THE USE OF DOCUMENTS IN CROSS EXAMINATION: THE...

THE USE OF DOCUMENTS IN CROSS EXAMINATION:

THE RULES OF PRACTICE B.W. Collins QC

Copyright

19 October 2009

“And I would sooner trust the smallest slip of paper for truth, than the strongest and

most retentive memory, ever bestowed on mortal man.”1

DOCUMENTS WRITTEN OR SIGNED BY THE WITNESS UNDER CROSS

EXAMINATION : PRIOR INCONSISTENT STATEMENTS

INTRODUCTION

Commentary

Although the law upon the subject of cross examination on documents has passed

through at least three major legislative treatments since the Queen‟s case2 was decided

in 1820 some of the rules developed in that case remain part of the law today. It is

therefore necessary to understand a little of the history of the subject.

The High Court of Australia has described the Queen‟s case as “the seminal case on

proof of inconsistent statements”3 The effect of the rules in the Queen‟s case (supra)

was that there could be no cross-examination of a witness on his own document

unless it was first shown or read to him and the cross-examiner was then bound to

tender the document. A number of disadvantages4 led to the rules being amended by

statute. Prior to the introduction of the Evidence Act 1995 (NSW) (“the Act”), the

principal statutory provision relating to cross-examination on documents was s.55 of

the Evidence Act 1898 (NSW) which complemented s.54 of the same Act, which was

limited to oral statements. 5

Cross Examination on Documents

In TPC v TNT Management 56 ALR at 681 Franki J. said that:

1 Miller v Cotton (1848) 5 Ga 341 at 349

2 2 Broderip & Bingham 284, 129 ER 976

3 Nicholls v The Queen, Coates v The Queen (2005) 219 CLR 196 at 233. Nicholls v The Queen (supra) also

serves as a timely reminder of the requirement in s.43 of the Act that before proof of a previous inconsistent

statement may be tendered, the circumstances of the statement must be identified to the witness in sufficient

detail to designate the particular occasion. See Nicholls (supra) at 232. 4 These are set out in Cross on Evidence and in Wigmore and interestingly include the proposition that the strict

operation of the rule was unfair to the cross examiner because it deprived him of the weapon of surprise. The

American edition of Wigmore was particularly scathing: “In the year 1820 an English decision, laid down a rule

which for unsoundness of principle, impropriety of policy, and practical inconvenience in trials, committed the

most notable mistake that can be found among the rulings upon the present subject. The ruling was in England

soon afterwards expressly annulled by legislation, but it was meanwhile widely followed in this country in

ignorance of its repudiation in the jurisdiction of origin.” (The reference is to the United States of America)

(Wigmore, paragraph 1259) 5 For a detailed discussion of the decision in the Queen‟s see for example Macdonald v Evans (1852) 11 CB

929.

2

bcmb8079/Speeches 2009

“In my opinion the combined effect of sections 54 and 55 of the Evidence Act

1898 (NSW) is that a witness who is not a party may not be cross examined

about his own document without showing it to him and without any obligation

to put it into evidence unless in the document the witness has made a

statement inconsistent with his present evidence and does not distinctly admit

that he made such a statement: see generally Alchin v Commissioner for

Railways (1935) 35 SR (NSW) (498 at 509-510).

In TPC v TNT Management Pty Limited6 it was in effect suggested that the Queen‟s

case7 may still apply where the document being used in cross examination concerns a

topic which is not inconsistent with the witnesses‟ evidence, for example, upon an

issue which the witness did not testify to in evidence in chief because her or his

evidence was not helpful to the side calling the witness. In that case the witness was

not a party and had not been cross examined for the purpose of showing any

inconsistency between the document and his evidence. Therefore the witness could

not be cross examined on his own document without showing it to him, a vestige of

the rule in the Queen‟s Case (supra).

The present position in practice is regulated by ss.43, 44 and 45 of the Act. It is

convenient to deal firstly with s.43 which rolls up the earlier law contained in ss.54

and 55 of the 1898 Act.

Rule 1

1. All questions must first clear the hurdle of relevance.

Commentary

It is essential that the cross examiner approach the problem in limine by asking

whether the question proposed to be addressed to the witness whether he or she is a

party or not, concerning a document whether written or composed by the witness or

not, has the necessary probative value. The principal rule of relevance is set out in

s.55(1) of the Act:

“If the evidence were accepted, could that evidence rationally affect (directly

or indirectly) the assessment of the probability of the existence of a fact in

issue in the proceeding.”

Logical relevance is therefore sufficient. Evidence is not to be taken as inadmissible

only because it relates merely to the credibility of a witness.

Rule 2

2. If any witness including a party be merely asked whether he or she wrote or

signed a document which contains a prior inconsistent statement alleged to have

been made by the witness and the cross examiner has made no reference to its

6 (1983) 56 ALR 647 at 680-681

7 The Queen‟s case itself is the subject of an extensive historical analysis by Dermot Ryan SC in a paper

recently delivered to the NSW Bar entitled The Queen‟s Case (Bar Association CPD Seminar 10 June 2009.

3


contents then such a document need not be shown to the witness and if it is

shown to the witness it is not necessary for the cross examiner to put the

document into evidence nor is it necessary to give complete particulars of the

statement to the witness. 8

Commentary

This rule follows from Section 43(1) of the Act.

Rule 3

3. When cross examining a witness “about”

9 prior statements made by the witness

such prior statements must be inconsistent with evidence given by the witness for

the reason that except to discredit the witness such cross examination has no

relevance unless the witness is a party.

