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Unfavourable witnesses: adduction and admissibility of prior inconsistent statements

Facts

Gillian Carr is charged with armed robbery of the service station at which she works. The Crown case is that she robbed it with her friend, Paris. The accused’s sister, Gitanjali, also works at the service station. Gitanjali was interviewed by a police officer a month after the robbery and her statement includes:

  • Just prior to the offence Gillian was seeing Paris once or twice a week
  • Paris had been saying things like ‘don’t worry Gillian, it’s all organised, just tell us what time they do the banking’
  • Paris came into the service station one day and showed me a gun

At trial, Gitanjali gives evidence in chief and the following exchange takes place:

Crown prosecutor: Q – How often did Gillian and Paris meet?

Gitanjali: A – Once or twice a week.

Q: And what had they been talking about?

A: I remember they were talking about how the service station operates.

Q: Anything in particular?

A: I can’t remember that much, but I remember they were talking about the times of certain things, like opening and closing times and so on.

Q: Moving on, did Paris ever bring anything into the station to show you?

A: No, nothing I can remember.

Q: I’d like to make an application in the absence of the jury and the witness.

The jury and witness leave and the Crown prosecutor makes an application under s 38 to cross-examine Gitanjali.

1. What is the most appropriate basis for cross-examining Gitanjali?

Correct

Gitanjali’s answers to the first and second questions, while incomplete, are not inconsistent with her police statement. However Gitanjali’s third answer, that she cannot remember Paris brining anything into the station is directly inconsistent with her earlier statement that Paris brought a gun into the station. Therefore the most appropriate basis for an application is s 38(1)(c), which requires that Gitanjali made a prior inconsistent statement.

Incorrect

Section 38 replaces the common law ‘hostile witness’ rule.

Incorrect

While s 38(1)(a) is broader than the common law test that the evidence given by the witness is ‘adverse’, it is not clear that the Gitanjali’s evidence is ‘unfavourable’. The prevailing view is that evidence is ‘unfavourable’ if it is ‘not favourable’ to the party calling the witness (R v Souleyman (1996) 40 NSWLR 712 at 715; R v Taylor [2003] NSWCCA 194 at [74]), though some judges have added a rider that the witness must also not be making a genuine attempt to give evidence (Adam v R (2001) 207 CLR 96 at [27]; Hadgkiss v CFMEU (2006) 152 FCR 560 at [9]). Given this uncertainty, the more appropriate basis for applying to cross-examine Gitanjali is s 38(1)(c), though in practice, a judge is likely to grant leave under both ss 38(1)(a) and 38(1)(c).

Incorrect

Gitanjali’s answer to the second question is a genuine attempt to give evidence, though it is somewhat incomplete as she fails to mention the ‘banking’ exchange. Gitanjali’s answer to the third question that she cannot remember Paris bringing anything into the station is inconsistent with her prior statement. However, Gitanjali may not be able to remember this event or the details of her prior statement and, if so, it cannot be said that she has not made a genuine attempt to give evidence.

2. In deciding whether to grant leave, what must the court take into account?

Correct

Section 38(6) requires the court to take into account whether the party (in this case the prosecution) gave notice at the earliest opportunity of its intention to seek leave and the matters on which and the extent to which the witness has been or is likely to be questioned by another party. Section 135 permits the court the exclude evidence if its probative value is substantially outweighed by the danger that the evidence may be unfairly prejudicial, be misleading or confusing or cause or result in undue waste of time. Section 137 requires the court to exclude evidence adduced by the prosecution if its probative value is outweighed by the risk of unfair prejudice. Finally, section 192(2), without limiting matters that the court may take into account, prescribes matters that the court must take into account whenever giving leave, permission or a direction under the Act.

Incorrect

Although the court must take into account the matters in s 38(6), it must also take into account the matters in ss 135, s137 and 192(2).

Incorrect

Although the court must take into account the matters in ss 135 and 137, it must also take into account the matters in ss 38(6) and 192(2).

Incorrect

Although the court must take into account the matters in s 192(2), it must also take into account the matters in ss 38(6), 135 and 137.

3. Should the court grant leave to cross-examine?

Correct

The evidence is reasonably important as it involves a weapon that may have been used in the armed robbery. Given the value of the evidence, the hearing would not be ‘unduly’ extended and there is no identifiable unfairness to the defence or the witness in allowing cross-examination.

Incorrect

On the facts it appears that the prosecution thought that Gitanjali would give evidence consistent with her prior statement. Therefore the prosecution did not have any prior opportunity to give notice and has given notice at the earliest possible opportunity to do so.

Incorrect

Defence counsel are unlikely to cross-examine Gitanjali on her police statement, and so the evidence of the gun is unlikely to be adduced. Even if the defence did cross-examine her, the jury may give her evidence undue weight because it was adduced by the prosecution, without the prosecutor seeking to challenge the evidence: Randall v R (2004) 146 A Crim R 197.

