Section 38 allows a party, with the leave of the court, to cross-examine its own witnesses about certain matters.
Section 192 sets out the factors the court must take into account when deciding whether to grant leave under section 38.
Main Changes Introduced by the Uniform Evidence Act
Previously, a party could only cross-examine one of its own witnesses if it established that the witness was "hostile" (i.e., that the witness was "not desirous of telling the truth at the instance of the party calling him"). Section 38 lowers the threshold for obtaining leave to cross-examine a witness.
Under the Evidence Act 2008, a party may call witnesses for the specific purpose of cross-examining them under s38, and leading proof of their prior inconsistent statements. The prosecution can then use those statements to prove the facts asserted (Evidence Act 2008 s60). Under the common law, such conduct would have been considered an abuse of process, as the prior inconsistent statements would only have been admissible to help the jury assess the witnesses’ credibility (see Blewitt v R (1988) 80 ALR 353).
Common Law Has Been Abrogated
The common law concerning hostile witnesses has been abrogated by Evidence Act 20008 s38 (R v Milat, NSWSC, 23/4/1996).
This means that it is no longer necessary for judges to differentiate between expected and unexpected evidence from a witness. Section 38 draws no such distinction (R v Milat, NSWSC, 23/4/1996).
A Party May Cross-Examine Its Own Witnesses
With the leave of the court, a party who calls a witness may cross-examine that witness about:
Evidence the witness gives that is unfavourable to the party;
Matters about which the witness may reasonably be supposed to have knowledge, and which it appears the witness is not making a genuine attempt to give evidence about; or
Whether the witness has, at any time, made a prior inconsistent statement (Evidence Act 2008 s38).
Cross-examination under s38 must be about one of the three matters listed above. A party cannot undertake wide-ranging cross-examination on any matter it wishes (R v Le (2002) 54 NSWLR 474; R v Hogan  NSWCCA 292).
However, cross-examination under s38 is not limited to directly questioning the witness about one of the three listed matters. A party may question the witness about topics related to the three listed matters (R v Le (2002) 54 NSWLR 474; R v Hogan  NSWCCA 292).
A party may also (with the leave of the court) question the witness about matters relevant only to the witness’ credibility, with a view to shaking the witness’ credibility on the listed matters (Evidence Act 2008 s38(3); R v Le (2002) 54 NSWLR 474). 
Leave of the Court is Required
A party may only cross-examine a witness under s38 with the leave of the court (Evidence Act 2008 s38(1)).
The court’s leave is also required to question a witness about matters relevant only to the witness’ credibility (Evidence Act 2008 s38(3)).
Applications under s38 may be made in the absence of the jury and in the absence of the witness (see Adam v R (2001) 207 CLR 96; R v Hogan  NSWCCA 292).
In determining whether to grant leave, the court must take into account the matters specified in s38(6) and s192(2) of the Evidence Act 2008 (Stanoevski v R (2001) 202 CLR 115).
This topic addresses the directions the judge may give the jury when he or she grants leave under s38. For information on when the judge should grant leave, and any limitations on cross-examination, see S Odgers, Uniform Evidence Law, [1.2.3240] – [1.2.3400].
There are three main directions a judge may give when a witness is cross-examined under s38:
A direction about his or her decision to grant leave under s38;
A direction about prior inconsistent statements;
A warning about the unreliability of the evidence.
The need for any directions on an unfavourable witness will depend on whether a direction is sought or whether there are substantial and compelling reasons for giving a direction in the absence of any request (Jury Directions Act 2015 ss14 - 16). See Directions Under Jury Directions Act 2015 for information on when directions are required.
Decision to grant leave
A judge does not always need to inform the jury of his or her decision to grant leave under s38 (Lee v R  NSWCCA 259).
If the judge chooses to comment on the grant of leave, he or she may explain that cross-examination under s38 is an unusual process, in that the witness gives evidence in response to leading questions, rather than providing an account in evidence-in-chief in response to non-leading questions (R v Lam (Ruling No 9)  VSC 283).
In explaining the decision to grant leave, the judge must be careful not to suggest that the decision involves an adverse reflection on the witness’ credit (Lee v R  NSWCCA 259).
It is not necessary to inform the jury of the detail of the decision to grant leave (Lee v R  NSWCCA 259).