Commentary

This rule follows from the terms of s.43 of the Act itself and it would seem that there

is no difficulty or controversy concerning the application of the rule. Questions of the

kind contemplated by s.43 are in their nature largely exploratory up to a point. What

is contemplated by the first part of s.43(1) is the type of question which enquires

whether or not the witness under cross examination has made a prior inconsistent

statement (although those will not necessarily be the words used by the cross

examiner). While such a question may be regarded as an initial probe it can

nevertheless be a potent weapon in the hands of the cross examiner of a witness who

does not quite know exactly what material the cross examiner may or may not have

available to him. The threshold beyond which the preliminary probe cannot pass is

established by s.43(2) which highlights the next critical decision making crossroads

for counsel. That is for the reason that if the witness does not admit (and this is of

course the most common occurrence) that he or she has made a prior inconsistent

statement then that will be the end of the matter unless the cross examiner chooses to

go further and to adduce evidence of the statement. But if he does then he is required

to satisfy both of the requirements of s.43(2)(a) and (b).

8 “Section 43(1) A witness may be cross examined about a prior inconsistent statement alleged to have been

made by the witness whether or not:

(a) complete particulars of the statement have been given to the witness;

(b) a document containing a record of the statement has been shown to the witness.

(2) If, in cross examination, a witness does not admit that he or she has made a prior inconsistent statement, the

cross examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross

examination, the cross examiner:

(a) informed the witness of enough of the circumstance of the making of the statement to enable the

witness to identify the statement; and

(b) drew the witness‟s attention to so much of the statement as is inconsistent with the witness‟s evidence.

(3) For the purpose of adducing evidence of the statement, the party may reopen the party‟s case.” 9 See the terms of 43(1).

4


Rule 4

4. If the witness is a party then the only requirement imposed upon the cross

examiner is that the contents of the document must be relevant to an issue in the

proceedings10

and for that reason admissible in evidence if the opposing party

seeks to tender the document.

Commentary

See R v Treacey.11

In the case the appellant had been charged with murder. The

prosecution sought to tender a statement made by the accused when in a state of

serious ill health to a police officer which was made to the police officer on a day that

the accuse was due to appear in a local court on a charge on larceny. A document

comprising written questions by a police officer to which the accused wrote answers.

The accused was then cross examined by the Crown upon those answers and those

answers were contrasted with the answers that he had been giving on that same day in

the witness box in the hearing of the jury. The Court was firmly of the view that the

statement was inadmissible and said this:

“In our view, a statement made by a prisoner under arrest is either admissible

or it is not admissible. If it is admissible, the proper course for the prosecution

is to prove it, give it in evidence, let the statement if it is in writing be made an

exhibit, so that everybody knows what it is and everybody can inquire into it

and do what they think right about it. If it is not admissible, nothing more

ought to be heard of it, and it is quite a mistake to think that a document can

be made admissible in evidence which is otherwise inadmissible simply

because it is put to a person in cross examination.” (at page 236 of the Report)

Rule 5

5. The terms of s.102 of the Act provide that evidence that is relevant only to a

witness’s credibility is not admissible. However, for present purposes an

important exception to the credibility rule is to be found in s.106(c) of the Act

which provides that the credibility rule does not apply to evidence that tends to

prove that a witness has made a prior inconsistent statement if that evidence is

adduced otherwise than from the witness and the witness has denied the

substance of the evidence.

Commentary

Section 102 links directly in to s.43 in three ways. It contains an express exception to

the credibility rule. The exception applies to proof of an inconsistent statement that

the witness has denied making.

10

See s.55 of the Act. 11

(1944) 2 All.ER 229 at 236

5


Rule 6

6. If on cross examination the witness does not admit the making of a prior

inconsistent statement, that is a statement inconsistent with the evidence given by

the witness in the proceedings,12

then the cross examiner is not permitted to

adduce evidence of the statement otherwise than from the witness, unless in the

course of the cross examination, the cross examiner has informed the witness of

enough of the circumstances of the making of the statement to enable the witness

to identify the statement and drawn the witness’s attention to so much of the

statement as is inconsistent with the witness’s evidence given in the proceedings.

Commentary

These requirements follow from the terms of s.43(2) of the Act itself. These

requirements are strictly applied. The cross examiner must be precise. See Nicholls v

The Queen (supra) at footnote 3.

Rule 7

7. If the witness distinctly admits that he or she made a previous inconsistent

statement, then the purpose of discrediting the witness by the inconsistency has

been achieved, and the statement cannot be further proved in evidence unless it

is otherwise admissible, that is to say if it satisfies the test of relevance laid down

in s.55 of the Act. See later Rule 9 which is based on s.60 of the Act.

Commentary

See Alchin v Commissioner for Railways13

, a case decided before s.60 was enacted.

That decision remains applicable to those circumstances where the evidence is not

otherwise admissible.

Rule 8

8. On the other hand if the witness admits making a prior inconsistent statement

and the witness is also a party then his or her evidence will comprise an

admission as to that fact and may be viewed as an exception to the hearsay

nature of out of court statements. However, if an additional step is taken and the

witness swears that the prior inconsistent statement was a true statement of fact

then that previous statement is in evidence of the fact stated.

Commentary

See also R v Moore.14

12

See the dictionary definition of “prior inconsistent statement” in the Act. 13

(1935) 35 SR 498 at 508-509 per Jordan CJ. 14

(1995) 77 A.Crim.R. 577.

6


Rule 9

9. The rule embodied in s.60 of the Act

15 allows both consistent and inconsistent

statements to be used not only to assess the credibility of the witness but also to

serve as evidence of the matter stated.

