Cross-examination of witnesses

5.37 The provisions of the uniform Evidence Acts that concern the rules for cross-examination[53] substantially mirror practices under the common law. 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.[54]

5.38 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. Section 42 establishes that leading questions may be asked in cross-examination. However, the court may disallow the question or direct the witness not to answer it, taking into account a number of factors. Section 42(2) states:

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:

(a) evidence that has been given by the witness in examination in chief is unfavourable to the party who called the witness; and

(b) the witness has an interest consistent with an interest of the cross-examiner; and

(c) the witness is sympathetic to the party conducting the cross-examination, either generally or about a particular matter; and

(d) the witness’s age, or any mental, intellectual or physical disability to which the witness is subject, may affect the witness’s answers.

5.39 Cross-examination on documents is regulated by ss 43 and 44. Cross-examination may be undertaken on a witness’ prior inconsistent statement without the need to provide full particulars or show the document in question.[55] Under s 44(2) and (3), limited cross-examination may be undertaken on the previous representations of another person. These sections are discussed further below.

Unfavourable witnesses

5.40 Section 38 of the uniform Evidence Acts made a significant change to the law of evidence. It states:

(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.

5.41 Under the common law, a party cannot cross-examine its own witness unless the witness is declared hostile. To be declared hostile, the court must find that the witness is deliberately withholding or lying about material evidence.[56]

5.42 In the previous Evidence inquiry, the hostile witness rule was criticised as irrational and anachronistic.[57] 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.[58]

5.43 Justice Tim Smith and Paul Holdenson QC have discussed the limitations of the common law in dealing with unhelpful witnesses.

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. Other situations arise. 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. 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.[59]

5.44 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,[60] 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.

5.45 The effect of having a witness declared unfavourable under s 38 is significant. With the leave of the court, an unfavourable witness may be questioned as if being cross-examined. That is, they can be asked leading questions, given proof of prior inconsistent statements, and asked questions as to credit.[61] However, s 38 is limited to cross-examination on the areas of testimony in which the witness is unfavourable, and does not create a general right to cross-examine.[62] Leave can be granted to cross-examine a witness on only part of his or her evidence, even though the rest of the witness’ evidence is favourable to the party that called him or her.[63] Section 38 is a discretionary section and the factors listed in s 192 must be considered in granting leave.[64]

5.46 The term ‘unfavourable’ has been interpreted simply as meaning ‘not favourable’, rather than the more difficult test of hostile or adverse.[65] In R v Lozano, it was accepted that s 38(1)(a) allows a witness to be declared unfavourable and cross-examined even when he or she genuinely cannot remember the events in question.[66]

5.47 There are numerous examples of the use of s 38 to admit evidence which would not be admissible under the common law. In Randall v The Queen, the complainant alleged that she was sexually assaulted by the accused in a room with 10–12 men present.[67] The Crown’s case was that the complainant had been given drugs by the accused and was, in effect, comatose at the time of the offence and incapable of consenting to sexual intercourse. A number of the men present gave evidence consistent with the view that the complainant appeared comatose. Two witnesses gave evidence that suggested the complainant was alert and consented. As witnesses to the alleged offence, the Crown was obliged to call them. Without the ability to have the witnesses declared unfavourable under s 38, the Crown could not have cross-examined them, nor would they have been cross-examined by the defence, as their evidence was favourable to the accused.[68]

5.48 In Saunders v The Queen, a friend of the accused gave evidence at the trial that was substantially different to the story he gave police when they arrived on the scene of the alleged assault.[69] The friend was called by the prosecution and, when he gave the inconsistent version, an application was made to have him declared an unfavourable witness under s 38. The application was successful and his earlier statement was brought into evidence. The view was put to the Inquiry that, as this statement to police was contemporaneous, it held strong probative value and should be heard by the jury.[70]

5.49 In R v Milat, Hunt CJ at CL considered that s 38 was important in covering the situation where the Crown is obliged to call a witness at the request of the accused, notwithstanding that the evidence given is likely to be unfavourable.[71] In such a case, it was found to be unjust for the Crown not to be given leave to cross-examine such a witness. Hunt CJ at CL stated in Milat that the effect of s 38 would probably prove to be one of the most worthwhile achievements of the uniform Evidence Acts.[72]

5.50 A prosecutor is under a duty to call any witnesses whose evidence may assist in determining the truth of the matter at issue. Dawson J said in Whitehall v The Queen:

All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye-witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye witness, whose evidence he considers to be unreliable, untrustworthy or otherwise incapable of belief.[73]

5.51 As noted above, s 38 is not limited to the situation where a witness unexpectedly gives hostile evidence, or unexpectedly appears not to be making a genuine attempt to give evidence. Therefore the section allows a party (in practice, most likely to be the prosecution) to call a witness they know to be unfavourable, for the sole purpose of having them available for cross-examination and getting an inconsistent out-of-court statement admitted into evidence under s 38(1)(c). The prior inconsistent statement is only admissible if it satisfies the requirements of Part 3 of the Acts.[74]

5.52 The use of s 38 in this way was considered by the High Court in Adam v The Queen.[75] In Adam, the trial judge permitted the Crown to cross-examine a witness as an unfavourable witness under s 38(1)(c), in relation to prior inconsistent statements made to police by the witness. The use of the statements had two purposes. First, it related to the credibility of the witness. Second, and importantly, once admitted for that purpose, the statements were admissible also for their hearsay purpose under s 60,[76] and, used in that way, they incriminated the accused. The majority considered that such a practice was proper under the Evidence Act 1995 (NSW) and had not resulted in unfairness to the defence in that case as the defence was free to cross-examine the witness on the prior inconsistent statement.[77]

5.53 The discretions under ss 135, 136 and 137 may be employed to prevent questioning under s 38. In R v GAC, it was argued that leave should not be given to cross-examine the witness on the ground that it was unfairly prejudicial to the accused to allow the witness’ prior statement into evidence, because his professed lack of memory meant that the defence could not cross-examine him on his earlier version of events given to the police. However, after finding that the witness’ memory loss was founded on a desire to help the accused, the New South Wales Court of Criminal Appeal stated:

[H]aving regard to the circumstances of the interview, including its proximity to the critical events, what C said to the police was likely to be a good deal more reliable than what he said in court. For my part, I would not regard the probative value of the interview as being outweighed by unfair prejudice to the appellant; nor do I consider that there was substantial unfairness of the kind relied upon by the appellant.[78]

Submissions and consultations

5.54 Two views of s 38 emerged in submissions and consultations. One is that the test to have a witness declared ‘unfavourable’ is too lenient and unfairly allows a party to call a witness solely to allow a prior inconsistent statement into evidence that would not be admitted any other way.[79] The other view is that expressed in Adam—the practice ensures all relevant evidence gets in, and the availability of that witness for questioning by the other party overcomes any unfairness.[80]

5.55 In DP 69, the Commissions concluded that the guiding principle under which s 38 was first recommended—improvement in fact-finding by enabling a party who calls a witness to challenge unfavourable evidence by cross-examining that witness—has been upheld by the operation of the section over the last 10 years. While there has been some criticism of the section, there has also been strong judicial support, as in the Adam and Milat judgments noted above. On that basis, it was proposed that no change be made to s 38.[81]

5.56 The CDPP supports the current operation of s 38, believing it operates well in practice. However, the CDPP argues that circumstances in which the section is available should be expanded. In its view, there should be greater certainty as to when leave should be granted to cross-examine the witness. The CDPP favours a structured discretion where the starting point is that leave shall be granted unless there are overriding considerations to the contrary. The CDPP also suggests that a witness should be able to be cross-examined by the party calling the witness where: unfavourable evidence is given; there is not a genuine attempt to give evidence; or, the witness has made a prior inconsistent statement. The restriction that the cross-examination be confined to the area specified in paragraphs 38(1)(a), (b) or (c) should be removed so the witness can be cross-examined generally about all aspects of their evidence.[82]

5.57 In contrast, the NSW PDO maintains the view that the worst aspect of the uniform Evidence Acts is the approach to the evidence of an unwilling witness.[83]

By a number of different routes, the Crown is able to tender the statement of the witness as evidence of the fact, even if the witness is not prepared to adopt the statement as the truth. This leaves the accused’s lawyer with the impossible task of cross-examining a witness whose starting position is that the earlier statement was not the truth.[84]

