With the leave of the court, an unfavourable witness may be questioned as if being cross-examined. ĥ.44 As Smith and Holdenson point out, apart from a limited procedure of putting facts set out in the statement of the witness to the witness in the form of leading questions with the court’s leave, at common law there is no remedy for this problem other than calling further witnesses to contradict that witness or convincing the court that the witness is hostile.ĥ.45 The effect of having a witness declared unfavourable under s 38 is significant.
BADGERING THE WITNESS TRIAL
It may be that witnesses are called who gave detailed statements about the events in question but at the trial claim to have no recollection. It may be that there are witnesses, for example, that the Crown would rather not call because they do not assist the Crown to advance its case against the accused. Trial counsel have all found themselves in the unenviable position of having called a witness only to find that the witness gives evidence which is either damaging to the client’s case or assists in the case of the other party. ĥ.43 Justice Tim Smith and Paul Holdenson QC have discussed the limitations of the common law in dealing with unhelpful witnesses. The ALRC found that there was no satisfactory rationale for such a stringent test and proposed that a party be permitted to cross-examine its own witness where the evidence being given is unfavourable to that party. ĥ.42 In the previous Evidence inquiry, the hostile witness rule was criticised as irrational and anachronistic. To be declared hostile, the court must find that the witness is deliberately withholding or lying about material evidence. (c) whether the witness has, at any time, made a prior inconsistent statement.ĥ.41 Under the common law, a party cannot cross-examine its own witness unless the witness is declared hostile. (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 (a) evidence given by the witness that is unfavourable to the party or (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: Unfavourable witnessesĥ.40 Section 38 of the uniform Evidence Acts made a significant change to the law of evidence. These sections are discussed further below. Under s 44(2) and (3), limited cross-examination may be undertaken on the previous representations of another person.
BADGERING THE WITNESS FULL
Cross-examination may be undertaken on a witness’ prior inconsistent statement without the need to provide full particulars or show the document in question.
(d) the witness’s age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness’s answers.ĥ.39 Cross-examination on documents is regulated by ss 43 and 44. (c) the witness is sympathetic to the party conducting the cross-examination, either generally or about a particular matter and
(b) the witness has an interest consistent with an interest of the cross-examiner and (a) evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness and Without limiting the matters that the court may take into account in deciding whether to disallow the question or give such a direction, it is to take into account the extent to which: However, the court may disallow the question or direct the witness not to answer it, taking into account a number of factors. Section 42 establishes that leading questions may be asked in cross-examination. ĥ.38 Section 41 provides that the court may disallow questions on the basis that they are misleading or unduly annoying, harassing, intimidating, offensive, oppressive or repetitive. For example, s 40 adopts the rule that where a witness has been called in error and is not questioned, that witness is not then available to the other party for cross-examination. Uniform Evidence Acts and other legislationĥ.37 The provisions of the uniform Evidence Acts that concern the rules for cross-examination substantially mirror practices under the common law.
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