Commentary

Section 60 is a radical departure from the previous common law. In Welsh (1996) A

Crim R 364 at page 369, Hunt CJ referred to the failure to recognise “the

extraordinarily wide ramifications of s.60 …” and said that “More than 12 months

later, we are all struggling with this statute, and with the extent to which s.60 does

apply.” Prior to 1995 the law did not permit evidence to be led of the prior

inconsistent statement upon any other issue than credit unless the witness was a party.

See Hammer v S. Hoffnung & Co. Limited 16

and R v Adam17

The effect of s.60 is that the hearsay rule does not now apply to evidence of a

previous representation, that is admitted for a purpose other than proof of the fact

intended to be asserted by the representation. So, if a prior inconsistent statement is

admitted because the statement is relevant for a purpose other than proof of the fact

intended to be asserted by the representation i.e. because of its effect in impeaching

the credibility of the witness, then it is also evidence of the truth of the fact asserted in

the document. In other words once in, the evidence is said to be in for all purposes.

In Lee v The Queen18

the prosecution led evidence from a police officer that a

prosecution witness had told the police that Lee had confessed to him, that is to the

prosecution witness. The alleged confession could not be proved by admissible

evidence relying upon the exception to the hearsay rule contained in the relevant State

Evidence Act because the evidence of the confession was not first hand within the

meaning of the statutory exception.

The basis upon which the evidence was propounded was said to be its relevance to the

prosecution witness's credibility as the witness had given evidence at the trial denying

that Lee had confessed to him. The earlier statement made to the police was therefore

one which was inconsistent with his evidence at the trial and prior to 1995 would have

engaged the old rule in Hammer v Hoffnung19

which required that unless the witness

was a party the prior inconsistent statement was relevant only to that witness‟s credit.

The trial judge admitted the evidence on the basis that once in the evidence was

available to be considered by the jury as evidence that Lee had in fact confessed to the

crime and had in fact committed the crime.

15

Section 60 provides: “The hearsay rule does not apply to evidence of a previous representation that is

admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the

representation.” 16

28 SR (NSW) 280 at p.284 17

207 CLR 96/ 18

(1998) 195 CLR 594 19

(supra)

7


In the High Court emphasis was laid upon the necessity to identify what was the

relevant "representation" upon which s.60 of the Act operated, for in Lee's case there

were two representations.

The first representation was what was asserted by the prosecution witness in his

statement to the police. On the other hand the second representation was a

representation allegedly made by the accused Lee to the prosecution witness. What

the prosecution witness was asserting was merely that Lee had told him certain things,

not that Lee had in fact committed the crime. The prosecution witness was never in

any sense a witness who could give direct observation evidence of relevant facts. In

those circumstances the High Court concluded that s.60:

"… does not convert evidence of what was said, out of court, into evidence of

some fact that the person speaking out of court did not intend to assert."20

That being so, what was required from the trial judge in Lee‟s case was a clear

direction to the jury as to the narrow and limited use which could be made of the

evidence of the prosecution witness's statement to the police. An alternative and

suggested safer course would have been to exclude the evidence entirely in reliance

upon the provisions of s.135 of the Act, a course which the High Court preferred.21

When s.60 of the Act speaks of “…evidence of a previous representation that is

admitted because it is relevant for a purpose other than proof of the fact intended to be

asserted by the representation” the word "purpose" in the section is to be objectively

ascertained.22

Rule 10

10. If a party is cross examining or has cross examined a witness about a prior

inconsistent statement alleged to have been made by the witness that is recorded

in a document or a previous representation alleged to have been made by

another person that is recorded in a document then the cross examining party

must produce the document or such evidence of the contents of the document as

is available to the party, if the court so orders either on the application of

opposing counsel or of the court’s own motion.

Commentary

This rule follows from s.43(2) of the Act. Thus the document must either be in Court

or capable of being produced. This is a forensic safeguard and is the equivalent of the

proviso to the former s.55 of the 1898 Evidence Act (NSW). Section 45(2) of the Act

was no doubt enacted to deal with vices of the kind highlighted by such cases as R v

Anderson23

and R v Sehan Yousry24

. The direct bearing of these cases upon the proper

20

Lee v The Queen (supra) at 601 21

Lee v The Queen at 604 22

R v Adam (1999) 47 NSWLR 267, affirmed in the High Court Adam v The Queen (2001) 207 CLR 96 where

there was no reference made to this question. 23

(1929) 21 Cr.App.R. 178 24

(1914) 11 Cr.App.R. 13

8


conduct of counsel in court and the operation of relevant Bar Rules, demands a brief

consideration of the kind of questionable conduct highlighted by cases such as those

to which reference has been made.

What happened in R v Sehan Yousry25

may be taken directly from a passage in the

judgment of Lord Coleridge who said:

“The question (prejudice in the minds of the jury) arose thus. The lady was

being cross-examined, and counsel for the prosecution held in his hand a piece

of paper, and instead of saying, “look at this piece of paper; do you adhere to

your answer”.26

He described it as a report from the Cairo Police as to her

origin, and then invited counsel for the defence to look at it, who was

sufficiently on his guard not to do so. The effect which it was calculated to

produce was, no doubt, that this was a report from the Cairo Police so

damaging to the appellant that her counsel dare not touch it. Now, that was

inadmissible in evidence, and in our judgment that was a wholly wrong

method to adopt. Counsel for the prosecution holding documents in his hand

which he cannot put in, has no right to suggest to the jury in any way what

they are.”

Thus if the document is not admissible it should not be used so as to convey to the

witness an erroneous impression. This is particularly important in view of the rules

which do not entitle the witness‟s counsel either to see the document or insist that the

cross examiner tender it or tender the document itself. See Meredith v Innes27

.