5.58 One of these routes is where the witness is unwilling to testify, and is discussed in Chapter 7. The second method nominated by the NSW PDO as problematic is the situation in Adam, where the Crown can make an application to cross-examine a witness on their prior inconsistent statement under s 38. If this application is successful, the operation of s 60 will admit the witness’ prior statement as evidence of the asserted fact.[85] The NSW PDO believes that on this basis, s 38(1)(a) of the uniform Evidence Acts should be repealed. This would limit applications to cross-examine a witness to those witnesses who do not appear to be making a genuine attempt to give evidence, or who have made a prior inconsistent statement.[86]

5.59 The Criminal Bar Association of Victoria is also concerned about the connection between ss 38 and 60.

Under s 60 hearsay statements may be admitted for another purpose but, once admitted into evidence may be used as to the truth of their contents. The danger is particularly highlighted by the VLRC proposal that s 60 should be amended to make it clear that the provision applies to both firsthand and remote hearsay.[87]

5.60 The Criminal Bar Association also argues that when cross-examination is allowed on a prior inconsistent statement, leave must be limited to cross-examination on the facts recorded in the earlier statement.[88]

5.61 VLA maintains that the effect of s 38 has been that witnesses whose evidence may only be considered ‘neutral’ have been declared unfavourable and been allowed to be cross-examined on the basis that some of their testimony contradicts an earlier statement.[89] VLA maintains that

[t]he prosecution will routinely lead the records of interview of persons involved in, or suspected of being involved in, the offending. It is often the case that a person who is unwilling to give evidence helpful to the prosecution, is called as a witness solely for the purpose of proving the contents of the interview. The NSW courts have held this to be quite proper.[90]

5.62 VLA submits that this practice leaves in the mind of the jury the implication that the witness has been interfered with by the accused, when it may simply be a matter of innocent memory loss or a changed story. On that basis it proposes that leave for the prosecution to cross-examine its own witness be given only where the court is satisfied that there can be no prejudicial implication drawn by the jury that the accused has interfered with a witness (where there is no evidence to make out the allegation).[91]

5.63 The Litigation Law and Practice Committee of the Law Society of New South Wales agrees with the Commissions’ conclusion in DP 69 that s 38 should remain unchanged.[92]

The Commissions’ view

5.64 In ALRC 26, it was considered whether the operation of s 38 should be limited by a requirement that the unfavourable evidence be unexpected. The ALRC rejected this approach on the basis that it would enable criminals to defeat prosecutions by suborning key witnesses. The ALRC also noted the argument that the prosecution receives a tactical advantage because, where a prior statement is used, it will go into evidence. ALRC 26 considered that the prosecution in that case has already suffered the tactical disadvantage of having to call a witness to prove its case and that witness has supported the defence.[93] Furthermore, if the operation of s 38 means that evidence could be admitted which is unfairly prejudicial within the meaning of ss 135, 136 and 137, that evidence can be excluded or its use limited by the exercise of those discretions.

5.65 Smith and Holdenson have noted:

Much depends on the view that is taken about the importance for the credibility of trials, be they civil or criminal, that there be a genuine attempt to establish the facts on which the final decision will be based. The ALRC view was that that attempt was of fundamental importance.[94]

5.66 The Commissions note the suggestion of the CDPP that s 38 be amended to include a structured discretion which provides that leave shall be granted unless there are overriding considerations to the contrary. However, no other bodies have indicated to the Commissions that there have been cases where the discretion to cross-examine has not been exercised properly. A suggestion that leave should always be granted, unless there are overriding considerations to the contrary, would appear to favour the prosecution unnecessarily in these matters. The three bases on which cross-examination may be permitted in paragraphs 38(1)(a), (b) and (c) are clear, and the Commissions are not convinced greater certainty is required. In ALRC 26, it was foreshadowed that there would be cases where the unfavourable evidence is not of major importance and the attack on credibility of little weight. In that case, the judge should retain the ability to not allow the cross-examination.[95]

5.67 In relation to the suggestion that cross-examination should be permitted across all of the witness’ testimony, and not only those matters on which the witness is unfavourable, the Commissions are unconvinced that any benefits to the trial process would be achieved by such an amendment. The ALRC limited the original proposal to the unfavourable evidence on the basis that the advantages of allowing a party to cross-examine their own witness more generally (which is likely to be only more general attacks as to credit) was of debatable advantage and risked wasting time and cost.[96] It is noted that in R v White, Smart AJ suggested that there may be cases where, in practical terms, because of the width of the material on which the witness may be questioned, a more general form of leave to examine could be granted without departing from the intention of s 38.[97]

5.68 Whilst the concerns of the VLA are noted, the Commissions remain supportive of the reasoning behind the enactment of s 38 and its practical application. Should a judge feel that the jury might draw an incorrect inference from the cross-examination, a judicial comment should be sufficient to overcome this problem. The Commissions do not agree with the views of the NSW PDO and others regarding the unfairness caused by the interaction between ss 38 and 60. These criticisms do not address the underlying policy on which the section is based. The Commissions are of the view that prior inconsistent statements should be allowed into evidence through s 38, as they tend to have strong probative value. Section 38 has made a significant change in allowing highly relevant and probative evidence to be placed before the court. The granting of leave to cross-examine under s 38 is subject to the matters prescribed by s 192(2), which includes the extent to which to do so would be unfair to a party or to a witness, and also to the discretions to exclude or limit evidence under ss 135 and 137.[98]

5.69 The guiding principle under which s 38 was first recommended—improvement in fact-finding by enabling a party who calls a witness to challenge unfavourable evidence by cross-examining that witness—has been upheld by the operation of the section over the last 10 years. While there has been some criticism of the section, there has also been strong judicial support, as in the Adam and Milat judgments noted above. On this basis, the Commissions recommend no change to the section.

Constraints in the cross-examination of vulnerable witnesses

5.70 Cross-examination is a feature of the adversarial process and designed to let a party confront and undermine the other party’s case by exposing deficiencies in a witness’ testimony. Under both the common law and statute, limitations have been placed on inappropriate and offensive questioning under cross-examination. However, it has been argued that the effect of these provisions in practice has not provided a sufficient degree of protection for vulnerable witnesses.[99]

5.71 Section 41 of the uniform Evidence Acts grants the court the power to disallow improper questions asked in cross-examination. It provides:

(1) The court may disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the question is:

(a) misleading; or

(b) unduly annoying, harassing, intimidating, offensive, oppressive or repetitive.

(2) Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account:

(a) any relevant condition or characteristic of the witness, including age, personality and education; and

(b) any mental, intellectual or physical disability to which the witness is or appears to be subject.

5.72 The ALRC intended this section to bring together and clarify common law and legislative provisions which set limits on cross-examination.

The proposals provide for the judge to disallow the question, or to inform the witness that he [or she] need not answer but may if he [or she] wants to do so. In this way the judge can prevent a slanging match developing, or let the witness answer the question nonetheless.[100]

5.73 As will be outlined below, the issue of improper questions and inappropriate cross-examination has been considered by a number of law reform bodies, with various attempts made in the state jurisdictions to protect vulnerable witnesses. In particular, a significant change has recently been made in New South Wales, with a duty imposed on a judge to disallow improper questions to any witness in a criminal matter.

Child witnesses

5.74 Child witnesses are particularly vulnerable in the adversarial trial system.[101] In their inquiry into children and the legal process, the ALRC and HREOC heard significant and distressing evidence that child witnesses, particularly in child sexual assault cases, are often berated and harassed to the point of breakdown during cross-examination.[102] Concerns were raised about the role of lawyers, and also about the role of judges and magistrates as the ‘referees’ of the trial. In ALRC 84, the ALRC and HREOC made recommendations for the development of guidelines and training programs to assist judges, magistrates and lawyers in dealing with child witnesses.[103]

5.75 These findings are consistent with a recent evaluation of the specialist jurisdiction for child sexual assault matters that was established as a pilot at the Sydney West District Court Registry in 2003. The aim of establishing a specialist jurisdiction was to address the difficulties in prosecuting child sexual assault cases by having, amongst other special measures to make child witnesses more comfortable in a court environment, specialist training in child development and child sexual assault issues for judicial officers and prosecutors.[104] The report’s findings indicated that, even in a specialist jurisdiction, there are still problems with judicial control of cross-examination.

