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 2 - Other Definitions

Dictionary Part 2 - Other Definitions

1 References to businesses

(1) A reference in this Act to a business includes a reference to the following—

(a) a profession, calling, occupation, trade or undertaking;

(b) an activity engaged in or carried on by the Crown in any of its capacities;

(c) an activity engaged in or carried on by the government of a foreign country;

(d) an activity engaged in or carried on by a person or body holding office or exercising power under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country, being an activity engaged in or carried on in the performance of the functions of the office or in the exercise of the power (otherwise than in a private capacity);

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

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

(2) A reference in this Act to a business also includes a reference to—

(a) a business that is not engaged in or carried on for profit; or

(b) a business engaged in or carried on outside Australia.

2 References to examination in chief, cross-examination and re-examination

(1) A reference in this Act to examination in chief of a witness is a reference to the questioning of a witness by the party who called the witness to give evidence, not being questioning that is re examination.

(2) A reference in this Act to cross-examination of a witness is a reference to the questioning of a witness by a party other than the party who called the witness to give evidence.

(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.

(4) If a party has recalled a witness who has already given evidence, a reference in this Act to re-examination of a witness does not include a reference to the questioning of the witness by that party before the witness is questioned by another party.

3 References to civil penalties

For the purposes of this Act, a person is taken to be liable to a civil penalty if, in an Australian or overseas proceeding (other than a criminal proceeding), the person would be liable to a penalty arising under an Australian law or a law of a foreign country.

4 Unavailability of persons

(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if—

(a) the person is dead; or

(b) the person is, for any reason other than the application of section 16 (Competence and compellability—judges and jurors), not competent to give the evidence about the fact; or

(c) it would be unlawful for the person to give evidence about the fact; or

(d) a provision of this Act prohibits the evidence being given; or

(e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success; or

(f) 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.

(g) the person is mentally or physically unable to give evidence and it is not reasonably practicable to overcome that inability.

(2) In all other cases the person is taken to be available to give evidence about the fact.

5 Unavailability of documents and things

For the purposes of this Act, a document or thing is taken not to be available to a party if and only if—

(a) it cannot be found after reasonable inquiry and search by the party; or

(b) it was destroyed by the party, or by a person on behalf of the party, otherwise than in bad faith, or was destroyed by another person; or

(c) it would be impractical to produce the document or thing during the course of the proceeding; or

(d) production of the document or thing during the course of the proceeding could render a person liable to conviction for an offence; or

(e) it is not in the possession or under the control of the party and—

(i) it cannot be obtained by any judicial procedure of the court; or

(ii) it is in the possession or under the control of another party to the proceeding concerned who knows or might reasonably be expected to know that evidence of the contents of the document, or evidence of the thing, is likely to be relevant in the proceeding; or

(iii) it was in the possession or under the control of such a party at a time when that party knew or might reasonably be expected to have known that such evidence was likely to be relevant in the proceeding.

6 Representations in documents

For the purposes of this Act, a representation contained in a document is taken to have been made by a person if—

(a) the document was written, made or otherwise produced by the person; or

(b) the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document.

7 Witnesses

(1) A reference in this Act to a witness includes a reference to a party giving evidence.

(2) A reference in this Act to a witness who has been called by a party to give evidence includes a reference to the party giving evidence.

(3) A reference in this clause to a party includes a defendant in a criminal proceeding.

8 References to documents

A reference in this Act to a document includes a reference to—

(a) any part of the document; or

(b) any copy, reproduction or duplicate of the document or of any part of the document; or

(c) any part of such a copy, reproduction or duplicate.

8A References to offices etc.

In this Act—

(a) a reference to a person appointed or holding office under or because of an Australian law or a law of the Commonwealth includes a reference to an APS employee within the meaning of the Public Service Act 1999 of the Commonwealth; and

(b) in that context, a reference to an office is a reference to a position occupied by the APS employee concerned, and a reference to an officer includes a reference to a Secretary, or APS employee, within the meaning of the Act.

9 References to laws

(1) A reference in this Act to a law of the Commonwealth, a State, a Territory or a foreign country is a reference to a law (whether written or unwritten) of or in force in that place.

(2) A reference in this Act to an Australian law is a reference to an Australian law (whether written or unwritten) of or in force in Australia.

10 References to children and parents

(1) A reference in this Act to a child of a person includes a reference to—

(a) an adopted child or ex-nuptial child of the person; or

(b) a child living with the person as if the child were a member of the person's family.

(2) A reference in this Act to a parent of a person includes a reference to—

(a) an adoptive parent of the person; or

(b) if the person is an ex-nuptial child—the person's natural father; or

(c) the person with whom a child is living as if the child were a member of the person's family.

11 References to de facto partners

(1) A reference in this Act to a de facto partner of a person is a reference to a person who is in a de facto relationship with the person.

(2) A person is in a de facto relationship with another person if the two persons have a relationship as a couple and are not legally married.

(3) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as are relevant in the circumstances of the particular case—

(a) the duration of the relationship;

(b) the nature and extent of their common residence;

(c) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(d) the ownership, use and acquisition of their property;

(e) the degree of mutual commitment to a shared life;

(f) the care and support of children;

(g) the reputation and public aspects of the relationship.

(4) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether two persons have a relationship as a couple.

(5) For the purposes of subclause (3), the following matters are irrelevant—

(a) whether the persons are different sexes or the same sex;

(b) whether either of the persons is legally married to someone else or in another de facto relationship.

(6) Despite subclauses (3) and (4), a person is in a de facto relationship with another person if those two persons are in a registered relationship within the meaning of the Relationships Act 2008.

Note

The Commonwealth Act and New South Wales Act do not include subclause (6).

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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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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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46. Leave to recall witnesses

46. Leave to recall witnesses

(1) The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and-

(a) it contradicts evidence about the matter given by the witness in examination in chief; or

(b) the witness could have given evidence about the matter in examination-in-chief.

(2) A reference in this section to a matter raised by evidence adduced by another party includes a reference to an inference drawn from, or that the party intends to draw from, that evidence.

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44. Previous representations of other persons

44. Previous representations of other persons

(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;

(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 dentification.

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43. Prior inconsistent statements of witnesses

43. Prior inconsistent statements of witnesses

(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.

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40. Witness called in error

40. Witness called in error

A party is not to cross-examine a witness who has been called in error by another party and has not been questioned by that other party about a matter relevant to a question to be determined in the proceeding.

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39. Limits on re-examination

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

(b) other questions may not be put to the witness unless the court gives leave.

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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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37. Leading questions

37. Leading questions

(1) A leading question must not be put to a witness in examination in chief or in re-examination unless-

(a) the court gives leave; or

(b) the question relates to a matter introductory to the witness's evidence; or

(c) 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 an Australian legal practitioner, legal counsel or prosecutor; or

(d) the question relates to a matter that is not in dispute; or

(e) 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.

(2) Unless the court otherwise directs, subsection (1) does not apply in civil proceedings to a question that relates to an investigation, inspection or report that the witness made in the course of carrying out public or official duties.

(3) Subsection (1) does not prevent a court from exercising power under rules of court to allow a written statement or report to be tendered or treated as evidence in chief of its maker.

Note

Leading question is defined in the Dictionary.

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