Similarly in Regina v Ford & Ors28

Alderson B said:

“If the deposition is not put in evidence it is impossible to tell whether it

contains the same or a different statement from that which the witness makes

in court; and a false impression may be produced upon the jury by the cross-

examination. The two statements may be precisely the same, yet this line of

cross-examination would naturally lead the jury to suppose that they were

different.”

Rule 11

11. The witness cannot insist upon seeing the document first before answering any

questions about the document or questions based upon the document.

Commentary

See North Australian Territory Company v Goldsborough Mort & Co (1893) 2 Ch.

381 at 385. This old common law rule is not dealt with in the Act and is a surviving

rule of practice. There is sound reason why that should be so. It has to do with the

same element of surprise, the desire for which fuelled much of the criticism of the rule

25

(1914) 11 Cr.App.R. 13 26

The precursor of the procedure adopted in R v Orton (supra). 27

(1930) 31 SR (NSW) 104 28

(1851) 5 Cox‟s Criminal Cases 184

9


in the Queen‟s case.29

No doubt the Court has the power30

to permit the witness to

see the document before answering such questions.

Rule 12

12. Semble at common law counsel for the witness being cross examined cannot

insist on seeing the document before the witness answers the question however

an application may now be made by counsel for the witness under cross

examination pursuant to s.45(2) for an order that the cross examining party

produce the document to counsel for the witness under cross examination.

Section 45 applies both to a prior inconsistent statement alleged to have been

made by the witness and a previous representation alleged to have been made by

another person that is recorded in a document. The latter course is authorised

by s.44 of the Act.

Commentary

In Collier v Nokes31

, an action in trespass and trover, counsel for the defendants

handed some letters to the witness and asked the witness and was told by the witness

in whose handwriting the letters were written. Seargent Byles for the plaintiff,

claimed to be entitled to see the letters which had been used in that way. Relying

upon a ruling by Baron Parke, the defendant contended that the defendant‟s counsel

had no right to see any documents under such circumstances. Chief Justice Wilde

was inclined to think that opposing counsel was entitled to see the letters “otherwise

he perhaps would not be able to shape his line of conduct". However as Baron Parke

had ruled to the opposite effect, the Chief Justice said that he would abide by that

ruling. This is hardly a clear guide but it is suggested that provided the other rules as

to the conduct of counsel cross-examining upon such documents have been adhered to

that the pursuit of the truth might be best served by permitting such a line of cross-

examination without conferring a right upon opposing counsel to see the documents.

Rule 13

13. If the witness is in conflict with his prior inconsistent statement it is not

necessary for the cross examiner to give the witness an opportunity to explain the

contradictory passages upon which the cross examiner relies.

See Savanoff v Re-Car Pty Limited32

. Note however the important role for re-

examination in the rehabilitation of credit in cases of this kind. It would be legitimate

to ask questions of the witness as to the circumstances in which the prior inconsistent

statement came to be made provided those questions fell within the accepted

principles regulating the nature of re-examination. See also the commentary to Rule

38 infra.

29

See fn. 3 supra. 30

See section 26 of the Act. 31

2 CAR. & K. 1012; 175 ER 426 32

(1983) 2 Qd.R.219 at 229.

10


Rule 14

14. It is legitimate however for counsel for the party calling the witness under cross

examination to re-examine the witness as to the circumstances in which the prior

inconsistent statement came to be made provided those questions fell within the

accepted principles regulating the nature of re-examination.

Commentary

Note the terms of s.39 of the Act regulating re-examination “a witness may be

questioned about matters arising out of evidence give by the witness in cross-

examination”. Re-examination is not limited to clearing up ambiguities.

Rule 15

15. If the previous statement of the witness is inadmissible the cross examiner is

permitted to ask the witness about the document but cannot identify the

document to the witness.

Commentary

The rationale for this rule is that once the cross examiner conveys to the court that

there is in existence an adverse document, the cross-examiner must be in a position to

produce the document and tender it in accordance with the law: see s.45(2) of the Act

and R v Anderson33

A document or written statement which is inadmissible for any

reason, is not one which can be tendered in accordance with law. Therefore in a jury

trial for example, to open up to a witness the contents of an inadmissible former

statement of his or hers whether he or she is a party or not may lead to the trial being

aborted.

Thus the rules are but an application of the more general rule that the presiding judge

is responsible for ensuring the fair conduct of the trial. In circumstances where a false

impression may be created by the use of a document which either could not be or is

not intended to be tendered, s.45(2) gives the judge power to call for the production of

the document and make any consequential directions necessary for the fair conduct of

the trial. As to the meaning of the word “about” in the section, see R v Lee.34

Rule 16

16. It is permissible however to place the inadmissible prior statement of the witness

in the hands of the witness and to ask the witness to read it to himself or herself

and then ask whether the witness adheres to his or her present testimony, i.e. the

testimony given in the proceedings.

33

(1921) 21 Cr.App.R.178 34

(2002) 54 NSWLR 475

11


Commentary

See Alister v The Queen35

, R v Orton36

, R v Sehan Yousry37

and R v Trotter38

and R v

Bedington39

.

Thus in R v Cooper 40

where letters written by the wife of an accused and signed in

his and her names were found by customs officers in the premises where the accused

and his wife lived, the accused who gave evidence at his trial, denied that he was

expecting a consignment of cannabis and said that he was unaware of the letters and

of the incriminating statements concerning the future importation of cannabis,

contained in the letters. Copies of the two letters were given to the jury and the trial

judge directed the jury that unless they were satisfied that the accused knew of the

contents they should be put out of mind.