Court observation and the interviews with children, parents and court professionals indicated that children are still subjected to overly long, complex questioning which is unlikely to produce the most reliable evidence. Judicial intervention to clarify the questions or control accusatory questioning, varied across trials but appears to be unrelated to either the age or linguistic style of child complainants.[105]

5.76 Part IAD of the Crimes Act 1914 (Cth) includes a number of provisions that provide for the protection of child witnesses and child complainants in certain sexual offence cases (including in relation to child sex tourism and sexual servitude offences).[106] In particular, there is a specific provision for the court to disallow a question put to the child witness in cross-examination if the question is inappropriate or unnecessarily aggressive, having regard to the witness’ personal characteristics, including age, culture, mental capacity and gender.[107]

5.77 In its report on sexual offences, the VLRC concluded that general provisions regulating cross-examination, such as s 41 of the uniform Evidence Acts, are insufficient to ensure that child witnesses are protected against inappropriate questions.[108] The VLRC supported a recommendation of the Queensland Law Reform Commission that included, as well as the considerations in s 41, consideration of the content, manner and language of questioning, and the culture and level of understanding of the child.[109] The VLRC recommended that there be a duty on the court to ensure that, in the case of questions asked of children under 18 years of age:

  • Neither the content of a question, nor the manner in which a question is asked is misleading or confusing, phrased in inappropriate language or unduly annoying, harassing, intimidating, offensive, oppressive or repetitive; and

  • The questions are not structured or sequenced in a way that is intimidating, harassing, confusing, annoying or misleading.

  • In deciding whether to disallow a question, the court is to take into account any relevant condition or characteristic of the witness, including age, culture, personality, education and level of understanding and any mental, intellectual or physical disability of the witness.[110]

Complainants in sexual assault matters

5.78 Complainants in sexual assault matters are in a particularly vulnerable and distressing position in a courtroom. The New South Wales Law Reform Commission (NSWLRC) recognised that there are at least three factors that make sexual offence trials particularly distressing for complainants: the nature of the crime; the role of consent with its focus on the credibility of the complainant; and the likelihood that the complainant and the accused knew each other before the alleged assault.[111] The NSWLRC found that the treatment of such matters in cross-examination is a particular concern, with complainants likely to be cross-examined for a longer period of time than victims of other types of assaults. Complainants have appealed for greater control of cross-examination to make the process less stressful.[112]

5.79 In all Australian states and territories, recognition of the nature of sexual offences has led to the enactment of specific evidentiary limitations, such as making evidence of a complainant’s sexual experience inadmissible.[113] These specific provisions are discussed further in Chapter 20. Use of s 41 is another way in which improper cross-examination may be limited in sexual assault proceedings. In R v TA Spigelman CJ found that, in sexual assault matters, it is appropriate for the court to consider the effect of cross-examination and the trial experience upon a complainant when deciding whether s 41 should be invoked.

The difficulties encountered by complainants in sexual assault cases in the criminal justice system has been a focus of concern for several decades. Judges play an important role in protecting complainants from unnecessary, inappropriate and irrelevant questioning by or on behalf of an accused. That role is perfectly consistent with the requirements of a fair trial, which requirements do not involve treating the criminal justice system as if it were a forensic game in which every accused is entitled to some kind of sporting chance.[114]

5.80 Justice Wood, in a paper entitled, Sexual Assault and the Admission of Evidence, expressed the view that:

Perhaps regrettably, this is a power which is seldom invoked, possibly out of fear that the defence will use it to its advantage, by attracting counter sympathy from the jury that it is not being given a ‘fair run’. In truth, such fear is misguided because an aggressive and unfair cross-examination can be suitably dealt with by the Judge in the absence of the jury.[115]

5.81 In November 2004, the New South Wales Adult Sexual Assault Interagency Committee released its advice to the New South Wales Government on evidentiary and procedural issues regarding criminal law sexual offences.[116] That report also found that provisions in place to address improper questioning are under utilised.[117] The Committee’s report recommended three reforms to s 41:

  • introduction of practice directions to assist judges in utilising section 41 of the Evidence Act 1995 (NSW) to regulate the conduct of cross-examination of the complainant;

  • amendment of section 41 of the Evidence Act 1995 (NSW) to place greater restrictions on tone and manner of questions that may be put to the complainant in cross-examination (in addition to the content of questions);

  • amendment of section 41 to model section 21 of the Evidence Act 1977 (Qld) to further allow the Court to consider whether a question is improper having regard to the level of understanding of the witness, cultural background or relationship to any party to the proceeding.[118]

Other vulnerable witnesses

5.82 As well as child witnesses and sexual assault complainants, there may be other witnesses who are vulnerable in cross-examination, for example, because of their relationship to the other party,[119] disability, or lack of education. In most Australian states and territories, legislation allows for alternative arrangements for hearing the testimony of vulnerable witnesses. These arrangements include permitting a witness to testify with a support person present, through closed circuit television or in a closed court.[120]

5.83 The Intellectual Disability Rights Service submits that cross-examination using misleading or suggestive questioning techniques can adversely affect the ability of a person with an intellectual disability to recall an event accurately, and repetition of questions can cause a person with an intellectual disability to change his or her answers. This may result in the witness giving the questioner a response which the questioning process has led the witness to perceive to be the ‘correct’ answer, even though the witness may effectively be agreeing to something which is not true. In the Service’s experience, some judges have demonstrated an unwillingness to limit inappropriate or offensive cross-examination of witnesses with an intellectual disability.[121] This view is consistent with a study undertaken in 2003 which found that judges are no more likely to intervene for witnesses with a learning disability than for witnesses in the general population.[122]

5.84 Kirby J has suggested that any witness may become vulnerable in the face of strident cross-examination on credibility. In Whisprun Pty Ltd v Dixon, his Honour argued that the law has advanced from the view of a trial as a tournament between parties, where a witness’ credibility is challenged, even on peripheral or irrelevant matters.[123]

Most judges today understand that the evaluation of evidence involves a more complex function, requiring a more sophisticated analysis … Litigants are sometimes people of limited knowledge and perception. Occasionally, they mistakenly attach excessive importance to considerations of no real importance. In consequence, they may sometimes tell lies, or withhold the entire truth, out of a feeling that they need to do so or that the matter is unimportant or of no interest to the court. This is not to condone such conduct. It is simply to insist that, where it is found to have occurred, it should not deflect the decision maker from the substance of a function assigned to a court by law.[124]

Amendments to the Criminal Procedure Act (NSW)

5.85 In response to community concerns regarding cross-examination of witnesses, the Criminal Procedure Act 1986 (NSW) has been amended to impose a duty on a court hearing any criminal proceeding to disallow improper questions that are put to witnesses in cross-examination.[125] Whilst the amendments impose the duty for any witness, they form part of the New South Wales Government’s ongoing program of legislative reform in sexual assault prosecutions.[126] New legislation will also shortly be introduced in Victoria to deal with this issue.[127]

5.86 As a result of the amendments, s 41 of the Evidence Act 1995 (NSW) no longer applies to the cross-examination of witnesses in criminal proceedings, but continues to apply in civil proceedings. The new s 275A(7) of the Criminal Procedure Act 1986 (NSW) states that s 41 of the Evidence Act 1995 (NSW) does not apply to the criminal proceedings to which this section applies.[128]

5.87 Under s 275A, a court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the court is of the opinion that the question:

(a) is misleading or confusing, or

(b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, or

(c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate, or

(d) has no basis other than a sexist, racial, cultural or ethnic stereotype.

5.88 The factors which may be taken into account in determining whether a question should be disallowed are extended to include the ethnic and cultural background of the witness, the language background and skills of the witness, and the level of maturity and understanding of the witness.

5.89 However, a question is not disallowable under the section merely because:

(a) the question challenges the truthfulness of the witness or the consistency or accuracy of any statements made by the witness, or

(b) the question requires the witness to discuss a subject that could be considered to be distasteful or private.[129]

5.90 The duty to disallow the question falls on the court whether or not an objection is raised by the other party. A failure by the court to disallow a question under this section, or to inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question.[130] The New South Wales legislation differs from s 41 as it imposes a duty on the court to disallow an improper question rather than a discretion.

Submissions and consultations

5.91 In DP 69, the Commissions concluded that the use of s 41 to control improper questions during cross-examination is patchy and inconsistent. A significant number of consultations and submissions indicated that the section is seldom invoked by judges, and its use often depends on the particular judicial officer and prosecutor.[131] The Commissions supported the view of the VLRC and others that the approach in s 41 is too limited to provide sufficient protection to vulnerable witnesses in some types of matters.[132] To respond to these concerns, the Commissions proposed expanding the types of questions that may be disallowed under s 41 to include those categories set out under the amendments to the Criminal Procedure Act in New South Wales.