Incorrect

Though any potential unfairness may be cured by controlling the order in which the parties cross-examine the witness under ss 38(4) or (5), it is not clear that the court should more readily grant leave to the prosecution in a criminal proceeding.

4. What evidence should the grant of leave to cross-examine cover?

Correct

Section 38(1) permits questioning of the witnesses only about the matters in subsections (a)-(c). A person asks questions ‘about’ a subject when he or she asks questions ‘concerning it, or in regard to it, or connected with it, or concerned with it’: R v Le (2002) 130 A Crim R 44 at [59]. The judge should give leave to cross-examine Gitanjali about her prior inconsistent statement, in which she stated that Paris had shown her a gun.

Incorrect

Section 38(1) permits questioning of witnesses only about the matters in subsections (a)-(c). Gitanjali’s evidence of how often Gillian and Paris met is not unfavourable to the prosecution, a matter of which the witness is not making a genuine attempt to give evidence or a matter about which the witness has made a prior inconsistent statement.

Incorrect

Section 38(1) permits questioning of witnesses only about the matters in subsections (a)-(c). Gitanjali’s evidence of the general operation of the service station is not unfavourable to the prosecution, a matter of which the witness is not making a genuine attempt to give evidence or a matter about which the witness has made a prior inconsistent statement.

Incorrect

Section 38(1) permits questioning of witnesses only about the matters in subsections (a)-(c). The court should not permit ‘open slather’ cross-examination under s 38: R v White (2003) 140 A Crim R 63 at [68]; R v Le (2002) 54 NSWLR 474.

5. What section should the cross-examiner have particular regard to in cross-examining Gitanjali?

Correct

Under s 43(2), if Gitanjali does not admit to making the prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from Gitanjali unless, during the cross-examination, the cross-examiner informs Gitanjali of enough of the circumstances of the making of the statement to enable the witness to identify the statement; and draws the witness’s attention to so much of the statement as is inconsistent with the witness’s evidence. Failure to comply with s 43 will restrict the prosecutor’s right to lead other evidence to prove the prior inconsistent statement.

Incorrect

Section 41 is relevant because an improper question could be put to Gitanjali in cross-examination by the prosecution. However, it is not particularly relevant as regard must always be had to s 41 when a witness is questioned.

Incorrect

While the prosecutor may put leading questions to the witness under s 42 when cross-examining Gitanjali, there is nothing in the circumstances of this case to make this section particularly relevant.

Incorrect

Section 44 is not relevant because Gitanjali is not going to be cross-examined about previous representations made by a person other than herself.

Facts

Leave is granted under s 38(1)(c) and Gitanjali is cross-examined. She continues to take the same stance that she took during evidence in chief. The prosecution accordingly seek to tender Gitanjali’s statement through the relevant police officer.

6. What is the first question to ask in determining whether or not to admit the evidence?

Correct

The primary rule of admissibility is found in s 56 which provides that except as otherwise provided by the Act, evidence that is relevant in a proceeding is admissible in the proceeding, and evidence that is not relevant in a proceeding is not admissible in the proceeding.

Incorrect

Although evidence must be adduced in accordance with Chapter 2 (including ss 43 and 45), the first question to determining whether or not to admit evidence should always be whether the evidence is relevant.

Incorrect

Although all of the exclusionary rules in the Act should be considered, the first admissibility question is whether or not the evidence is relevant in the proceeding. This is because the primary rule of admissibility (in s 56) is that, except as otherwise provided by the Act, evidence that is relevant in a proceeding is admissible in the proceeding, and evidence that is not relevant in a proceeding is not admissible in the proceeding.

Incorrect

Although all of the exclusionary rules in the Act should be considered, the first admissibility question is whether or not the evidence is relevant in the proceeding. This is because the primary rule of admissibility (in s 56) is that, except as otherwise provided by the Act, evidence that is relevant in a proceeding is admissible in the proceeding, and evidence that is not relevant in a proceeding is not admissible in the proceeding.

7. For what purposes is the witness statement relevant?

Correct

The evidence is relevant for both a hearsay purpose and a credibility purpose. The police statement, if accepted, could affect the probability that Paris had access to a gun which may have been used in the armed robbery (the hearsay purpose). In addition, the statement, if accepted, could show that Gitanjali has previously given an account inconsistent with her evidence in court, which could affect the jury’s assessment of her credibility (the credibility purpose).

Incorrect

The evidence is relevant for two purposes. First, it is relevant for a hearsay purpose. That is, the statement is relevant to prove the truth of the facts asserted in the statement, and particularly the fact that Paris had access to a gun which may have been used in the armed robbery. Second, it is relevant for a credibility purpose, as the statement is relevant to show that Gitanjali has previously given an account inconsistent with her evidence in court, which could affect the jury’s assessment of her credibility.

Incorrect

The evidence is relevant for two purposes. While it is relevant for its hearsay purpose, that is, to prove that Paris had a gun prior to the armed robbery, it is also relevant for a credibility purpose. That is, the statement is relevant to show that Gitanjali has previously given an account inconsistent with her evidence in court, which could affect the jury’s assessment of her credibility.