In what is again a tacit acceptance of the procedure set out in R v Orton41

the English

Court of Appeal referred to Gillespie v Simpson42

and the observations in that case by

Wynn LJ upon the proper procedure to be followed in these terms:

“As it seems to this Court, if a document is produced to a witness and the

witness is asked: “Do you see what that document purports to record?” the

witness may say: “I see it, I accept it as true,” in which case the contents of

the document become evidence against him: or he may say: “I see what is

there written, I do not accept that as true,” whereupon that which is purported

to be recorded in the document is not evidence against that person who has

rejected the contents; it becomes what one might call non-evidence, the

document itself being nothing but hearsay.”43

Rule 17

17. It is essential however to bear in mind that in those circumstances the cross

examiner is bound by the witness’s answer whatever it may be. That is to say

that the cross-examiner is not entitled to call evidence to rebut the truth of the

answer.

Commentary

This is an application of the rule as to the finality of answers to collateral questions.

35

(1984) 154 CLR 404 AT 442-443 36

(1922) VLR 469 at 470 37

(1916) 11 Cr.App.R.13 at 18 38

(1982) 7 Aug.Cr.R.8 at p.22 39

(1970) Qd.R.353 40

(1985) Cr.App.R.74 41

Supra 42

(1967) 51 Cr.App.R. 172 43

Gillespie and Simpson (1967) 51 Cr.App.R. 172 at p177 per Winn LJ and quoted with approval in Warwick

John Cooper (1985) Cr.App.R. 74 at 78

12


Rule 18

18. The debate at common law about whether a witness who is a party can be cross

examined as to the contents of an unproduced document is now resolved by the

terms of the Act. If the document is that of the witness then s.43 applies and the

witness may be cross-examined in that very limited way.

Rule 19

19. If the unproduced document is that of another person then s.44 applies and

unless the requirements of s.44(2) are satisfied, that is evidence of the

representation must have either been admitted or the court must be satisfied that

it will be admitted, that is an end of the matter because the procedure in s.44(3)

requires that the document must be produced to the witness and that the cross

examiner is not to identify the document or disclose any of its contents.

Commentary to Rules 18 and 19

At common law there was a debate about whether a witness who is a party can be

cross-examined as to the contents of an unproduced document, the contents of which

are within the witness‟s personal knowledge. See Glass‟s Seminars on Evidence44

and

McHugh Cross Examination on Documents45

. Alchin v Commissioner for Railways46

supports the proposition however there is express authority to the contrary. See Darby

v Ousley47

. As is pointed out in the article in 1 Aust. Bar Review, page 56, without

objection parties are frequently asked to make admissions concerning the contents of

documents whether or not they were in fact made by that person for example, minutes

of meetings provided the contents are within the personal knowledge of the party.

Rule 20

20. A witness cannot be asked in cross-examination even for the purposes of

discrediting him or her, questions as to the contents of a document which is

neither produced or accounted for.

Commentary

In Macdonnel v Evans48

a witness was asked in cross-examination when a letter in his

own handwriting was shown to him, - “Did you not write that letter in answer to a

letter charging you with forgery?”. The decision of the Lord Chief Justice Jervis, was

that the question was inadmissible as an attempt to get in the contents of a document

without producing the document itself. Upon argument of a rule nisi for a new trial

the Court of Common Bench upheld the decision of the Lord Chief Justice.

44

At p.90 and following and at pp.110-111. 45

1 Aust. Bar Review at pp.57-58. 46

(1935) 35 SR (NSW) 498 at 508-509. 47

(1856) 1 Hurl & No.1: 156 ER at 1093. 48

(1852) 11 C.B. 929, 138 ER 742

13


That was the position at common law. Today, such a question would offend s.44 of

the Act because the cross-examiner would be attempting to “… question a witness

about a previous representation made by a person”49

other than the witness when

evidence of the representation (the other letter) had not been admitted and the Court

would not be satisfied, because of its unavailability, that it would be admitted.

Rule 21

21. In certain circumstances counsel may be given leave to cross examine his or her

own witness by means of leading questions in conformity with the terms of a

witness statement earlier made by the witness in the course of the preparation

for the trial. Such leave may be limited to cross examination as to the facts

recorded in the statement in writing without any corresponding leave to cross

examine the witness generally.

Commentary

This may be considered to be an exceptional approach however it is based upon a

procedure adopted by Sir Owen Dixon when sitting as single judge of the Supreme

Court of Victoria in R v Neal, Regos and Morgan50

. This procedure was discussed by

the Victorian Full Court in R v Thynne51

. It must be remembered that s.37 of the Act

in terms gives the court power to grant leave to put leading questions to a witness in

examination in chief. This provision is rarely if ever used although it is suggested that

it has the potential to be relied upon instead of the procedure adopted by Sir Owen

Dixon on R v Neal, Regos and Morgan (supra).

Rule 22

22. Section 38 of the Act enables a party who called a witness to question the witness

as though the party were cross examining the witness about evidence given by

the witness that is unfavourable to the party or 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 his or her evidence in chief, making a genuine

attempt to give evidence whether or not the witness has at any time made a prior

inconsistent statement.

Commentary

Section 38 of the Act could now be relied upon in lieu of the procedure adopted by Sir

Owen Dixon in R v Neal (supra).

PREVIOUS REPRESENTATIONS IN DOCUMENTS MADE BY A PERSON OTHER THAN

THE WITNESS UNDER CROSS EXAMINATION

49

(1852) 11 C.B. 929 (Vol 138) 50

(17 April, 1947) reported only in 1947 ALR 616 51

(1977) VR 98.

