JCV online test 3

The latest quiz from the Judicial College of Victoria tests understanding of applications to cross-examine under s 38 and also credibility evidence under the Evidence Act.

Cross-examining one's own witnesses isn't well-understood, perhaps because it breaks from a long line of judicial authority on hostile and adverse witnesses. In R v BDF [1999] NSWCCA 98, 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 some commentary now posted here under s 38. It's mostly recycled from a QCIC post from last year, with passing reference to the first thorough application of s 38 in Victorian courts: DPP v McRae [2010] VSC 114. I hope to add more to this soon.

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Dictionary - Part 1 Definitions

Part 1 — Definitions

ACT court

Note

The Commonwealth Act includes a definition of this term.

admission means a previous representation that is—

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and

(b) adverse to the person's interest in the outcome of the proceeding;

asserted fact is defined in section 59;

associated defendant, in relation to a defendant in a criminal proceeding, means a person against whom a prosecution has been instituted, but not yet completed or terminated, for—

(a) an offence that arose in relation to the same events as those in relation to which the offence for which the defendant is being prosecuted arose; or

(b) an offence that relates to or is connected with the offence for which the defendant is being prosecuted;

Australia includes the external Territories;


Australian court means—

(a) the High Court; or
(b) a court exercising federal jurisdiction; or
(c) a court of a State or Territory; or
(d) a judge, justice or arbitrator under an Australian law; or
(e) a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence; or
(f) a person or body that, in exercising a function under an Australian law, is required to apply the laws of evidence;

Australian law means a law of the Commonwealth, a State or a Territory;

Note

See clause 9 of Part 2 of this Dictionary for the meaning of law.
Australian lawyer has the meaning it has in the Legal Profession Act 2004;

Australian legal practitioner has the meaning it has in the Legal Profession Act 2004;

Australian or overseas proceeding means a proceeding (however described) in an Australian court or a foreign court;

Australian Parliament means the Parliament, the Parliament of the Commonwealth or another State or the Legislative Assembly of a Territory;

Australian practising certificate has the meaning it has in the Legal Profession Act 2004;

Australian-registered foreign lawyer has the meaning it has in the Legal Profession Act 2004;

Australian Statistician means the Australian Statistician referred to in section 5(2) of the Australian Bureau of Statistics Act 1975 of the Commonwealth, and includes any person to whom the powers of the Australian Statistician under section 12 of the Census and Statistics Act 1905 of the Commonwealth have been delegated;

business is defined in clause 1 of Part 2 of this Dictionary;

case of a party means the facts in issue in respect of which the party bears the legal burden of proof;

child means a child of any age and includes the meaning given in clause 10(1) of Part 2 of this Dictionary;

civil penalty is defined in clause 3 of Part 2 of this Dictionary;

civil proceeding means a proceeding other than a criminal proceeding;

client is defined in section 117;

coincidence evidence means evidence of a kind referred to in section 98(1) that a party seeks to have adduced for the purpose referred to in that subsection;

coincidence rule means section 98(1);

Commonwealth owned body corporate means a body corporate that, were the Commonwealth a body corporate, would, for the purposes of the Corporations Act 2001 of the Commonwealth, be—

(a) a wholly-owned subsidiary of the Commonwealth; or (b) a wholly-owned subsidiary of another body corporate that is, under this definition, a Commonwealth owned body corporate because of the application of paragraph (a) (including the application of that paragraph together with another application or other applications of this paragraph);

Commonwealth record means a record made by—

(a) a Department within the meaning of the Public Service Act 1999 of the Commonwealth; or

(b) the Parliament, a House of the Parliament, a committee of a House of the Parliament or a committee of the Parliament; or

(c) a person or body, other than a Legislative Assembly, holding office, or exercising power, under or because of the Commonwealth Constitution or a law of the Commonwealth; or

(d) a body or organisation other than a Legislative Assembly, whether incorporated or unincorporated, established for a public purpose—

(i) by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island); or

(ii) by the Governor-General; or
(iii) by a Minister of the Commonwealth; or

(e) any other body or organisation that is a Commonwealth owned body corporate—

and kept or maintained by a person, body or organisation of a kind referred to in paragraph (a), (b), (c), (d) or (e), but does not include a record made by a person or body holding office, or exercising power, under or because of the Commonwealth Constitution or a law of the Commonwealth if the record was not made in connection with holding the office concerned, or exercising the power concerned;

confidential communication is defined in section 117;

confidential document is defined in section 117;

court means Victorian court;