In some cases, it may necessary to warn the jury not to speculate on the reasons why the witness gave unfavourable or inconsistent evidence and must not draw any inference adverse to the accused from the witness’ behaviour (see R v Sekhon, Vic CA, 23/10/92).
Prior inconsistent statements
Where cross-examination under s38 leads to evidence of a prior inconsistent statement being admitted, it may be appropriate to direct the jury about the use of that statement (see, e.g., R v Lam (Ruling No 9)  VSC 283).
At common law, there was a particular need for directions on the weight of the evidence when the prior statement was more damaging to the accused than the witness’ evidence in court (Morris v R (1987) 163 CLR 454; R v Perea (1986) 2 Qd R 431; R v Nguyen (1989) 2 Qd R 72).
A grant of leave under s38 does not neutralise the witness’ evidence or render it inherently worthless. The jury must decide what weight it will place on the witness’ evidence in light of any inconsistent statements and any other matters that may affect the witness’ reliability (R v Zorad  2 NSWLR 764; Morris v R (1987) 163 CLR 454).
While a judge may be required to give an unreliability warning about evidence admitted under s38, the mere fact that leave to cross-examine a witness has been granted under s38 does not mean that an unreliability warning must be given (Lee v R  NSWCCA 259).
Unreliable evidence warnings are governed by Jury Directions Act 2015 s32. A s32 warning may be given if:
The evidence in question is "of a kind that may be unreliable"; and
The party requesting the warning has identified the significant matters that may make the evidence unreliable (Jury Directions Act 2015 s32).
Depending on the circumstances, an unreliable evidence warning may also be required on another ground (e.g., if the witness is criminally concerned in the events giving rise to the proceeding). See Unreliable Evidence Warning for information about the grounds on which a warning may be required.
Limiting the Use of Evidence Under s136
A judge may limit the use of evidence given under s38 if there is a danger that a particular use of the evidence might be:
Unfairly prejudicial to a party; or
Misleading or confusing (Evidence Act 2008 s136).
It will usually only be necessary to consider this matter when counsel applies for a s136 order (Pavitt v R (2007) 169 A Crim R 452).
At common law, juries were generally prohibited from using hearsay evidence (such as a prior inconsistent statement) to prove the existence of the facts asserted in the representation, due to the potential unreliability of that evidence. It was the intention of the Evidence Act 2008 to change this position, and allow evidence that was admitted either as an exception to the hearsay rule, or for a non-hearsay purpose, to be used to prove the existence of asserted facts (see Evidence Act 2008 s60).
Judges should therefore not automatically prevent previous representations that are admitted under the Evidence Act 2008 from being used to prove the existence of any asserted facts. To do so would be to constrain the legislation by reference to common law rules and distinctions which the legislature has discarded (Papakosmas v R (1999) 196 CLR 297).
In determining whether to limit the use of previous representations, the judge should consider whether any warning under s32 regarding the dangers of relying on hearsay evidence (see above) would limit the risk of unfair prejudice (see R v BD (1997) 94 A Crim R 131).
If the judge decides to limit the use of evidence under Evidence Act 2008 s136, he or she may instruct the jury about the effect of that decision (see Jury Directions Act 2015 ss14 - 16; Aslett v R  NSWCCA 49; R v Robinson  NSWCCA 188).
In contrast, if the judge does not limit the use of the evidence, there is generally no need to instruct the jury that it may use the evidence for a hearsay purpose. The jury will usually assume that it can use the evidence for a hearsay purpose without the need for a direction of law (R v Hilder (1997) 97 A Crim R 70).
 Any cross-examination about a witness’s credibility must comply with the provisions in Part 3.7 of the Evidence Act 2008 (‘Credibility’).
 Under s38(1)(a), a judge may grant leave where the witness gives evidence that is ‘unfavourable’ to a party. Evidence is ‘unfavourable’ for this purpose when it is ‘not favourable’. This includes evidence of a witness who has genuinely forgotten the events in question (R v Lozano, NSWCCA, 10/6/97, R v Souleyman (1996) 40 NSWLR 712; R v McRae  VSC 114).
 For example, while the judge may inform the jury that he or she has determined that the witness has given evidence that is unfavourable (as that will usually be obvious), it would be dangerous to tell the jury of the terms of s38(1)(b) or (c).