14


Rule 23

23. If the cross examination is concerned with a previous representation in a

document made by a person other than the witness, then s.44 of the Act codifies

the position.52

In particular either one or other of only two courses may be

followed. If the document is in evidence or the court is satisfied that it will be

admitted into evidence then the witness can be cross examined about a previous

representation alleged to have been made by a third party.

Commentary

In John Morris Cross53

the Group Managing Director of a company had been

charged with insider trading in the company‟s shares. The trial judge had permitted

the appellant to be cross-examined about a document which he had not seen and

which related to a telephone conversation between him and a member of the Institute

of the Directors, despite the fact that the appellant had not agreed that the contents of

the document were true and the author the document was not called as a witness.

Upon the defendant‟s appeal against his conviction and allowing the appeal it was

held that the proper course in relation to this disputed document was for the judge to

send out the jury, for the appellant to be permitted to read the document and indicate

whether or not the contents were true and only if he agreed that they were true could

he be cross-examined upon the document. The perceived vice in the approach

sanctioned by the trial judge was considered to be that the effect of that kind of cross

examination was to enable the prosecution to attempt to persuade the jury that a

statement had been made contradicting the appellant‟s account without calling the

author of the document as a witness. The conviction was set aside.

52

S.44 provides:

Previous representations of other persons (1) Except as provided by this section, a cross-examiner must not question a witness about a previous

representation alleged to have been made by a person other than the witness.

(2) A cross-examiner may question a witness about the representation and its contents if:

(a) evidence of the representation has been admitted; or

(b) the court is satisfied that it will be admitted.

(3) If subsection (2) does not apply and the representation is contained in a document, the document

may only be used to question a witness as follows:

(a) the document must be produced to the witness;

(b) if the document is a tape recording, or any other kind of document from which sounds are

reproduced--the witness must be provided with the means (for example, headphones) to listen to the

contents of the document without other persons present at the cross-examination hearing those

contents;

(c) the witness must be asked whether, having examined (or heard) the contents of the document, the

witness stands by the evidence that he or she has given;

(d) neither the cross-examiner nor the witness is to identify the document or disclose any of its

contents.

(4) A document that is so used may be marked for identification.

53

(1990) 91 Cr.App.Rep. 115

15


Cases such as Cooper (supra) and Cross (supra) and others show that the courts

should be astute to prevent improper practice involving the use of inadmissible

documents particularly when the way in which the rules are formulated puts a

premium upon the knowledge by lay people of the complex rules the subject of this

paper.54

Had the documents in John Morris Cross (supra) been earlier admitted into evidence

then different considerations would apply. In that event the cross-examination would

have been permitted subject to it meeting the test of relevance in Section 55 of the

Act. Counsel should be astute to ensure that Section 44 is not abused and that non-

relevant cross-examination of a witness upon documents made by third parties should

not range beyond the boundary of relevance.

Rule 24

24. If the document is not in evidence and will not be admitted into evidence then the

procedure in s.44(2) must be followed and the following steps taken:

The document must be produced to the witness.

The witness must be asked whether having examined the contents of the

document the witness stands by the evidence that he or she has given.

Neither the cross examiner nor the witness is to identify the document or

disclose any of its contents.

Commentary

Section 44 of the Act was examined in some detailed by Austin J in an interlocutory

judgment in ASIC v Rich (2006) NSWSC 643. Counsel for ASIC had proposed a

procedure by which ASIC would identify a particular part or parts of Mr. Rich‟s

evidence that was to be the subject of further questions and provide a copy of

documents not currently in evidence and which ASIC did not propose to tender to

counsel for Mr. Rich but not to the court and then show the documents to Mr. Rich

giving him time to examine their contents after which time counsel for ASIC would

ask Mr. Rich whether having examined the contents of the document he stands by the

evidence that he has given. The procedure involved taking care not to identify the

documents or to disclose their contents and was referred to as the “R v Orton

procedure”.

After giving notice of the intended procedure ASIC was met by an application by Mr.

Rich based upon s.26 of the Act for directions that ASIC refrain from implementing

the R v Orton proposal. The trial judge gave a direction to ASIC not to make use of

any of the documents covered by sections 19 and 597 of the Corporations Act. Save

for that direction the matter was left in abeyance, the judge not being “… satisfied that

the overall application of the principles under consideration to s.43 had been fully

researched …” the matter was then left on the basis that the parties would prepare

54

The Court of Criminal Appeal in John Morris Cross (supra) pointed out that Mr Cross “… had no idea that

the contents of the document he was being cross examined about were not admissible unless he said they were

true.” This is one of a number of forensic exchanges in which knowledge by a witness of the relevant

procedural rules places him at a considerable advantage over the witness who does not possess that knowledge.

16


submissions if ASIC wished to proceed in some other way under s.43. In fact nothing

further was heard of the ASIC approach and the matter was left where it stood at the

time his Honour gave his judgment.

The judge did however refer to questions of unfairness to the witness and laid

particular emphasis upon that feature of the procedure. He referred to “… the element

of surprise that arises in confronting a witness with a document not previously seen by

the witness. Another is that, in the circumstances applying in cross examination, a

document of no inherent credibility might be given an undue aura of authenticity or

weight. That leads to a third problem, namely that the procedure places great pressure

on a witness to make an admission that he is really not bound to make.” (See

paragraph 23 of the judgment).