Notes

1. Victorian court is defined in this Dictionary.

2. The Commonwealth Act does not include this definition.

credibility of a person who has made a representation that has been admitted in evidence means the credibility of the representation, and includes the person's ability to observe or remember facts and events about which the person made the representation;

credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence;

credibility evidence is defined in section 101A;

credibility rule means section 102;

criminal proceeding means a prosecution for an offence and includes—

(a)a proceeding for the committal of a person for trial or sentence for an offence; a

(b)a proceeding relating to bail—

but does not include a prosecution for an offence that is a prescribed taxation offence within the meaning of Part III of the Taxation Administration Act 1953 of the Commonwealth;

cross-examination is defined in clause 2(2) of Part 2 of this Dictionary;

cross-examiner means a party who is cross-examining a witness;

de facto partner is defined in clause 11 of Part 2 of this Dictionary;

document means any record of information, and includes—

(a) anything on which there is writing; or
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
(d) a map, plan, drawing or photograph;

Note

See also clause 8 of Part 2 of this Dictionary on the meaning of document.

electronic communication has the same meaning as it has in the Electronic Transactions (Victoria) Act 2000;

examination in chief is defined in clause 2(1) of Part 2 of this Dictionary;

exercise of a function includes performance of a duty;

fax, in relation to a document, means a copy of the document that has been reproduced by facsimile telegraphy;

Note

The Commonwealth Act includes a definition of this term.

foreign court means any court (including any person or body authorised to take or receive evidence, whether on behalf of a court or otherwise and whether or not the person or body is empowered to require the answering of questions or the production of documents) of a foreign country or a part of such a country;

function includes power, authority or duty;

government or official gazette includes the Government Gazette;

Note

The definition of this term in the Commonwealth Act and New South Wales Act differs from this definition.

Governor of a State includes any person for the time being administering the Government of the State;

Governor-General means Governor-General of the Commonwealth and includes any person for the time being administering the Government of the Commonwealth;

Note

The Commonwealth Act does not include definitions of Governor of a State and Governor-General. These definitions are covered by sections 16A and 16B of the Acts Interpretation Act 1901 of the Commonwealth.

hearsay rule means section 59(1);

identification evidence means evidence that is—

(a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where—

(i) the offence for which the defendant is being prosecuted was committed; or
(ii) an act connected to that offence was done—

at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or

(b) a report (whether oral or in writing) of such an assertion;

investigating official means—

(a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior); or

(b) a person appointed by or under an Australian law (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences;

joint sitting means—

(a) in relation to the Parliament of the Commonwealth—a joint sitting of the members of the Senate and of the House of Representatives convened by the Governor-General under section 57 of the Commonwealth Constitution or convened under any Act of the Commonwealth; or

(b) in relation to a bicameral legislature of a State—a joint sitting of both Houses of the legislature convened under a law of the State;

judge, in relation to a proceeding, means the judge, magistrate or other person before whom the proceeding is being held;

law is defined in clause 9 of Part 2 of this Dictionary;

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;

legal counsel means an Australian lawyer employed in or by a government agency or other body who by law is exempted from holding an Australian practising certificate, or who does not require an Australian practising certificate, to engage in legal practice in the course of that employment;

Note

Examples of legal counsel are in-house counsel and government solicitors.

Legislative Assembly means any present or former Legislative Assembly of a Territory, and includes the Australian Capital Territory House of Assembly;

member of the Australian Federal Police includes a special member or a staff member of the Australian Federal Police;

NSW court

Note

The New South Wales Act includes this definition.

offence means an offence against or arising under an Australian law;
opinion rule means section 76;

overseas-registered foreign lawyer has the meaning it has in Part 2.8 of the Legal Profession Act 2004;

parent includes the meaning given in clause 10(2) of Part 2 of this Dictionary;

picture identification evidence is defined in section 115;

police officer means—

(a) a member of the Australian Federal Police; or

(b) a member of the police force of a State or Territory;

postal article has the same meaning as in the Australian Postal Corporation Act 1989 of the Commonwealth;

previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced;

prior consistent statement of a witness means a previous representation that is consistent with evidence given by the witness;

prior inconsistent statement of a witness means a previous representation that is inconsistent with evidence given by the witness;

probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue;

prosecutor means a person who institutes or is responsible for the conduct of a prosecution;

public document means a document that—

(a) forms part of the records of the Crown in any of its capacities; or

(b) forms part of the records of the government of a foreign country; or

(c) forms part of the records of a person or body holding office or exercising a function under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country; or

