1. To elicit facts favourable to the party represented by the cross examiner.

Transcription

1 Cross Examination on Documents R S McIlwaine & A J Stone SC Updated August 1998, Reviewed August 2007 Cross examination has several purposes. 1. To elicit facts favourable to the party represented by the cross examiner. 2. To discredit or cast doubt on the evidence in chief of an opposing party or witness called by an opposing party. 3. To comply with the rule in Browne v Dunn (1893) 6 R 67 (also see Allied Pastoral Holdings (1983) 1NSWLR 1). 4. To provide the basis for a comment upon the evidence such as the failure of the opposing party to call a witness when it is established that the whereabouts of the witness is known to that party. 5. To prove a document which the cross examiner wishes to have admitted into evidence. There are several situations in which a document may be used in cross examination. 1. Where an opposing party or witness is cross examined about a previous document made by that party or witness. 2. Where a party is cross examined about a document made by some other person. 3. Where a non-party witness is cross examined about a document made by some other person. It has been a basic rule of the common law that a witness cannot be asked any question about the contents of a document unless the document is first shown to the witness and put in evidence as part of the case of the party represented by the cross examiner. This rule arises from The Queens Case 1820 Brod & Bing 284; 129 ER 976. (adultery trial of Queen Caroline). Page 1 of 6

2 This rule has been modified and codified by the Uniform Evidence Act. Both the old common law and the new statutory provisions are dealt with below. Common Law The Rule in The Queens Case provided some undesirable consequences for the cross examiner not the least being that the party represented by the cross examiner was forced into evidence. If the cross examiner intended to use a document to contradict a witness then before doing so the attention of the witness must be drawn to the part of the document to be so used. The trial judge could at any time during the trial require the production of the document for inspection by the court and may require its tender: see Alchin v Commissioner of Railways (1935) 25 SR (NSW) 298 at 508-9; Wood v Desmond (1958) 78 WN 65, at 67. The cross examiner had to have the document in court at the time of the cross examination or at least be able to readily produce it: see R v Anderson (1929) 21 Cr Appeal R 178. In R v Jack (1894) 15 LR (NSW) 196 it was held that a party cannot be shown an identified document and be asked if the witness adheres to his or her testimony unless the cross examiner undertakes to put the document into evidence, although the correctness of this approach had been questioned: see Samuels JA in Maddison v Goldrick (1976) 1 NSW LR 651, at 660; see also McHugh (1985) 1 Australian Bar Review 51, at 54; and Malcolm (1986) 2 Australian Bar Review 267, at 271. Often of course a cross examiner may wish to prove a document through the admission of the witness being cross examined. In these circumstances the witness can be shown the document and asked whether it is his or her document. That is still the case. In the event that the document is for some reason inadmissible the cross examiner may still show the document to a witness, whether that witness is the author of the document or not, ask the witness to read the document and then ask, once the witness has read the document, whether the witness still adheres to his or her evidence; see R v Orton (1922) VLR 469, at 470. However the cross examiner should in such circumstances not identify the document or its contents. The cross examiner should simply show the document to the witness and once the witness has read the document say: "Having looked at the document do you still adhere to your previous statement?" Reference should be made also to R v Sehan Yousry (1914) 11 CAR 13, at 18; and R v Bedinton (1970) QD R 353, at Page 2 of 6

3 McHugh J, at 56 in his article, suggests that a party to a proceedings may be asked to make admissions as to the contents of a document whether or not the document was made by the party provided the contents of the document are within his personal knowledge. McHugh J cites a passage in the judgment of Jordan CJ in Alchin supra, at 508-9, as authority for this proposition. However McHugh J goes on to propose that a party probably could not be required to answer questions about the contents of another person's document unless it is produced; see R v Banks (1916) 12 CAR 74, at 75-6; Henman v Lester 12 CB (NS) 775, 142 ER 1347 at The Evidence Act The Evidence Act has codified various rules in relation to cross examination on documents in sections 44 and 45. Section 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: evidence of the representation has been admitted; or 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: (d) the document must be produced to the witness; 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; 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; 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. Page 3 of 6

4 Section 45 (1) This section applies 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. (2) If the court so orders or if another party so requires, the party must produce: the document; or 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: examine a document or evidence that has been so produced; and give directions as to its use; and 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. Section 45(5) effectively abolished the rule in the Queens Case. The cross-examiner can no longer be forced to tender a document which has been used in cross examination although of course it remains open for the other party to tender the document (if it is admissible) in re-examination. Prior Inconsistent Statements What is the effect and what use can be made of a prior inconsistent statement? If the witness is not a party to the proceedings a prior inconsistent statement once admitted by the witness or proved by the statement going into evidence does not become evidence in the case as to the truth of the statement s contents. The statement can be used only to discredit or neutralise the evidence given by the witness at the trial. So for example if the witness said in evidence in chief that X was a fact, but in Page 4 of 6

5 cross examination conceded that he or she had previously said Y was a fact, Y does not become a fact proved at the trial. The evidence can be used only to discredit or neutralise the evidence given in chief that X was a fact. Once a witness admits an inconsistency then the prior document is not admissible unless the witness is a party. If the witness is a party to the proceedings then the prior statement can be received into evidence and used as an admission. If a witness is cross-examined as to part of a document then in re-examination counsel calling the witness may prove that part of the document or any other parts of the document that are necessary to prove or to explain or modify the document: see Meredith v Innes (1931) 31 SR (NSW) 104 at 112. This is a by product of cross examination on a document that needs to be very carefully considered as you may allow your opponent to get into evidence the whole of a document which in chief he or she could not make admissible. Malcolm J in his article at 276, submits that the right to re-examine on a document arises only where part of the document is actually put to a witness and does not arise if the witness is shown only the document and asked whether the witness adheres to a previous statement. It is also important to remember that if counsel cross examines on parts of a privileged document in his or her possession, counsel waives the client s privilege, not only to those parts but to the whole document itself: see Burnell v British Transport Commission (1956) 1 QB 187 at 190. Procedure for Cross Examination on Documents 1. Close the gates - eliminate all possible explanations before using the document: (d) signature; was aware of contents; eliminate explanation of contents; no reason to deceive the recipient of the document; 2. Put the document to the witness piece by piece. 3. If the document is to be used on credit: so far as possible, get the witness to admit that each portion is contrary to THE sworn evidence; Page 5 of 6

6 if it suits your case - and it usually does - don't ask which contradictory statement is true, but which is false; then you can pursue the witness concerning the false evidence or the deceit that the witness has practised on some third party; 4. If the document is to be used to secure admissions against a party: (d) make sure all the gates are closed; seek the admissions as to the facts without using the document; if you can't get the admissions, then put the document to the witness piece by piece; obtain admissions not only to the facts but as to inferences favourable to you. 5. In some cases, particularly commercial cases, you will want to contradict the statements in a document eg a representation. Here the ordinary techniques of cross examination apply. Obtain admissions as to facts and other documents which can ultimately be used to break down those statements. Page 6 of 6