His Honour referred to a decision of the Western Australian Supreme Court in

Government Employees Superannuation Board v Martin55

in which counsel had

shown a witness an extract from a transcript of evidence given on a previous occasion

by an unidentified person. Although the R v Orton procedure had not been precisely

followed the Court regarded the approach taken as the equivalent in substance to that

procedure. The witness was persuaded to change his testimony by the unidentified

document. Considerations of fairness were again referred to by Mr. Justice Ipp who

said that the basic fairness of the R v Orton procedure is open to question:

“In the present circumstances, the weight to be attributed to Neville‟s reply

when shown the unidentified document is largely dependent on the reliability

of the material he was shown, and in particular whether he was shown his own

evidence or the evidence of some other party, and if the latter, the identity of

the witness concerned. This is all the more so in the light of my perception

that Neville changed his testimony with hesitation and reluctance.

In the result the Judge placed “little confidence” on the reliability of the changed

testimony.

However that may be the fact remains that the provisions of s.44(2) statutorily encase

the R v Orton procedure. Two questions therefore remain for consideration. The first

of those is the matter of weight as was addressed by Mr. Justice Ipp in the Western

Australian decision in Martin (supra). The second is whether or not in appropriate

circumstances s.26 of the Act can trump s.44(2). Section 26 provides as follows:

“The Court may make such orders as it considers just in relation to:

(a) the way in which witnesses are to be questioned; and

(b) the production and use of documents and things in connection with the

questioning of witnesses; and

(c) the order in which parties may question a witness; and

(d) the presence and behaviour of any person in connection with the

questioning of witnesses.”

55

(1997) 19 WAR 224

17


The matter is not entirely clear although it is suggested that s.44 is clearly a more

specific provision than the general nature of the power conferred by s.26.

It is helpful to recognise that s.44 is conditioned upon evidence of the third party

representation either having been admitted or the court being satisfied that it will be

admitted. In that respect the section is conformable with the rule in The Queens case.

Section 44(3) prescribes the only way a witness may be questioned in cases where the

evidence of the representation has not been admitted or the court is not satisfied that it

will be admitted, it must be borne in mind that sub-section 2 of permitting the cross

examination of a witness "about" the representation of another does not prescribe the

manner in which that cross examination is to be carried out.

The answer to that question is to be found in the application of other rules. It can

immediately be appreciated that in some cases the cross examination of a witness

upon a representation made by another which has been admitted into evidence,

thereby satisfying the requirements of s.44(2), will not be of much if any benefit. It

will rapidly become clear to the court whether or not such a cross examination is

likely to be bear fruit. For example, if the document in evidence happens to be a set of

minutes of a meeting at which the witness was present then the evidence of the

witness in connection with those minutes, provided the test of relevance in s.55 is

otherwise met, may well be of value. On the other hand as the connection between the

witness under cross examination and the representation made by the third party

begins to recede, there is an increased likelihood that the witness‟ reactions to or

impressions of that evidence may be valueless. But that is not say that a witness'

reaction to or impression of a document in evidence with which he has little

connection is necessarily irrelevant. For example it may be a legitimate exercise in

cross examination to test the expression of opinion of one witness by seeking to elicit

the evidence of another's opinion upon the same subject. The measuring stick will

always be whether or not the evidence could rationally affect, directly at indirectly,

the assessment of the probability of the existence of a fact in issue in the proceeding.

See s.55 of the Act. Circumstances can readily be envisaged in which a letter written

by a person other than the witness under cross-examination has been admitted into

evidence. It may be that the receipt of that letter by the witness under cross

examination might sensible to thought to have called for comment by the witness or

on the other hand the communication of the information contained in the letter to the

witness under cross examination, may have a direct bearing upon the witnesses'

knowledge, again assuming that the subject matter of such inquiries meets the test of

relevance encoded in s55 of the Act.

Section 44 of the Act overcomes the effect of the decision in for example North

Australian Territory Company v Goldsborough Mort & Company56

where it is said

that a cross examination of a witness as to what was said by some other person in a

document which is not that of the witness ought never to have put. Section 44(3) is

the statutory embodiment of the procedure outlined in R v Orton but it must be

remembered that in contradistinction to s.44(3) the earlier sub-section s.44(2) departs

from the common law and permits cross examination of a witness about a

representation in a document made by another person.

56

(1893) 2 Ch. 381 at 385

18


It is suggested that 5.44(2) is supported by sound reasons in principle. As cases like R

v Banks57

make clear:

“There is another objection of a more formidable character, namely, that the

contents of the correspondence between the appellant and the woman Smith,

were elicited from him. It undoubtedly is open to considerable question

whether that cross examination was strictly regular. The court thinks that it

was not regular to insist that the appellant should give an answer concerning

the contents of a letter which was not produced.”58

See also R v Thompson 59

a witness cannot be cross examined on an inadmissible

statement made by a third party. That “formidable” objection does not apply to those

documents which are embraced by s.44(2) because such documents are already in

evidence.

R v Morgan60

, a decision of the New South Wales Court of Criminal Appeal in a jury

case, is an example of a form of cross examination which offended s.44 of the Act and

which was objectionable in any event. In that case, issues of identification of the

appellant were fought out through photographs of a robbery of the bank branch being

carried out by two persons both of whom were shown on the security camera within

the bank. A number of police officers gave evidence of seeing those photographs and

of identifying the appellant Morgan from them.

The appellant did not give evidence but an expert in the field of photogrammetry, the

science of taking measurements from photographs, was called on his behalf. The

expert‟s evidence was that if his calculations of the offender‟s height were correct

then the offender was not the appellant.

