placed in the witness hands and the tribunal of fact may be encouraged to speculate about the content of the document. An alternative is included which addresses these dangers by forbidding cross-examination on the statements of others.

106 Cross-examination on documents Prior representations of other persons 44 The dangers must be acknowledged. However, there is power to control crossexamination and provided the rules are complied with, the document will not be identified and it will not be possible to infer what is in it. The advantage of this limited cross-examination is that it can, as it has in the past, assist in establishing the facts. The safeguard is provided, however, of empowering the judge to require production to him of any document so used and to the other parties. In particular, where the document used contains statements of persons other than the witness, the judge can use this power to ensure that no false impressions are given about the contents of the document. The judge may make such use of it as he thinks fit. Finally the proposal removes uncertainty in the law by providing that the crossexaminer is not obliged to tender the document used in cross-examination.

107 Cross-examination on documents Prior representations of other persons 44 Example: Show the document to the witness Ask if he stands by his current evidence Do NOT identify the document The purpose of this provision is to balance the need to protect the witness from prior statements that will not be in evidence and the desirability of establishing the facts by testing the witnesses memory

108 Cross-examination on documents Prior representations of other persons 44 Example: Witness gives evidence in witness box that did not see anything. There is a police statement or affidavit from another witness saying the witness was present and saw everything, you may question the witness about it if the other evidence has been admitted or the court is satisfied it will be admitted. lf it the other statement has not been admitted and will not be admitted AND is contained in a document (not oral evidence), you can only cross-examine the witness about document if meet requirements in s 44(3)

109 Cross-examination on documents Production of documents - 45 Applies where witness has been cross-examined about a PIS (under s 43) or previous representation of another (under s 44) lf the court orders / a party requires, the examining party must produce the document to the court or the other party Court can examine it, direct as to use, admit it even if not tendered by that party But cannot admit document that is inadmissible Merely showing document to a witness does not mean that you have to tender the document

110 The rule in Browne v Dunn Essentially a rule of fairness Section 46 Browne v Dunn (1894) 6 Reports 67 (KOP ) Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 (KOP [2.360]) Payless Superbarn Pty Ltd v O'Gara (1990) 19 NSWLR (KOP ) R v Birks (1990) 19 NSWLR 677 (KOP [2.380]) MWJ v The Queen (2005) 80 ALJR 329 (KOP [2.390]) Khamis v The Queen [2010] NSWCCA 179 (KOP [2.400])

111 The rule in Browne v Dunn Browne v Dunn (1894) 6 Reports 67 (KOP ) Libel action against solicitor Defamatory material contained in document - stated that residents had authorised solicitor to take proceedings against plaintiff because of his various breaches of the peace. Signed by residents Residents were called as witnesses - gave evidence of instructions to solicitor Plaintiff's case was that the document was a sham the residents never gave those instructions and solicitor was on a frolic of his own in filing the proceedings But that was not put to them in cross-examination Contrary evidence should have been put to the witnesses [KOP, p84, 88, 89]

112 The rule in Browne v Dunn Browne v Dunn (1894) 6 Reports 67 (KOP ) The rule (as stated at [38] in MWJ) is that A party is obliged to give appropriate notice to the other party, or his witnesses, of any imputation that former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or witness's credit ln short, if you intend to lead evidence that is contrary to what witness has said - you need to put it to them in cross-examination

113 The rule in Browne v Dunn Browne v Dunn (1894) 6 Reports 67 (KOP ) Example: A is accused of murder. As says in evidence that on the night in question I was at home with my girlfriend ln cross-examination, the prosecution does not question A about his whereabouts. Prosecution then leads evidence from another witness that she saw A at a service station near the scene of the crime on the night in question. BREACH The prosecution needs to put to A that he left the house that night, otherwise A has not had the opportunity to deal with that contrary evidence.