(d) is being kept by or on behalf of the Crown, such a government or such a person or body—

and includes the records of the proceedings of, and papers presented to—

(e) an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament; and

(f) a legislature of a foreign country, including a House or committee (however described) of such a legislature;

re-examination is defined in clause 2(3) and (4) of Part 2 of this Dictionary;

representation includes—

(a) an express or implied representation (whether oral or in writing); or

(b) a representation to be inferred from conduct; or

(c) a representation not intended by its maker to be communicated to or seen by another person; or

(d) a representation that for any reason is not communicated; seal includes a stamp;

tendency evidence means evidence of a kind referred to in section 971) that a party seeks to have adduced for the purpose referred to in that subsection;

tendency rule means section 97(1);

traditional laws and customs of an Aboriginal or Torres Strait Islander group (including a kinship group) includes any of the traditions, customary laws, customs, observances, practices, knowledge and beliefs of the group;

Victorian court means—

(a) the Supreme Court; or

(b) any other court created by Parliament—

and includes any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of eevidence;

Note

The Commonwealth Act and New South Wales Act do not include this definition.

visual identification evidence is defined in section 114;

witness includes the meaning given in clause 7 of Part 2 of this Dictionary.

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106. Exception - rebutting denials by other evidence

106. Exception-rebutting denials by other evidence

(1) The credibility rule does not apply to evidence that is relevant to a witness's credibility and that is adduced otherwise than from the witness if-

(a) in cross-examination of the witness-

(i) the substance of the evidence was put to the witness; and

(ii) the witness denied, or did not admit or agree to, the substance of the evidence; and

(b) the court gives leave to adduce the evidence.

(2) Leave under subsection (1)(b) is not required if the evidence tends to prove that the witness-

(a) is biased or has a motive for being untruthful; or

(b) has been convicted of an offence, including an offence against the law of a foreign country; or

(c) has made a prior inconsistent statement; or

(d) is, or was, unable to be aware of matters to which his or her evidence relates; or

(e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth.

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107. Exception - application of certain provisions to makers of representations, section 107

107. Exception - application of certain provisions to makers of representations


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Note

This section has been repealed from the Commonwealth Act and New South Wales Act.

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105. Further protections - defendants making unsworn statements

105. Further protections - defendants making unsworn statements


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Note

The Commonwealth Act includes a provision which sets out the situations in which where a defendant in a criminal proceeding has made an unsworn statement evidence may be adduced from a person relating solely to the credibility of the defendant.

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104 Further protections-cross-examination as to credibility

104. Further protections-cross-examination as to credibility

(1) This section applies only to credibility evidence in a criminal proceeding and so applies in addition to section 103.

(2) A defendant must not be cross-examined about a matter that is relevant to the assessment of the defendant's credibility, unless the court gives leave.

(3) Despite subsection (2), leave is not required for cross-examination by the prosecutor about whether the defendant-

(a) is biased or has a motive to be untruthful; or

<(b) is, or was, unable to be aware of or recall matters to which his or her evidence relates; or (c) has made a prior inconsistent statement.

(4) Leave must not be given for cross-examination by the prosecutor under subsection (2) unless evidence adduced by the defendant has been admitted that-

(a) tends to prove that a witness called by the prosecutor has a tendency to be untruthful; and

(b) is relevant solely or mainly to the witness's credibility.

(5) A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to-

(a) the events in relation to which the defendant is being prosecuted; or

(b) the investigation of the offence for which the defendant is being prosecuted.

(6) Leave is not to be given for cross-examination by another defendant unless-

(a) the evidence that the defendant to be cross-examined has given includes evidence adverse to the defendant seeking leave to cross-examine; and

(b) that evidence has been admitted.

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103. Exception - cross-examination as to credibility

103. Exception - cross-examination as to credibility

(1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness.

(2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to-

(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and

(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.

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102. The credibility rule

102. The credibility rule

Credibility evidence about a witness is not admissible.

Notes

1. Specific exceptions to the credibility rule are as follows-

· evidence adduced in cross-examination (sections 103 and 104)
· evidence in rebuttal of denials (section 106)
· evidence to re-establish credibility (section 108)
· evidence of persons with specialised knowledge (section 108C)
· character of accused persons (section 110) Other provisions of this Act, or of other laws, may operate as further exceptions.