5.92 In DP 69, the Commissions did not propose a general duty to disallow improper questions, but argued that a judge should have such a duty in the case of vulnerable witnesses, defined as child witnesses or witnesses with a physical or intellectual disability.[133] The Commissions also proposed that education programs be implemented by the judicial colleges, the law societies and the bar associations which draw attention to s 41 and the limits on improper questioning.[134]

5.93 A majority of submissions and consultations were supportive of the proposal to expand the categories of improper questions under s 41 to include reference to tone, manner and stereotyping.[135]

5.94 However, the proposal to impose a duty to disallow such questions in the case of vulnerable witnesses has raised concerns. These concerns relate to how the imposition of a duty could operate in practice, and how a vulnerable witness should be defined for the purpose of the section.

5.95 VLA argues that the proposal is not appropriate because the prosecution can (and should) object to improper questioning of its witnesses when necessary and the jury may be prejudiced if they perceive that the judge is ‘protecting’ the complainant or witness from cross-examination.[136] The Law Society of New South Wales states that, in its view, it is not appropriate to place a positive duty on judicial officers to disallow certain questions during a trial.[137]

5.96 The Australian Government Attorney-General’s Department also submits that the imposition of a duty might not, in some cases, serve the need to admit all relevant evidence. In its view, whether a question is annoying or harassing or offensive is one involving a question of judgment, and it could be argued that retaining a discretion allows the question to be put, for example, when it is directed towards a pivotal issue in an important proceeding.[138]

5.97 One Federal Court judge feels that the duty to be imposed under the proposal is too vague. Having the definition of a ‘vulnerable person’ open to the judge’s discretion means that there will be little distinction in practice between the duty and leaving the issue to a discretion.[139] This view is consistent with that of other judges, with some commenting that it would be difficult for a judge to make a determination of vulnerability. This could lead to undue delay as a witness’ vulnerability is debated, or to appeals on whether a judge made the correct determination.[140]

5.98 In contrast, Women’s Legal Services Victoria considers that ‘given the persistent reluctance on the part of courts to take a proactive approach to address these issues’ the imposition of a duty on judges is an important reform.[141] The Intellectual Disability Rights Service submits that imposing a duty on judges to disallow improper questions put to a witness with an intellectual disability in cross-examination gives the witness the same opportunity to give evidence in court as a witness without an intellectual disability.[142]

5.99 The Criminal Law Review Division of the New South Wales Attorney General’s Department sees problems with the proposal on the basis that it is too limiting in its definition of vulnerability and

may create real problems in the court environment with lengthy contests as to whether a witness suffers from an intellectual or mental disability such as to invoke the ‘duty’ to disallow the question. This should not be the focus of the provision. Rather, a judicial officer should be guided by whether a question is misleading or confusing for the witness and should intervene accordingly, regardless of whether the person has a particular vulnerability.[143]

5.100 The Division’s view is that a judicial officer should have a duty to ensure that questions are not intimidating, offensive, humiliating or have no basis other than a sexual, racial or cultural stereotype and this duty should apply equally to all witnesses. It argues that the uniform Evidence Acts should be amended to adopt the provisions of s 275A of the Criminal Procedure Act (NSW).[144]

It is submitted that s 275A does not compromise judicial impartiality, but instead demonstrates a move away from the tacit acceptance of improper behaviours that cut across fundamental fair-trial principles. A judge should not allow tactics which deliberately seek to intimidate, offend, humiliate and break witnesses from being able to give evidence at all.[145]

5.101 The NSW DPP agrees that the uniform Evidence Acts should follow the path of a mandatory duty for all witnesses. It argues that the proposal for a duty only in relation to some types of witnesses does not take into account the fact that improper questioning can occur in relation to any witness and that counsel cannot be relied upon to object to it, often for tactical reasons.[146]

5.102 The NSW Disability Discrimination Legal Centre agrees with this view, arguing that determining which clients should be considered ‘vulnerable’ is extremely problematic. A person with a mental illness may not present as vulnerable, but could have his or her symptoms triggered by aggressive cross-examination. In its view, considering the lack of clear evidence that improper questioning generates evidence of better quality—the risk of traumatising a witness, and thereby potentially distorting or manipulating the evidence—does not justify the use of such questioning. The Centre argues that by creating a higher duty for all witnesses, judges would be forced to pay attention to the nature of the questioning and the effect of the examination on a witness.[147]

5.103 Some submissions and consultations argue that the definition of a vulnerable witness should include all victims of sexual assault.[148] Rosemount Youth and Family Services and Dympna House argue that such a rule would encourage more victims of sexual assault to pursue claims through the courts.[149]

5.104 The NSW DPP also submits that the proposal’s definition of vulnerability is too narrow. In its view, under Proposal 5–3:

Vulnerability due [to] any other factor, such as ill health, education, learning or concentration difficulties, ethnic and cultural background, language background and skills, level of maturity and understanding or the stress of being required to publicly recount traumatic personal events involving intimate details in the presence of a group of strangers and the accused, would not be taken into account in the court’s assessment.[150]

5.105 A number of submissions and consultations argue that judicial education is a better way to achieve changes in judicial culture and ensure that vulnerable witness are protected under the powers already available under s 41 and similar legislation.[151] The proposal to increase judicial and practitioner education to draw attention to the importance of s 41 is supported.[152]

The Commissions’ view

5.106 The Commissions continue to support the more comprehensive and detailed list of inappropriate questions introduced by the Criminal Procedure Further Amendment (Evidence) Act 2005 (NSW). Whilst it is true that these types of questions could (and should) already be disallowable under s 41, explicit reference to these types of questions may serve to bring them to judicial attention and provide greater guidance as to when the power to limit cross-examination should be exercised.

5.107 The Commissions believe that the protections offered to witnesses in criminal matters should be no more comprehensive than in civil matters. As noted in DP 69, a witness in a negligence or a civil assault matter may be as vulnerable to attack in cross-examination as a victim of a crime. Any amendment to s 41 should apply to both civil and criminal matters.

5.108 However, the Commissions do not agree on how this protection should be provided. For the reasons discussed below, the ALRC and the NSWLRC are now of the view that s 41 of the uniform Evidence Acts should be amended to adopt the terms of s 275A of the Criminal Procedure Act 1986 (NSW). They are also of the view that this section should apply both to civil and criminal proceedings. However, the VLRC continues to support the proposals put forward in DP 69,[153] with some modifications.

The views of the ALRC and NSWLRC

5.109 The ALRC and the NSWLRC note the concerns raised in submissions that the proposed definition of a vulnerable witness in DP 69 was too narrow. The ALRC and the NSWLRC agree with the view of the NSW DPP that vulnerability may arise in a number of circumstances beyond age and a mental or physical disability. It is also noted that simply expanding the categories of ‘vulnerability’ to include other groups, such as sexual assault complainants, may be insufficient. A witness may be vulnerable not because of any inherent attribute of himself or herself, but because of the circumstances of the particular offence or a relationship to other parties to the proceedings. Conversely, a witness may not be vulnerable simply because he or she is the victim of a certain type of offence. It would be of little benefit to the trial process to have drawn out argument as to whether a witness suffers from a sufficient level of intellectual disability to be considered vulnerable.

5.110 The ALRC and the NSWLRC have closely considered the submission of the Criminal Law Review Division of the New South Wales Attorney General’s Department which argues that the duty should have general application. The ALRC and NSWLRC agree that there is an inherent difficulty in the original proposal whereby certain types of questions are defined as improper, but may, nevertheless, be asked of some witnesses in some circumstances. The ALRC and the NSWLRC hold the view that there are no circumstances in which misleading, harassing, offensive or confusing questions are appropriate for any witness.