114 The rule in Browne v Dunn Browne v Dunn (1894) 6 Reports 67 (KOP ) A number of different consequences can flow from breach of rule [Odgers ]: Recalling the witness for further cross-examination so that contrary evidence can be put: MJW v The Queen Recalling the witness to lead evidence rebutting the contrary evidence - s 46 Excluding the evidence adduced in breach of rule: i.e. evidence from the witness who saw A at service station: Payless Superbarn v O Gara Drawing of adverse inference from the failure to cross-examine: R v Birks See full list: Khamis v The Queen at [48]

115 The rule in Browne v Dunn Browne v Dunn (1894) 6 Reports 67 (KOP ) Not a breach if the witness has been given prior notice that there is contradictory evidence e.g. service of pleadings/particulars, contrary witness statements (but to witness) See Odgers p165

116 The rule in Browne v Dunn Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 (KOP [2.360]) Demir suing for work injury that caused loss of fingers She gave evidence she would have worked until 55. Awarded compensation. She appealed to Court of Appeal - given more Precision Plastics appealed to HCA, arguing that the damages were excessive. Argued that amount awarded at first instance would not have been out of proportion if jury had concluded that Demir would not have continued to work until 55 Majority held that her evidence was uncontradicted and jury bound to accept it. lf D wanted to cast doubt on her working capacity, it was obliged to put that to her.

117 The rule in Browne v Dunn Payless Superbarn (NSW) Pty Ltd v O Gara (1990) 19 NSWLR 551 (KOP [2.370]) Consequence of breach of rule O'Gara slipped and fell in supermarket. lnjured back. Sued PS. Gave evidence that she had slipped on grapes on the floor. She was not cross-examined about their presence. Was only asked how many there were (apparently to establish a contributory negligence argument i.e. she should have seen them if there were a lot) Defence called evidence from manager he said nothing was on the floor Judge directed jury to disregard manager's evidence

118 The rule in Browne v Dunn Payless Superbarn (NSW) Pty Ltd v O Gara (1990) 19 NSWLR 551 (KOP [2.370]) PS appealed on basis of that direction No universal rule as to consequences of breach of the rule (KOP, p 93) Different breached call for different remedies and lie within the discretion of the judge and can only be overturned if in error Balancing act if judge rejected evidence he deprived PS of opportunity to put competing version of events if allowed then deprived lady of opportunity to address it and may have been led unwittingly not to call corroborating evidence Refusal to admit evidence an extreme and unusual step But not apparent that discretion exercised erroneously.

119 The rule in Browne v Dunn R v Birks (1990) 19 NSWLR 667 (KOP [2.380]) Birks convicted of 18 offences including maliciously inflicting BH with intent and sex without consent. Prosecution case was that Birks broke into farmhouse and threatened complainant/children with violence. Raped complainant including anally. Birks claimed she consented Birks counsel failed to cross-examine complainant on two aspects of accused's instructions: (1) that there had been no anal intercourse (2) that facial injuries a result of non-intention conduct i.e. torch had fallen on her Birks gave evidence that oral and vaginal intercourse were consensual, that there had been no anal intercourse and that facial injuries were caused by the torch

120 The rule in Browne v Dunn R v Birks (1990) 19 NSWLR 667 (KOP [2.380]) Prosecution cross-examined Birks to the effect that he was lying and had recently invented his evidence because the complainant was not crossexamined on it. Also cross-examined on his instructions to lawyers Judge invited jury to take into account prosecution's cross-examination when assessing accused's credibility - i.e. could draw an adverse inference from failure to of defence to cross-examine complainant on the contradicted matters. This direction was given to remedy beach of rule in Browne v Dunn After the jury retired counsel sought advice and told judge that failure to cross-examine was a result of his inexperience. Judge refused to discharge jury Guilty verdict. Accused appealed

121 The rule in Browne v Dunn R v Birks (1990) 19 NSWLR 667 (KOP [2.380]) Considered how the rule applies in a criminal trial Fairness has different practical content in criminal trial Failure to observe rule will have varying consequences in criminal trial, but related to central objective of securing fairness It may be legitimate to draw appropriate conclusions from failure, but fraught with peril and should be used with circumspection (KOP, p97). There may be many reasons why failed to cross-examine on the issue other than the credibility of witness If possibility of adverse inference left to jury, they should be given reference to possible factors Appeal allowed. Convictions quashed. New trial ordered.