2. Sections 108A and 108B deal with the admission of credibility evidence about a person who has made a previous representation but is not a witness.

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101A Credibility evidence

101A. Credibility evidence

Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that-

(a) is relevant only because it affects the assessment of the credibility of the witness or person; or

(b) is relevant-

(i) because it affects the assessment of the credibility of the witness or person; and

(ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.

Notes

1. Sections 60 and 77 will not affect the application of paragraph (b), because they cannot apply to evidence that is yet to be admitted.

2. Section 101A was inserted as a response to the decision of the High Court of Australia in Adam v The Queen (2001) 207 CLR 96.

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65. Exception-criminal proceedings if maker not available

65. Exception-criminal proceedings if maker not available

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation-

(a) was made under a duty to make that representation or to make representations of that kind; or

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

(c) was made in circumstances that make it highly probable that the representation is reliable; or

(d) was-

(i) against the interests of the person who made it at the time it was made; and

(ii) made in circumstances that make it likely that the representation is reliable.

Note

Section 67 imposes notice requirements relating to this subsection.

(3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied-

a) examined the person who made the representation about it; or

(b) had a reasonable opportunity to cross-examine the person who made the representation about it.

Note

Section 67 imposes notice requirements relating to this subsection.

(4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that-

(a) is given in an Australian or overseas proceeding; and

(b) is admitted into evidence in the criminal proceeding because of
subsection (3)-

cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the
representation.

(5) For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but-

(a) could reasonably have been present at that time; and

(b) if present could have cross-examined the person

.

(6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by-

(a) the person to whom, or the court or other body to which, the representation was made; or

(b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made; or

(c) the person or body responsible for producing the transcript or recording.

(7) Without limiting subsection (2)(d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends-

(a) to damage the person's reputation; or

(b) to show that the person has committed an offence for which the person has not been convicted; or

(c) to show that the person is liable in an action for damages.

(8) The hearsay rule does not apply to-

(a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made; or

(b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.

Note

Section 67 imposes notice requirements relating to this subsection.

(9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that-

(a) is adduced by another party; and

(b) is given by a person who saw, heard or otherwise perceived the other representation being made.

Note

Clause 4 of Part 2 of the Dictionary is about the availability of persons.

The Dictionary provides that an asserted fact is defined at sub-s 59(1).

Evidence admissible under this section may nevertheless excluded in the exercise of discretion, notably s 137. In R v Suteski [2002] NSWCCA 509 it was held the trial judge properly admitted the record of interview of a co-accused who was not available to be called as a witness. The Court of Appeal held that the forensic disadvantages to the accused were appropriately considered and had not caused unfair prejudice. The recording was tendered with a transcript provided as an aide.

The Victorian Court of Appeal first considered an interlocutory appeal from the County Court in R v Darmody [2010] VSCA 41. The prosecutor sought and was granted leave by the trial judge to lead evidence from the committal hearing after the Crown witness refused to give evidence at trial, apparently under intimidation. The Court found that clause 4(1)(f) of Pt 2 of the Dictionary was satisfied in that,

All reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

The appeal upheld the trial judge's decision to allow the evidence under s 65. The Court confirmed that discretion to exclude under s 137 existed but determined that, in this case, the probative value was not outweighed by the prejudicial effect.

In DPP v B B; DPP v Q N [2010] VSCA 211 the trial judge admitted a dead man's statement under s 65(3) but then rejected the evidence in exercise of discretion under s 137. The following reasons were given [related in the appeal, at 10]:

... the combination of effective inability to fully explore cross-examination because of pressure from the magistrate and lack of clarity as to the actual responses to cross-examination because of the difficulty raised by the interpreter, together with the inability of the jury to see the witness in my view, is properly to be characterised as unfair prejudice.

The Court of Appeal held these grounds were insufficient in the circumstances, either alone or in combination.

Bongiorno JA [at 16, Harper and Hansen JJA also agreeing]:

16 In enacting s 65(3) in the form it is, the legislature placed alternative primary conditions on its application. Those conditions require that the accused has either cross-examined the relevant witness in an earlier proceeding about the ‘previous representation’ of which hearsay evidence is sought to be adduced or he had a reasonable opportunity of doing so. The legislature clearly anticipated a situation where hearsay would be rendered admissible by s 65(3) even where there was, in fact, no cross-examination at a previous proceeding of the relevant witness ...