5.111 The ALRC and the NSWLRC have also been persuaded by recent findings, noted above, that even in a specialist child sexual assault jurisdiction, there remain problems with judicial control of cross-examination. There clearly remains a wariness amongst judges of intervening in cross-examination. Judge Roy Ellis of the District Court of New South Wales has commented:

Traditionally trial judges have been very careful about interrupting or restricting cross-examination. It is likely that this reluctance stems from concern about jeopardising a fair trial for the accused and/or concern regarding the approach to be taken by the Court of Criminal Appeal … Anecdotally this seems to me to have caused trial judges to err on the side of caution, which means to err in favour of the accused and permit questionable cross-examination from time to time.[154]

5.112 The Criminal Law Review Division submits that the imposition of a duty to disallow questions under s 275A does not compromise judicial impartiality, but instead demonstrates a move away from ‘the tacit acceptance of improper behaviours that cut across fundamental fair trial principles’.[155] Chief Justice Spigelman has acknowledged the dynamic nature of the principle of a fair trial:

In particular, it enables the court to acknowledge fundamental changes in community expectations as to the requirements of a fair trial. What is regarded as fair, particularly in the context of a criminal trial, has always varied with changing social standards and circumstances.[156]

5.113 In the second reading speech for the Bill enacting s 275A, the New South Wales Attorney General stated that s 275A

sets a new standard for the cross-examination of witnesses in criminal proceedings, including by referring, for the first time, to the manner and tone in which the question is asked … This amendment places a positive duty on judges to act to prevent improper questions, thereby ensuring that witnesses are able to give their evidence free from intimidation and fear.[157]

5.114 The ALRC and the NSWLRC are persuaded that s 275A of the Criminal Procedure Act provides a comprehensive model for the protection of all witness from improper cross-examination. As well as imposing a duty to disallow improper questions for all witnesses, it sets out a more comprehensive and detailed list of questions that are inappropriate. Whilst it is true that these types of questions could (and should) already be disallowed under s 41, submissions and consultations indicate clearly that the section is currently under utilised. Explicit reference to these types of questions may serve to bring them to judicial attention and provide greater guidance as to how the discretion to limit cross-examination should be exercised.

5.115 Under the proposed section, a question is not disallowable merely because it challenges the truth of the witness’ statement or raises a distasteful or private topic. Therefore these provisions will allow a witness’ evidence to be tested. Under s 275A(6) of the Criminal Procedure Act 1986 (NSW), a failure of the court to exercise the duty will not affect the admissibility of any answer given in response. The ALRC and the NSWLRC note the view of the Criminal Law Review Division which submits that legislation does not open a new avenue of appeal points for accused persons.[158]

5.116 These provisions are designed to prevent cross-examination that is improper and will not unduly hamper the trial techniques of advocates. The Commissions endorse the view of the NSW Adult Sexual Assault Interagency Committee that ‘curbing the use of improper questions does not impede the cross-examination process, it simply respects the rights of the complainant witnesses and ensures the best evidence is received by the courts’.[159]

5.117 It is therefore recommended that the provisions under s 275A of the Criminal Procedure Act 1986 (NSW) be adopted under s 41 of the uniform Evidence Acts.

5.118 The Commissions believe that the protections offered to witnesses in criminal matters should be no more comprehensive than in civil matters. As noted in DP 69, witnesses in a negligence or a civil assault matter may be equally vulnerable to attack in cross-examination as a victim of a crime. Any amendment to s 41 to adopt the terms of s 275A of the Criminal Procedure Act should apply equally to civil and criminal matters.

Recommendation 5–2 The ALRC and NSWLRC recommend that section 41 of the uniform Evidence Acts should be amended to adopt the terms of s 275A of the Criminal Procedure Act 1986 (NSW). This section should apply both to civil and criminal proceedings.

The view of the VLRC

5.119 The VLRC differs from the other Commissions for several reasons. First, the VLRC believes that it is important to retain the discretion of the trial judge to disallow inappropriate questions, while at the same time introducing a mandatory requirement to protect witnesses who are particularly vulnerable. By imposing a duty in relation to the questioning of all witnesses, the approach proposed by the ALRC and the NSWLRC may have the unintended effect of watering down protection for vulnerable witnesses.

5.120 The imposition of a duty in relation to all witnesses may also compel a judge to interfere inappropriately in questioning when this is contrary to the legitimate interests of the party questioning the witness or the party whose witness is being questioned. While improper questioning can compromise the fact-finding process, so too can inappropriate interference by the trial judge.

5.121 The VLRC takes the view that the general provision should be designed to prevent cross-examination that is improper because it is unfair to the witness while not unduly hampering the trial techniques of advocates. To make this policy clearer, the VLRC proposes that s 41 define an improper question as one that is unfair to the witness because it is a question or questioning that falls within one of the categories set out above. This would allow the court the discretion to determine if the questions or line of questioning are warranted, and to maintain a balance between the protection of the witness and eliciting the truth in cross-examination.[160] Unfairness is a term that is used elsewhere in the uniform Evidence Acts, and its meaning is considered in Chapter 3.

5.122 A further point of difference from the current NSW provision is that the VLRC model makes provision for both improper questions and improper questioning. This would allow the court to intervene in the situation where individual questions are not misleading or confusing, but the order in which they are put is misleading or confusing.

5.123 Finally, while the VLRC is not persuaded that the duty should be of general application, it maintains that additional protection must be given by the courts to vulnerable witnesses. The VLRC is convinced that a specific duty in relation to vulnerable witnesses offers the best prospect of changing the culture of judicial non-intervention. It is the expectation of the VLRC that judicial concerns about the effect on a fair trial of provisions requiring intervention where questioning is inappropriate are less likely to arise if the witness is a vulnerable witness.

5.124 In other words, the VLRC believes that a separate provision to deal with questioning of vulnerable witnesses is likely to be a more effective means of protecting people who fall into this category. The VLRC has considered the views expressed by some that the imposition of a duty on judges to limit improper questioning by reference to the vulnerability of witnesses is inappropriate or unworkable. It takes the view however, that, subject to a modification mentioned below, such an approach is workable.

5.125 The model put forward by the VLRC defines vulnerable witness to make it clear that persons under the age of 18 and persons with a cognitive impairment are to be regarded as vulnerable. This will prevent argument about whether or not the judicial duty applies when the witness is a child or a person with a cognitive impairment. However, the proposed provision will also impose a duty on the judicial officer in relation to other witnesses who may be found to be vulnerable because of other factors. Those factors should include:

  • the age and cultural background of the witness;
  • the mental, physical or intellectual capacity of the witness;
  • the relationship between the witness and any party to the proceedings; and
  • the nature of the offence.

5.126 This model removes the need for argument as to whether a witness is vulnerable in the most obvious of cases, while leaving scope for a witness to be treated as a vulnerable witness in other circumstances. A witness may be vulnerable not because of any inherent attribute he or she may have, but because of the circumstances of the particular offence or a relationship to other parties to the proceedings. Conversely, a witness may not be vulnerable simply because he or she is the victim of a certain type of offence. Judges, therefore, must be given some capacity to find a witness vulnerable for the purposes of limiting cross-examination based on the particular circumstances of the case. The above list of factors is consistent with provisions in non-uniform Evidence Act jurisdictions in relation to improper questions.[161] These terms are also consistent with the criteria on which a witness is deemed to be a ‘special witness’ under state legislation for the purpose of allowing other measures such as the use of closed circuit television or allowing evidence to be given in a closed court.[162]

5.127 The VLRC considers that the best way to address any issue of unfairness to a party is to provide a mechanism for determining the appropriate limits on cross-examination which focuses on the central issues. It proposes that the section allow the court not to enforce the section provided it is satisfied in the circumstances that it is necessary that the question be put. The onus will be placed upon the party questioning to justify the questioning by demonstrating that it is necessary. This means that the imposition of a duty will not totally remove the judge’s discretion to decide but will require the judge to intervene unless it can be shown by the questioner that the manner of questioning is necessary. The VLRC also believes that this will reduce the scope and opportunity for successful challenges to the judge’s application of the duty.

5.128 The VLRC advances the following proposal:

Section 41 of the uniform Evidence Acts should be amended to permit a court to disallow an improper question or questioning put to a witness in cross-examination, or inform the witness that it need not be answered. An improper question or questioning should be defined as a question or questioning that is unfair to the witness because it is:

(a) misleading, confusing or

(b) unnecessarily repetitive;

(c) annoying, harassing, intimidating, offensive, humiliating or oppressive; or

(d) put to the witness in a manner or tone that is inappropriate (including because it is humiliating, belittling or otherwise insulting), or has no basis other than a sexual, racial, cultural or ethnic stereotype.

The uniform Evidence Acts should be amended to provide, in relation to a vulnerable witness, that a court must disallow any question of the type referred to above unless satisfied that it is necessary in the circumstances that the question be put.

A ‘vulnerable witness’ is to be defined as a person under the age of 18, or a person with a cognitive impairment/intellectual disability, and also includes any other person rendered vulnerable by reason of:

(a) the age or cultural background of the witness;

(b) the mental, physical or intellectual capacity of the witness;

(c) the relationship between the witness and any party to the proceedings; and

(d) the nature of the offence.

