38. Unfavourable witnesses

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) 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 the party's intention to seek leave; and

Note

Paragraph (a) differs from the Commonwealth Act and New South Wales Act.

(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.

R v Souleyman (1996) NSWRLR 712 established that unfavourable isn't the same as hostile or adverse, merely meaning "not favourable".(Though in R v Kneebone (1999) NSWLR 450, it was found that a witness's evidence was not necessarily unfavourable just for failing to accord with the Crown's case theory).

A claim of no recollection might be considered unfavourable: GAC [2007] NSWCCA 315, see also R v Lozano [1997] NSWSC 237. The application is usually made in examination-in-chief, but may be made in cross-examination: R v Pantoja [1998] NSWSC 565. Or it might be made in re-examination in exceptional circumstances: R v Kingswell [1998] NSWSC 412 and R v BDF [1999] NSWCCA 98.

In BDF, Dowd J observed:

[34] There is a considerable tendency for those familiar with the law before the Act, to find the procedure of s 38 of the Act somewhat difficult to adjust to. Section 38 of the Act is one of the most important provisions of the new Evidence Act. Although there appears to be something unjust about a witness who is cross-examined by the opposing party and then subject to cross-examination by the party calling the witness, this is clearly the intention of the Act. The unfavourable evidence which comes out may come out at any stage.

There's no requirement that the unfavourable evidence to be unexpected, and nothing improper about calling a witness to put to them a prior inconsistent statement (see the discussion of Lee's case, below). Once admitted, a prior inconsistent statment can be used by the trier of fact as the truth of it, even if it is a statement the witness now denies is truthful: Adam v The Queen (2001) 207 CLR 96 (a case where Stephen Odgers appeared for the appellant). The prosecution can call a witness intending or at least prepared to make a s 38 application. Despite sub-s (7), the cross-examination should be restricted to the extent of the unfavourable evidence: R v Hogan [2001] NSWCCA 292, also GAC.

The Victorian Supreme Court first encountered s 38 in its trial jurisdiction in DPP v McRae [2010] VSC 114. In that case, the Crown made application to cross-examine a number of witnesses it intended to call at trial. Curtain J applied NSW authorities in allowing this to occur, and declined to exercise discretion to reject their evidence in the exercise of judicial discretion under s 137, ruling that allowing the cross-examination would cause no unfair prejudice to the accused.

In DPP v Docking (Ruling No 1) [2010] VSC 408 the trial judge (Lasry J) determined an application to exclude prior inconsistent statements which had been put to unfavourable witnesses by the prosecutor after succesful applications for leave under s 38. It was common ground that, subject to the judge's discretion under s 136, the statements were admissible not just for assessing the credit of the witnesses but also of the evidence the statments contained: Papakosmas v R (1999) 196 CLR 297.

Counsel for the accused sought to have the evidence limited to credibility purposes, relying on the apparent illiteracy of one witness and a general refusal to adopt the statements as accurate. Lasry J declined to impose such a restriction on the jury's use of the evidence.