Section 38 Applications

Transcription

1 Section 38 Applications A Defence Perspective By Jahan Kalantar The concept of a section 38 application is not easy to grasp. 1

2 Section 38 of the Evidence Act states (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) evidence given by the witness that is unfavourable to the party; or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or (c) whether the witness has, at any time, made a prior inconsistent statement. (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. Note: The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7. (4) Questioning under this section is to take place before the other parties cross examine 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) whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. (7) A party is subject to the same liability to be cross examined under this section as any other witness if: (a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person; and (b) the party is a witness in the proceeding. But what does that actually mean? Broadly two outcomes are possible 2

3 Historical perspective It has been accepted that the term unfavourable requires a lower threshold then the word hostile required at common law. Additionally, it was been held in R v Le [2001] NSWSC 174 that the word unfavourable in s38 should be given a broad meaning. Why have such a section? The purpose of such a declaration is to enable the Court to have all relevant evidence before it and ensure that a party is not called to maintain a forensic advantage. Also see Kneebone 3

4 How do we do it? The effect of a witness being declared unfavourable Section 38 (1(a)(b)(c) of the Act It is a matter for the party applying for the declaration to clearly inform the court, during the application, as to the breadth of the matters sought to be permitted to cross exam on as general cross examination is not generally permitted by this provision. There will however be circumstances however where it will be permissible to grant leave to examine at large without departing from the true purpose of s38 such as where the list proposed covered virtually all matters (or all the major matters) about which the witness had given evidence. A declaration that a witness is unfavourable will also enable the party to question the witness to about matters only relevant to credibility with the intent being to cast doubt on the witness s credibility on the matters subject to the declaration of unfavourability. 4

5 More simply put A witness which is declared unfavourable can be cross examined to the extent of an inconsistency or points of inconsistency for which leave is granted by the Court A declaration that a witness is unfavourable will not grant carteblanche to cross examine on all issues Opposing an Application 5

6 Opposing an application The party making the application has not made a genuine attempt to elicit the evidence by way of nonleading questions pursuant to section 37 of the Act The evidence the witness is giving does not fulfil the definition of unfavourable to the party calling the witness The witness appears to be making a genuine attempt to give evidence, which they may reasonably supposed to have knowledge The party calling the witness has not explored sufficiently the reasons the party is not able to give evidence which they may reasonably supposed to have knowledge The witness has not made a statement which fulfils the definition of a prior inconsistent statement according the act The application has been made prematurely; or it appears the application is being made for an ulterior purpose Case study 6

7 Are transcripts of compulsory examinations statements or representations of a witness for the purpose of s 38 Evidence Act 1995? For the purposes of section 38, a real question will arise when seeking to have a witness declared unfavourable due to what is said to be a prior inconsistent statement such as the transcript from a listening device or Crime Commission Transcript. To have a witness declared unfavourable on the basis of a statement such as this, consideration should be given to: how the statement was obtained; the history of the statement; The number of any other statements given; whether the witness had a chance to adopt the statement; characterisation of the witness to whom the statement was made; whether the usual evidentiary rules would lead to that statement being admissible ; and the basis for preferring that statement to the evidence given in chief to this point. Does evidence obtained covertly of conversations of a witness amount to a statement for the purpose of s 38? Not automatically! With the content of transcripts from listening devices, and other such intercepted material, there can be great scope for the intermingling of ideas and concepts relevant to matter in issue. There needs to be careful consideration, by both the applying party and opposing party, as to whether the transcript can be categorised as a statement should this occur, and whether portions are able to be cleanly excised from the transcript, leaving a coherent whole, to comply with this definition. 7

8 Tips and tricks Most Judicial officers will be grateful if you have some strategy to deal with a section 38 issue that arises, even if it takes a few minutes to form one The application should be done in the absence of the witness and the jury The scope of the declaration is critical to define prior to any declaration being made Depending upon your opponent, see if a compromise can be reached Expectations versus reality 8

9 Any questions? 9