Conclusion

5.129 It is clear that to date the discretionary approach has not provided witnesses with adequate protection. At the heart of the difference between the Commissions is a debate about the most effective way of addressing the competing policy concerns and how best to change the adversarial culture to one in which protection is appropriately and readily provided to witnesses. The VLRC takes the view that, having regard to the fact that the New South Wales provision has only been in force since August 2005,[163] it is too early to judge its operation. Whatever opinions may have been expressed to date by those who have applied or experienced the application of a provision, a reliable assessment of its operation is not possible. In this situation, its concerns cannot be met by consideration of the experience of the New South Wales provision.

5.130 It is desirable for the uniform Evidence Acts to contain effective and uniform provisions to deal with this issue. But it is also important that the best solution for the problem be developed and adopted in any uniform proposal. Should the VLRC proposal be adopted in Victoria, it will be possible to assess its operation. At the same time a better assessment will be able to be made of operation of the New South Wales provision. Out of that experience, the uniform Evidence Act jurisdictions will be able to make an informed choice as to the best approach. That may be one of the above approaches, or some combination or variation of them.

5.131 Reference has been made to the issue of culture and the need for change. The VLRC noted in its sexual offences report that:

In order to maximise the effectiveness of tighter legislative controls on the types of questions asked of child witnesses, prosecutors, defence counsel and judicial officers need to be aware of the rationale for those changes. Previous experience has shown that legislative change in isolation from attitudinal change is not effective.[164]

5.132 The Commissions endorse the VLRC’s recommendations regarding judicial and practitioner education on the needs of vulnerable witnesses in the context of this Inquiry. This recommendation is made in the context of other recommendations for targeted judicial and practitioner education programs in Recommendation 3–1.

Use of documents in cross-examination

5.133 Section 44 of the uniform Evidence Acts concerns circumstances where a cross-examiner may question a witness about a previous representation alleged to have been made by a person other than the witness. Section 44(2) allows the witness to be questioned on the representation if evidence of the representation has or will be admitted into evidence. Section 44(3) allows limited questioning on a document that would not be admissible if the document is produced or shown to the witness. In that case, neither the witness nor the cross-examiner is to identify the document or disclose its contents. The witness may only be asked whether, having seen the document, he or she stands by the evidence that he or she has given.

5.134 Section 44 reflects the common law as stated in The Queen’s Case, a case that concerned the trial of Queen Caroline for adultery. During the trial, counsel sought to cross-examine a witness about a letter. The ruling reads:

If on cross-examination, a witness admits a letter to be of his hand-writing he cannot be questioned by counsel whether the statements, such as counsel may suggest, are contained in it, but the whole letter must be read in evidence … In the ordinary course of proceedings, such letter must be read as part of the cross-examining counsel’s case. The court, however, may permit it to be read at an earlier period, if the counsel suggest that he wishes to have the letter immediately read, in order to found certain questions upon it, considering it, however, as part of the evidence of the counsel proposing such a course, and subject to the consequences thereof. [165]

5.135 In ALRC 26, the ALRC concluded that there was no policy reason to preclude cross-examination on statements that have or will be received into evidence. In the case of a document that cannot or will not be adduced, the ALRC approved of the common law approach in The Queen’s Case under which the witness could be handed the document, asked to read it and then state whether he or she still adheres to his or her testimony.[166]

5.136 The ALRC acknowledged that there were criticisms of this approach on the basis that it may be oppressive to hand a witness a document and then cross-examine him or her so that an inference may be drawn on its contents.[167] For example, in 1978, the NSWLRC noted:

It seems undesirable to have a system where documents are handed around the courtroom without the jury hearing of their contents directly because of a rule of admissibility, but with the possibility open of their drawing inferences as to their contents, particularly where counsel has hinted at or summarised their contents.[168]

5.137 However, the ALRC considered that the power of the judge to control cross-examination and the rules contained in s 44(3) were sufficient protection. A judge may also order that the document be produced for examination by the court under s 45, if the judge thinks that a false impression of the contents of the document has been given.[169]

5.138 In relation to s 44(3), Odgers notes that it was suggested in R v Hawes[170] (under the common law) that it would be virtually impossible for the judge or jury not to gain the impression during cross-examination that the document asserted something contrary to the witness’ testimony.[171] In Hawes, Hunt CJ at CL stated that he had never been satisfied as to the validity of this rule and concluded that the decisions that support it are of doubtful authority. However, his Honour concluded that, in the circumstances of the case, the refusal to allow counsel to put the records to the witness did not unjustly deny an opportunity to the defence.[172]

5.139 In DP 69, the Commissions did not identify any significant concerns with s 44(2) where the evidence has or will be admitted into evidence and proposed no change in that regard. However, the Commissions noted both the issue raised by Odgers and concerns raised in the previous Evidence inquiry regarding the practice under s 44(3) where the document is not admissible or counsel cross-examining does not intend to tender the document. Whilst the Acts are a reflection of the common law in this regard,[173] the Commissions agreed that the judge or jury might be susceptible to the impression (that cannot be refuted elsewhere) that the document asserted something contrary to the witness’ testimony.[174]

5.140 However, the Commissions concluded that repeal of s 44(3) and (4) of the uniform Evidence Acts would mean that the common law would apply in this area and the result would effectively be no change to the practice.[175] It was also argued that judges could exercise greater control over this type of questioning under the existing provisions.

5.141 Where a judge is concerned that counsel is confusing or misleading the court or jury by questioning a witness on a previous representation of another person that is inadmissible (or counsel does not intend to tender), he or she may call for the document to be produced under s 45(1)(b) and give directions as to its use.[176] A judge could also presumably refuse to allow the document to be put to the witness under the general power in s 26 to control the questioning of witnesses.[177] It is noted that a survey of case law undertaken by the Commissions reveals that the sections have provoked little comment, other than in the cases mentioned above.

5.142 Further, concerns with s 44 have not been raised with the Commissions following DP 69. On this basis, the Commissions remain of the view that no amendment of s 44 of the uniform Evidence Acts is necessary.

The rule in Browne v Dunn

5.143 The common law rule in Browne v Dunn[178] states that where a party intends to lead evidence that will contradict or challenge the evidence of an opponent’s witness, it must put that evidence to the witness in cross-examination.[179] It is essentially a rule of fairness—that a witness must not be discredited without having had a chance to comment on or counter the discrediting information. It also gives the other party notice that its witness’ evidence will be contested and further corroboration may be required.[180]

5.144 There are a number of consequences arising from a breach of the rule. The court may order that the witness be recalled to address the matters on which he or she should have been cross-examined. The court may also:

  • prevent the party who breached the rule from calling evidence which contradicts or challenges that witness’ evidence in chief;[181]
  • allow a party to re-open its case to lead evidence to rebut the contradictory evidence or corroborate the evidence in chief of the witness;[182]
  • comment to the jury that the cross-examiner did not challenge the witness’ evidence in cross-examination, when that could have occurred;[183] or
  • comment to the jury that the evidence of a witness should be treated as a ‘recent invention’ because it ‘raises matters that counsel for the party calling that witness could have, but did not, put in cross-examination to the opponent’s witness’.[184]

5.145 Courts have been clear, however, that while there are established remedies for a breach of the rule courts will have sufficient flexibility to respond to the particular problem before it.[185] The consequences of a breach of the rule in Browne v Dunn may also differ based on whether it is a criminal or civil matter. In R v Birks, Gleeson CJ noted that the failure to cross-examine may be based on counsel’s inexperience or a misunderstanding as to instructions. Given the serious consequences, any judicial comment on a failure to cross-examine must take into account these factors, rather than allowing the jury to assume that the contradictory evidence must be a recent invention.[186]

5.146 The rule does not apply in every circumstance where a question is not put to a witness. In civil matters, where the issues in dispute are well known to the parties from the discovery process, the fact that the witness has had notice of the issues will make the rule redundant. In Porter v Oamps,[187] Raphael FM concluded that Browne v Dunn did not apply because the parties were aware of the issues by the time of the trial and knew the responses that each witness was likely to give to the propositions put to them.

5.147 Section 46 of the uniform Evidence Acts mirrors part of the rule in Browne v Dunn, but does not replace it. Under the section:

(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.