Incorrect

The evidence is only relevant for two purposes: a hearsay purpose and a credibility purpose. The evidence is not visual identification evidence. Visual identification evidence is evidence of an assertion that the defendant was or resembles a person connected with the offence charged (the Dictionary contains the complete definition) and Gitanjali’s police statement does not assert that the defendant was or resembles a person connected with the offence charged.

8. Disregarding any exceptions to the hearsay rule, would s 59 apply to Gitanjali’s prior statement?

Correct

The statement may be used to prove the existence of a fact that Gitanjali intended to assert when making the statement, namely, that Paris came into the service station one day and showed her a gun.

Incorrect

Although the statement contains previous representations which may be used to prove existence of facts asserted in the statement, the answer is incomplete. Section 59 only applies when a witness intended to assert a particular fact. Therefore the complete answer is that s 59 would apply because the statement contains previous representations made by Gitanjali which may be used to prove the existence of facts that Gitanjali intended to assert in the statement.

Incorrect

Gitanjali expressly asserts that ‘Paris came into the service station one day and showed me a gun’. This is a fact which she intended to assert, and it is relevant in the proceedings to establish that Paris had possession of a gun prior to the armed robbery.

Incorrect

Section 60 is an exception to the hearsay rule and so must be disregarded at this stage. Section 59 applies to evidence of a previous representation in relation to its hearsay purpose, that is, to prove the existence of a fact that it can reasonably be supposed that the maker of the previous representation intended to assert by the representation.

9. Is Gitanjali’s police statement credibility evidence under s 101A?

Correct

The statement is credibility evidence within s 101A(b). It is relevant because it affects the assessment of the credibility of Gitanjali and is relevant for its hearsay purpose for which it is not admissible and cannot be used.

Incorrect

Evidence that Gitanjali has previously made a statement inconsistent with her evidence in court is capable of suggesting that her current evidence is not credible.

Incorrect

This answer is incomplete. Merely because the statement can affect the assessment of the credibility of Gitanjali does not render the evidence credibility evidence for the purpose of the Act. Credibility evidence is defined in s 101A as evidence that is only relevant to credibility, or is relevant for credibility as well as another purpose for which the evidence is not admissible or cannot be used.

Incorrect

The statement is relevant for more than one purpose and so is not credibility evidence under s 101A(a). However, it is credibility evidence under s 101A(b), as it is relevant because it affects the assessment of the witness’ credibility and is relevant for a hearsay purpose for which it is not admissible.

10. Is Gitanjali’s statement admissible for its credibility purpose?

Correct

Under s 106 the credibility rule does not apply to evidence ‘adduced otherwise than from the witness’ if, in cross-examination, the substance of the evidence was put to the witness and the witness denied or did not admit or agree to the substance of the evidence. Because the evidence tends to prove the witness made a prior inconsistent statement, leave is not necessary (s 106(2)(c)).

Incorrect

Though s 102 is the starting point, an exception to s 102 applies in this instance.

Incorrect

Section 103 only applies to evidence adduced in cross-examination of a witness. This evidence is sought to be tendered through the police officer in examination in chief.

Incorrect

The evidence is neither adduced in re-examination of a witness (s 108(1)) nor evidence of a prior consistent statement (s 108(3)).

11. Does it matter that for s 106 to apply, cross-examination must take place (s 106(1)(a)), and Gitanjali was called as a prosecution witness?

Correct

Section 38(2) states that questioning under s 38 is taken to be cross-examination for the purpose of the Act.

Incorrect

Questioning under s 38 is taken to be cross-examination for the purpose of the Act (s 38(2)), and so s 106(1)(a) may be satisfied.

Incorrect

Where it applies, s 106(1)(b) is an additional precondition to adducing credibility evidence. It does not replace the requirement in s 106(1)(a) that the substance of the evidence must be put to the witness in cross-examination.

Incorrect

Though it is true that under s 106(2)(c) leave would not be required, this only removes the requirement of leave imposed by s 106(1)(b). It does not replace the general requirement that the substance of the evidence must be put to the witness in cross-examination.

12. Does a hearsay exception apply so that Gitanjali’s statement may be used to prove the truth of its contents?

Correct

Once Gitanjali’s statement is admitted because it is relevant for a purpose other than proof of an asserted fact, the hearsay rule does not apply to the previous representations contained in the statement.

Incorrect

Gitanjali is not ‘unavailable’. A witness is not unavailable merely because she enters the witness box and answers questions in an allegedly untruthful manner by claiming lack of recollection or loss of memory: Ken Tan v R [2008] NSWCCA 332 at [57].

Incorrect

Section 66(2) does not apply because the statement was made for the purpose of indicating the evidence Gitanjali would be able to give in an Australian proceeding: s 66(3).

Incorrect

While the statement might be a business record due to the expansive definition of ‘business’ in the Dictionary, s 69 does not apply if the statement was made in connection with an investigation relating or leading to a criminal proceeding (s 69(3)).