122 The rule in Browne v Dunn MJW v The Queen (2005) 80 ALJR 329 (KOP [2.390]) MWJ convicted of three sexual offences against a child. Three people gave evidence: complainant, mother, accused Supposed inconsistencies between evidence of complainant and mother not put by defence counsel to complainant in cross-examination Complainant not recalled and cross-examined on inconsistencies Judge did not use mother's evidence as PIS because it was unfair to the complainant, who had not been crossed-examined by accused in breach of rule

123 The rule in Browne v Dunn MJW v The Queen (2005) 80 ALJR 329 (KOP [2.390]) Court of appeal said that complainant s evidence should not be impugned judge was correct to not wrongly dealt with breach - inconsistency should not have been ignored - fact that inconsistencies not put in crossexamination should be taken into account in assessing their weight Appeal to High Court Gleeson CJ and Heydon J: Again emphasised care in applying rule in criminal trials Accused not obliged to question complainant about whether there had been more than one incident (that is what mother said) - why would he want to elicit further information about a separate offence? It was matter for the judge to asses the weight of the inconsistencies

124 The rule in Browne v Dunn MJW v The Queen (2005) 80 ALJR 329 (KOP [2.390]) Majority (Gummow, Kirby and Callinan): Judge s criticism of accused ill founded because the complainant gave evidence before her mother not for accused to know and anticipate inconsistencies and ask complainant questions in anticipation of mother s evidence. Not for the accused to iron out inconsistencies in prosecution s case Breach can almost always be cured by seeking or offering the recall of the witness to enable the matter to be put. ln criminal cases practice is to excuse the witness temporarily on the understanding they may need to be recalled. Then the accused could elect to cross-examine or not Not for the accused to clear up inconsistencies in the prosecution's case Prosecution should have offered to recall the witness

125 The rule in Browne v Dunn MJW v The Queen (2005) 80 ALJR 329 (KOP [2.390]) Majority (Gummow, Kirby and Callinan): The rule in Browne v Dunn can no more be applied, or applied without serious qualification, to an accused in a criminal trial than ca the not dissimilar rule in Jones v Dunkel. In each case it is necessary to consider the applicability of the rule (if any) having regard to the essential accusatory character of the criminal trial in this country

126 The rule in Browne v Dunn Khamis v The Queen [2010] NSWCCA 179 (KOP [2.400]) Complex sexual assault case. Cultural issues and translation problems in the provision of evidence Evidence of negotiations between complainant, her family and accused as to whether she would marry the accused Defence argued that only after she decided not marry him that sexual assault complaint was made.

127 The rule in Browne v Dunn Khamis v The Queen [2010] NSWCCA 179 (KOP [2.400]) Re-iterates principles in Birks and MWJ. The rule does apply in criminal cases Sets out options available to judge when rule is breached. Judge seems to have proceeded upon assumption that only option available was to exclude the evidence - erred No consideration as to whether witness could be recalled It was important that jury heard the evidence that was excluded - crucial to witness's credibility

128 The rule in Browne v Dunn Khamis v The Queen [2010] NSWCCA 179 (KOP [2.400]) Court must exercise flexibility in dealing with the problem Options include [42] [46]: Counsel be prevented from addressing in a way that asks the court to not accept the witnesses evidence. Acceptance of witness s evidence (unless incredible) Recalling the witness for further cross-examination so that contrary evidence can be put Recalling the witness to lead evidence rebutting the contrary evidence

129 The rule in Browne v Dunn Khamis v The Queen [2010] NSWCCA 179 (KOP [2.400]) Excluding the evidence adduced in breach of rule: i.e. evidence from the witness who saw A at service station: Payless Superbarn v O Gara If contradictory evidence allowed, an appropriate direction can be made Here the evidence as important and should have been permitted, not excluded, provided unfairness to either party prevented. Should have recalled the witness

130 Re-examination and re-opening a case Section 39 Drabsch v Switzerland General lnsurance Co Ltd [1999] NSWSC 765 (KOP [ ]) R v Chin (1985) 157 CLR 671 (KOP [ ]) Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 (KOP [ ])

131 Re-examination and re-opening a case Section 39 - Limits on re-examination On re-examination: (a) a witness may be questioned about matters arising out of evidence given by the witness in cross-examination, and (a) (b) other questions may not be put to the witness unless the court gives leave. Re-examination (Dictionary Pt 2(2)) (3) A reference in this Act to re-examination of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, being questioning (other than further examination in chief with the leave of the court) conducted after the cross-examination of the witness by another party. Can t ask leading questions in re-examination: s 37(1)