17 Section 65(3) is not the first Victorian statutory provision which permitted prior depositions to be tendered as evidence at trial. Section 55AB of the Evidence Act 1958, which has since been repealed, provided for the use of depositions taken at committal in a subsequent trial where a witness was unavailable. The conditions for use of such a deposition against an accused under that provision were that the accused must have been present when the deposition was taken and he (or his lawyer) must have had a full opportunity of cross-examining the witness. This section, in substance, if not in form, can be traced back, at least, to the Justices Act 1890 in this State and appears to have had its origin in the Indictable Offences Act 1848 (UK) (Jervis’s Act), the first English provision which introduced the statutory exception to the hearsay rule rendering a deposition admissible at trial if a witness was unavailable for certain specific reasons set out in the statute. It could be argued that the substitution of the word ‘reasonable’ in the current Evidence Act for the word ‘full’ in earlier legislation compels a conclusion that the legislature intended the qualifying condition for admissibility to be now less onerous than it was before.

In a judicial review of the dismissal of charges from the Magistrates' Court, the Supreme Court ruled that the magistrate had wrongly refused to admit evidence under >section 65 (as an exception to the hearsay rule) after a complainant had sucessfully objected under section 18 to giving evidence against her de facto partner: DPP v Nicholls [2010] VSC 397.

In the similar case of DPP v Easwaralingam & Anor [2010] VSC 437 the Supreme Court declined to provide a blanket statement of what might comprise reasonable notice under s 67. The prosecution's principal witness was hospitalised shortly before the hearing. On judicial review, the Court ruled the magistrate had gone about the process of declining the adjournment and refusing to admit the witness's statement under s 65.

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55. Relevant evidence

55. Relevant evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) In particular, evidence is not taken to be irrelevant only because it relates only to-

(a) the credibility of a witness; or

(b) the admissibility of other evidence; or

(c) a failure to adduce evidence.

Relevance is a preliminary threshold test: DPP v McRae [2010] VSC 114. Unlike other exclusionary rules in the Evidence Act, evidence which is not relevant is not admissible. This is so even though it may satisfy other statutory tests of admissibility.

What is a fact in issue will be determined by the trial judge. In R v Middendorp [2010] VSC 147, Byrne J said [at 17]:

17 This is a criminal trial. The accused by pleading not guilty raises the general issue. At common law an accused is incapable of admitting a fact. Pursuant to s 184 of the Evidence Act an accused may admit matters of fact, subject to certain conditions or agree facts pursuant to s 191. Under s 183 of the Criminal Procedure Act an accused may make an admission in response to a notice of pre-trial admissions given by the prosecution under s 182. None of these courses appears to have been taken in this case, so that all factual matters to be proved by the prosecution are technically facts in issue.

In R v Fieldman (Ruling No 1) [2010] VSC 257 the prior convictions of the deceased were held to be relevant, in that they may have motivated the deceased to flee from the accused with particular desperation. Kaye J held that the evidence was substantially more probative than prejudicial, and declined to exercise his discretion under s 135.

The High Court considered the NSW Evidence Act in Smith v The Queen (2001) 206 CLR 650 [at 654]:

In determining relevance, it is fundamentally important to identify what are the issues at the trial. On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged. They will, therefore, be issues about the facts which constitute those elements. Behind those ultimate issues there will often be many issues about facts relevant to facts in issue. In proceedings in which the Evidence Act 1995 (NSW) applies, as it did here, the question of relevance must be answered by applying Pt 3.1 of the Act and s 55 in particular. Thus, the question is whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact, here the jury, of the probability of the existence of a fact in issue in the proceeding.

A consideration of relevance requires consideration of the process of reasoning by which the information could rationally affect the assessment of the probabilities. The word rationally is significant in this context. In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the jury’s assessment of the probability of the existence of a fact in issue at the trial: Lasry J in DPP v Williams Ruling No 1) [2010] VSC 34 at 13, citing the High Court in Washer v Western Australia [2007] HCA 48.

Relevance is not reliant on reliability: Papakosmas v The Queen (1999) 196 CLR 297, McHugh at 321. The court may also make a finding of provisional relevancy if further evidence to be given will shed light on whether the evidence is truly relevant or not: s 57. Questions are not irrelevant simply because some potential answers may not rationally affect the probability of the existence of a fact in issue: Evans v The Queen (2007) ALJR 250 [at 157], though an irrelevant answer may be.

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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.

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