5.148 It was not the ALRC’s intention that s 46 displace the common law in relation to possible remedies for a breach of the rule in Browne v Dunn. In ALRC 26, the ALRC stated that it was not possible or appropriate for evidence legislation to address issues such as comments that may be made based on inferences drawn from a failure to comply with the rule. The legislation, it was argued, should only allow judicial discretion to permit parties to recall witnesses who should have been cross-examined.[188] Case law has confirmed that the common law continues to operate in this area.[189]

5.149 It was asked in IP 28 whether s 46 of the uniform Evidence Acts deals adequately with the rule in Browne v Dunn and whether the consequences of a breach of the rule available at common law should be included in the Acts.[190]

5.150 Following IP 28, the Inquiry did not receive many submissions addressing this issue. One senior practitioner argues that s 46 is unnecessary and should be repealed, leaving the common law to apply. His view is that the remedy available under s 46 is too simple and could operate unfairly.[191]

5.151 The NSW DPP submits that s 46 does not require amendment and that the consequences of a breach of the rule in Browne v Dunn at common law are not needed under the Acts.[192] The NSW PDO does not support a statutory formulation of the consequences of a breach. It notes that recent doubt as to whether the rule applied in criminal proceedings means that it would be unfortunate for the Acts to include the entirety of the rule.[193]

5.152 As noted above, it was never intended that s 46 operate as a code to the exclusion of the common law remedies for a breach of the rule in Browne v Dunn. As the ALRC concluded in ALRC 26, a statutory enactment of the rule would be too rigid to take into account the need for a variety of options to be available to the court to remedy a breach. The Commissions received no further submissions on this issue, and therefore recommend no change to s 46.

[53] Uniform Evidence Acts ss 40–46.

[54] W Harris, ‘Examination of Witnesses under the Commonwealth Evidence Act 1995’ (1996) 26 Queensland Law Society Journal 269, 271.

[55] Uniform Evidence Acts s 43(1).

[56] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [39]. See McLennan v Bowyer (1961) 106 CLR 95.

[57] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [623].

[58] Ibid, [625].

[59] T Smith and O Holdenson, ‘Comparative Evidence: The Unhelpful Witness’ (1998) 72 Australian Law Journal 720, 720.

[60]R v Thynne [1977] VR 98.

[61] W Harris, ‘Examination of Witnesses under the Commonwealth Evidence Act 1995’ (1996) 26 Queensland Law Society Journal 269, 270.

[62]R v Hogan [2001] NSWCCA 292.

[63]R v Pantoja (Unreported, NSW Court of Criminal Appeal, James J, 5 November 1997).

[64] These being (non-exhaustively): the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; the extent to which to do so would be unfair to a party or to a witness; the importance of the evidence in relation to which the leave, permission or direction is sought; the nature of the proceeding; and the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

[65]R v Souleyman (1996) 40 NSWLR 712.

[66]R v Lozano (Unreported, New South Wales Court of Criminal Appeal, 10 June 1997).

[67]Randall v the Queen (2004) 146 A Crim R 197.

[68] Ibid, 205.

[69]Saunders v The Queen [2004] TASSC 95.

[70] Office of the Director of Public Prosecutions (Tas), Consultation, Hobart, 15 March 2005.

[71]R v Milat (Unreported, New South Wales Supreme Court, Hunt CJ at CL, 23 April 1996).

[72] Ibid, 7.

[73]Whitehall v The Queen (1983) 152 CLR 657, 674.

[74] P Zahra, Advocacy: Cross-Examination: Understanding the Parameters Set by the Evidence Act 1995 (2003) College of Law, 102.

[75]Adam v The Queen (2001) 207 CLR 96. Adam is also discussed in Ch 12.

[76] Section 60 allows evidence of a previous representation that is relevant and admitted for a non-hearsay purpose, to be used also for a hearsay purpose, that is, to prove the truth of its contents. See Ch 7.

[77]Adam v The Queen (2001) 207 CLR 96, 107. However, the propriety of this practice was based on the prior statement being admissible as evidence of the truth of what was said. See discussion of this aspect of Adam in Ch 12.

[78]R v GAC (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, McInerney and Sully JJ, 1 April 1997), 18.

[79] New South Wales Public Defenders Office, Submission E 50, 21 April 2005; Law Council of Australia, Submission E 32, 4 March 2005; Victoria Legal Aid, Submission E 22, 18 February 2005.

[80] Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005; Office of the Director of Public Prosecutions (Tas), Consultation, Hobart, 15 March 2005; New South Wales District Court Judges, Consultation, Sydney, 3 March 2005; Commercial Bar Association of the Victorian Bar, Submission E 37, 8 March 2005.

[81] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [5.72].

[82] Commonwealth Director of Public Prosecutions, Submission E 108, 16 September 2005.

[83] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [5.58]–[5.59].

[84] New South Wales Public Defenders Office, Submission E 89, 19 September 2005.

[85] Ibid.

[86] Ibid.

[87] Criminal Bar Association of Victoria, Submission E 114, 22 September 2005. See Ch 7, Rec 7–2.

[88] Ibid.

[89] Victoria Legal Aid, Submission E 113, 30 September 2005.

[90] Ibid.

[91] Ibid.

[92] The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005.

[93] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [626].

[94] T Smith and O Holdenson, ‘Comparative Evidence: The Unhelpful Witness’ (1998) 72 Australian Law Journal 720, 727.

[95] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [625].

[96] Ibid, [625].

[97]R v White [2003] NSWCCA 64, [66]. See also S Odgers, Uniform Evidence Law (6th ed, 2004), [1.2.3300].

[98]R v Souleyman (1996) 40 NSWLR 712. See also S Odgers, Uniform Evidence Law (6th ed, 2004), [1.2.3300].

[99] See, for example, T Drabsch, Cross-Examination and Sexual Offence Complainants (2003) NSW Parliament, 8.

[100] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [631].

[101] Issues involving child witnesses and children’s evidence are also discussed in Chs 7, 18 and 20.

[102] Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, ALRC 84 (1997), [14.111]. The Wood Royal Commission heard a number of similar complaints in relation to treatment of child witnesses: Royal Commission into the New South Wales Police Service, Final Report, vol 5 (1997), [15.92]. Similar comments were also made to the VLRC in its inquiry into reform of sexual offences law and procedure: Victorian Law Reform Commission, Sexual Offences: Final Report (2004).

[103] Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, ALRC 84 (1997), Recs 110–112. See also Victorian Law Reform Commission, Sexual Offences: Final Report (2004), Ch 3.

[104] NSW Bureau of Crime Statistics and Research, An Evaluation of the NSW Child Sexual Assault Specialist Jurisdiction Pilot (2005), 2.

[105] Ibid, x.

[106] Part IAD was inserted by the Measures to Combat Serious and Organised Crime Act 2001 (Cth).

[107]Crimes Act 1914 (Cth) s 15YE. Part IAD of the Crimes Act 1914 (Cth) also includes specific provisions applying to unrepresented defendants in sexual offence cases and limitations on how and when child witnesses and child complainants can be cross-examined. A similar protection is also available under s 28 of the Evidence (Children) Act 1997 (NSW).

[108] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [5.146].

[109] Queensland Law Reform Commission, The Receipt of Evidence by Queensland Courts: The Evidence of Children, Summary of Recommendations, Report No 55: Part 2A (2000), Rec 13.1.

[110] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), Recs 143, 144.

[111] New South Wales Law Reform Commission, Questioning of Complainants by Unrepresented Accused in Sexual Offence Trials, Report 101 (2003), [2.2].

[112] Ibid, [2.7].

[113] See, eg, Criminal Procedure Act 1986 (NSW) s 293.

[114]R v TA (2003) 57 NSWLR 444, 446.

[115] J Wood, ‘Sexual Assault and the Admission of Evidence’ (Paper presented at Practice and Prevention: Contemporary Issues in Adult Sexual Assault in New South Wales, Sydney, 12 February 2003), 30–31. See also Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005.

[116] NSW Adult Sexual Assault Interagency Committee, A Fair Chance: Proposals for Sexual Assault Law Reform in NSW (2004). This report was also given to this Inquiry as a submission: Women’s Legal Services (NSW), Submission E 40, 24 March 2005. See also NSW Health Department Child Protection and Violence Prevention Unit, Submission E 23, 21 February 2005.

[117] NSW Adult Sexual Assault Interagency Committee, A Fair Chance: Proposals for Sexual Assault Law Reform in NSW (2004), 3.

[118] Ibid, 4. Evidence Act 1977 (Qld) s 21(2) states that in deciding whether a question is an improper question, the court must take into account: (a) any mental, intellectual or physical impairment the witness has or appears to have; and (b) any other matter about the witness the court considers relevant, including, for example, age, education, level of understanding, cultural background or relationship to any party to the proceeding.