132 Re-examination and re-opening a case Drabsch v Switzerland General lnsurance Co Ltd [1999] NSWSC 765 (KOP ) See outline of question at KOP, p 107 (NB questions on cross) Not limited solely to eliciting clarifications or giving explanations where there is ambiguity Also applies where answer in cross-examination would, unless explained, leave court with impression of facts which are capable of being construed unfavourably to a party and which represent a distortion or incomplete account of truth lncludes questions going to mental state of witness at the time of the answer

133 Re-examination and re-opening a case Rule against prosecution splitting its case Prosecution must call all evidence available to it in support of its case during the presentation of its case. If it fails to do so, it cannot remedy this by calling evidence in reply except in exceptional circumstances Prosecution cannot call evidence in reply to defence case where it could have anticipated defence would raise that issue Unfair to reopen case after defence has concluded, as defence must know the case it has to answer

134 Re-examination and re-opening a case R v Chin (1985) 157 CLR 671 (KOP ) Chin and Choo tried for drug offences Claimed that they did not know each other Prosecution sought to re-open to tender Choo s visa application to show that they both put down the same telephone contact showing association Document admitted and Chin was recalled to for further cross-examination by defence on the document Choo was acquitted, but Chin was convicted. Chin appealed Conviction set aside

135 Re-examination and re-opening a case R v Chin (1985) 157 CLR 671 (KOP ) Not case splitting if the reply evidence is in rebuttal of evidence that do not form part of its proofs, e.g. defences, good character But even then, if it the accused s evidence is something that the prosecution should have known so that it could have been dealt with in the case in chief, leave to re-open should be refused e.g. Raised in earlier proceedings Prosecution can re-open to repair formal, technical or non-contentious omissions Principle one of fairness - accused entitled to know case he has to meet so he may have an adequate opportunity to determine what questions he may wish to ask in cross-examination, what evidence he may wish to call and what objections he may wish to make to case made against him

136 Re-examination and re-opening a case Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 (KOP [2.450]) Civil case Defendant closed case and commenced final address, then sought leave to call two further witnesses Distinguished from case where plaintiff seeks to reopen case after defendant has called its evidence, or where defendant seeks to reopen case after evidence called in reply by plaintiff may result in some prejudice to other party. Here all that had happened was defendant commenced final address No further costs - just extend the hearing day Plaintiff had already been challenged on veracity of accident - no element of surprise

137 Re-examination and re-opening a case Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 (KOP [2.450]) The fact that it was a deliberate decision not to call the witnesses at the outset is relevant - but not determinative. ln any event it was not a tactical one - rather defendant did not seem to appreciate the importance of the evidence The guiding principle in civil cases whether the interests of justice are better served by allowing or rejecting the application

138 Real evidence KOP Chapter 4 Evidence Act ss R v Milat (NSWSC Hunt J at CL 12/4/96 unreported) (KOP [4.40]) Evans v The Queen (2007) 235 CLR 521 (KOP [4.50]) R v Skaf (2004) 60 NSWLR 86 (KOP [4.60]) Kozul v The Queen (1981) 147 CLR 221 (KOP [4.80])

139 Real evidence Section 52 Adducing other evidence not affected In general the Evidence Act does note attempt to regulate the way that evidence other than witnesses and documents is adduced. This is left to the common law

140 Real evidence Section 53 Views (1) A judge may, on application, order that a demonstration, experiment or inspection be held. (2) A judge is not to make an order unless he or she is satisfied that: (a) the parties will be given a reasonable opportunity to be present, and (b) the judge and, if there is a jury, the jury will be present (3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following: (a) whether the parties will be present, (b) whether the demonstration, experiment or inspection will, in the court s opinion, assist the court in resolving issues of fact or understanding the evidence, (c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time, (d) in the case of a demonstration-the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated, (e) in the case of an inspection-the extent to which the place or thing to be inspected has materially altered. (4) The court (including, if there is a jury, the jury) is not to conduct an experiment in the course of its deliberations. (5) This section does not apply in relation to the inspection of an exhibit by the court or, if there is a jury, by the jury.

141 Real evidence Section 54 Views to be evidence The court (including, if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection. What happens on a view now constitutes evidence : R v Milat These sections have nothing to do with the admissibility/relevance of the view or demonstration These sections do not apply to in-court demonstrations: Evans v The Queen [2007] HCA 59. They are governed by relevance, and ss 135 and 137

142 Real evidence