[119] For example, a spouse, parent or child of the accused. The compellability of certain witnesses is considered in detail in Ch 4.

[120]Evidence Act 1977 (Qld) s 21A; Evidence Act 1939 (NT) s 21A; Evidence Act 1929 (SA) s 13; Evidence Act 1958 (Vic) s 37C. See J Hunter, C Cameron and T Henning, Litigation II: Evidence and Criminal Process (7th ed, 2005), [23.80].

[121] Intellectual Disability Rights Service, Submission E 101, 23 September 2005.

[122] C O’Kelly, M Kebbell, C Hatton and S Johnson ‘Judicial Intervention in Court Cases Involving Witnesses with and without Intellectual Disabilities’ (2003) Legal and Criminological Psychology Vol 8, 229 cited in NSW Bureau of Crime Statistics and Research, An Evaluation of the NSW Child Sexual Assault Specialist Jurisdiction Pilot (2005), 51.

[123]Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, 477.

[124] Ibid, 477–478.

[125] Criminal Procedure Further Amendment (Evidence) Bill 2005 (NSW), Sch 1 was assented to on 31 May 2005.

[126] New South Wales, Parliamentary Debates, Legislative Assembly, 23 March 2005, 14899 (R Debus—Attorney General).

[127] The Hon Rob Hulls MP, ‘Court Proceedings to be Changed for Sexual Assault Cases’ (Press Release, 14 November 2005).

[128] Criminal Procedure Further Amendment (Evidence) Bill 2005 (NSW). For the purposes of the section, ‘criminal proceedings’ means proceedings against a person for an offence (summary or indictable), including committal proceedings, bail proceedings, sentencing and appeals: s 275A(9).

[129]Criminal Procedure Act 1986 (NSW) s 275A(3).

[130] Ibid s 275A(5), (6).

[131] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [5.96]–[5.106].

[132] Ibid, [5.108].

[133] Ibid, Proposal 5–3.

[134] Ibid, Proposal 5–4.

[135] Justice R French, Consultation, Perth, 5 October 2005; The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005; Victoria Police, Submission E 111, 30 September 2005; Intellectual Disability Rights Service, Submission E 101, 23 September 2005; The Law Society of South Australia, Submission E 69, 15 September 2005.

[136] Victoria Legal Aid, Submission E 113, 30 September 2005.

[137] The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005.

[138] Attorney-General’s Department, Submission E 117, 5 October 2005.

[139] Justice R French, Submission E 119, 6 October 2005. This view was echoed by a Federal Magistrate: Federal Magistrate S Lindsay, Consultation, Adelaide, 5 October 2005.

[140] Judicial Officers of the Federal Court of Australia, Consultation, Melbourne, 18 August 2005.

[141] Women’s Legal Services Victoria, Submission E 110, 30 September 2005. See also J Gans, Consultation, Melbourne, 17 August 2005.

[142] Intellectual Disability Rights Service, Submission E 101, 23 September 2005.

[143] NSW Attorney General’s Department Criminal Law Review Division, Submission E 95, 21 September 2005.

[144] Ibid.

[145] Ibid.

[146] Director of Public Prosecutions (NSW), Submission E 87, 16 September 2005.

[147] NSW Disability Discrimination Legal Centre, Submission E 98, 22 September 2005.

[148] Women’s Legal Services Victoria, Submission E 110, 30 September 2005; Rosemount Youth and Family Services, Submission E 107, 15 September 2005; Eastern and Central Sexual Assault Service, Submission E 61, 24 August 2005; NSW Rape Crisis Centre, Consultation, Sydney, 4 August 2005.

[149] Rosemount Youth and Family Services, Submission E 107, 15 September 2005.

[150] Director of Public Prosecutions (NSW), Submission E 87, 16 September 2005.

[151] New South Wales Public Defenders Office, Submission E 89, 19 September 2005; Justice R French, Consultation, Perth, 5 October 2005; The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005; Victoria Legal Aid, Submission E 113, 30 September 2005; G Brady, Consultation, Sydney, 26 August 2005.

[152] NSW Disability Discrimination Legal Centre, Submission E 98, 22 September 2005; Judge S Bradley, Consultation, Cairns, 12 August 2005; The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005.

[153] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), Proposals 5–2 and 5–3.

[154] R Ellis, Judicial Activism in Child Sexual Assault Cases (2005), National Judicial College of Australia Children and the Courts Conference, Sydney, November 2005.

[155] NSW Attorney General’s Department Criminal Law Review Division, Submission E 95, 21 September 2005.

[156] J Spigelman, ‘The Truth Can Cost too Much: The Principle of a Fair Trial’ (2004) 78 Australian Law Journal 29, 43.

[157] New South Wales, Parliamentary Debates, Legislative Assembly, 23 March 2005, 14899 (R Debus—Attorney General), 14899.

[158] NSW Attorney General’s Department Criminal Law Review Division, Submission E 95, 21 September 2005.

[159] NSW Adult Sexual Assault Interagency Committee, A Fair Chance: Proposals for Sexual Assault Law Reform in NSW (2004), 4.

[160] K McIntosh, Submission E 74, 15 September 2005.

[161] Evidence Act 1977 (Qld) s 21.

[162] See for example Evidence Act 1906 (WA) s 106R; Evidence Act 1929 (SA) s 13.

[163] Section 275A of the Criminal Procedure Act 1986 (NSW) commenced on 12 August 2005.

[164] Victorian Law Reform Commission, Sexual Offences: Final Report (2004), [5.152].

[165]The Queen’s Case (1820) 2 Brod & B 284; 129 ER 976.

[166] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [636].

[167] Ibid, [636].

[168] New South Wales Law Reform Commission, The Course of the Trial: Working Paper (1978), [9.14].

[169] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [636].

[170]R v Hawes (1994) 35 NSWLR 294.

[171] S Odgers, Uniform Evidence Law (6th ed, 2004), [1.2.4220].

[172]R v Hawes (1994) 35 NSWLR 294, [303].

[173] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [307].

[174] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [5.133].

[175] Ibid, [5.133].

[176] Note that under s 45(5), the mere production of a document to a witness who is being cross-examined does not give rise to a requirement that the cross-examiner tender the document.

[177] Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [5.133].

[178]Browne v Dunn (1893) 6 R 67.

[179] The rule has also been held to apply to a party’s failure to cross-examine its own witness pursuant to s 38: R v McCormack (No 3) [2003] NSWSC 645. The rule also may operate where the evidence is in the form of a written statement, rather than testimony: Nye v New South Wales (2003) 58 NSWLR 152. See S Odgers, Uniform Evidence Law (6th ed, 2004), [1.2.4440].

[180] J Gans and A Palmer, Australian Principles of Evidence (2nd ed, 2004), 64.

[181]Payless Superbarn (NSW) Pty Ltd v O’Gara (1990) 19 NSWLR 551; see also J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002), [46.10].

[182] J Gans and A Palmer, Australian Principles of Evidence (2nd ed, 2004), 64.

[183] J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002), [46.10].

[184] Ibid, [46.10].

[185] See Payless Superbarn (NSW) Pty Ltd v O’Gara (1990) 19 NSWLR 551, 556; J Heydon, Cross on Evidence (7th ed, 2004), [17460].

[186]R v Birks (1990) 19 NSWLR 677, 685. See also J Anderson, J Hunter and N Williams, The New Evidence Law: Annotations and Commentary on the Uniform Evidence Acts (2002), [46.15]. In R v Liristis (2004) A Crim R 547, whilst not deciding the point, the New South Wales Court of Criminal Appeal said there was ‘much to commend’ the view that the High Court has implied in decisions such as Azzopardi v The Queen (2001) 205 CLR 50 and Dyers v The Queen (2002) 210 CLR 285 that the rule does not apply to an accused in a criminal trial. However, both these cases concerned the right of the accused not to give evidence, rather than the rule in Browne v Dunn in a strict sense.

[187]Porter v Oamps (2004) 207 ALR 635.

[188] Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [635].

[189]Heaton v Luczka (Unreported, New South Wales Court of Appeal, 3 March 1998).

[190] Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), Q 3–6.

[191] P Greenwood, Submission E 47, 11 March 2005.

[192] Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005.

[193] New South Wales Public Defenders Office, Submission E 50, 21 April 2005, citing the decision in R v Liristis (2004) 146 A Crim R 547, fn 175.