In cross examination, the expert, a Mr. Donnelly, was asked whether he was aware of

another case in which another expert specialist expert in computer imaging had been

involved in estimating heights from a video recording in order to support he

suggestions that that other expert had come to a conclusion different from that

reached by Mr. Donnelly. The Crown Prosecutor asked:

“If I can hand you a report from (the expert in the other case). If I can get you

to look at the summary section?” An objection was then taken. The Crown

Prosecutor in answer to the objection informed the court that his avowed

purpose in cross examination to establish that the appellant‟s expert was

engaged in an “inexact science” and that experts differed in their results.

The Court of Criminal Appeal concluded that the Crown Prosecutor‟s aim was

legitimate (even though there had been no evidence called in the Crown‟s case in

chief). Nevertheless, the court concluded that the form of the cross examination

offended s.44 of the Act and was objectionable for the resaons pointed out by the

High Court in Alister v R61

.

57

(1916) 12 CAR 74 58

Per Avery J at page 75 of the Report 59

(1912) 3 KB 19 60

(2000) NSWCCA 7 61

(1983-83) 154 CLR 406 at 464

19


The trial judge indicated that he would allow further questions and when cross

examination resumed Mr. Donnelly was taken to the report of the other expert which

was again described in front of the jury and he was taken to the response to that

report. Mr. Connelly agreed that the other expert had reached a different conclusion

in that case from Mr. Donnelly and his co-author.

The Court of Criminal Appeal concluded that adherence to the requirements of s.44

proscribed the identification of Dr. Lowe's report and its contents and that the jury

should not have been informed of the other experts conclusions, their authorship and

by implication the authority behind them.

The Court said that:

"The jury's knowledge of these matters, obtained by the questioning in breach

of s.44, might well have led them to place less, and considerably less, weight

on the principal evidence which Mr. Donnelly was called to give. Thus the

Crown derived a significant advantage in consequence of the breach of s.44.62

In Aslett v Regina63

the New South Wales Court of Criminal Appeal said that:

"Section 43(2) is not intended to cover every instance of reliance on a prior

inconsistent statement of a witness or to deal in general terms with its

admissibility. The purpose of the section is to ensure that if a party intends to

adduce evidence of a prior inconsistent statement "otherwise than from the

witness" that the witness refuses to acknowledge, that party may only do so

after drawing to the witnesses attention the circumstances of the statement so

that the witness can identify it and the inconsistency the cross examiner is

asserting. The purpose is to ensure that such a witness has a proper

opportunity to consider precisely what he or she is asserted to have said and

precisely how that is asserted to be inconsistent with what the witness now

says. Sub·section 2 is in its terms limited to the things that must happen when

a witness does not admit having made an inconsistent statement. It says

nothing about what mayor must or must not happen in other circumstances, for

example, where the witness admits having made a prior inconsistent

statement." (at paragraph 75 of the judgment)

"Sub-section 2 draws on pre Evidence Act 1995 law about the use of prior

inconsistent statements. Before the commencement of the present Evidence

Act such statements, when admissible, were relevant only to the credit of the

witness who made them. If their making was admitted, therefore, there was no

purpose in tendering them: Alchin v Commissioner for Railways (1935) 35 SR

(NSW) 498. Under the modem law. on the other hand, there is a purpose in

tendering such statements beyond any attack on credibility, namely proof of

the fact asserted: 5.60. Nothing in s,43 is directed to the admissibility of any

prior inconsistent statement to prove the truth of its assertions. All sub-section

2 does is ensure that a witness who is about to be attacked on credit is fairly

62

See paragraph 59 of the judgment 63

(2006) NSWCCA 49

20


dealt with. Nothing in 5.43 purports to limit the effect of sections 38. 103 or

60."

The court rejected the appellant's submission that evidence of a witness‟ prior

inconsistent statement became admissible only if the witness did not admit making

them.

The decisions of the High Court in Nicholls v The Queen and Coates v The Queen 64

are clear examples of the consequences of the cross examiner's failure to comply

with the statutory equivalent of the statutory requirements now embodied in s.43(2)(a)

and (b).

In that case, a Western Australian appeal, the High Court was required to consider the

terms of s.21 of the Western Australian Evidence Act, (the equivalent of the former

section 55 in New South Wales and the current s.43 in New South Wales.) (The rule

in the Queen's case is described in Nicholls and Coates as the "seminal case on proof

of inconsistent statements') (see paragraph 87). In that case the High Court said that:

"Fairness requires that a person who makes such an imputation ~'imputing

bias or corruption to a witness" should put the matters giving rise to it in

sufficient detail to the witness so that the witness understands the allegations

and those matters and has an opportunity to deny or explain them." (see

paragraph 88, see also paragraphs 188 and 189)

At the trial counsel for Nicholls put to a witness for the crown in cross examination:

"Did you at any time - do you recall a conversation that went along the lines of

this: that you had told somebody the story you had given to the police about

Marty Coates and Thomas Nicholls being present in the room in which Clare

Garabedian was killed was all b ... s .... ? --- No.

Do you recall saying in a conversation that is was also b ... s ... that Marty

Coates had gone to Northbridge to point Clare Garabedian out to you? --~ No,

I never said that.

Did you in conversation say that the police had told you what to say in order to

implicate others? --- No.

Did you say in a conversation that you had given Clare Garabedian two shots

and that Marty Coates knew nothing about it? --- No.

Did you say in a conversation that the police had offered you a deal if you

cooperated and implicated Marty Coates and others in the murder? --- No."

(see paragraph 130 of the judgment)

In the judgment of Gummow and Callinan JJ it was pointed out that:

64

(2005) HCA

21


"It can be seen from it that the cross examiner made no attempt to identify

Ross, or the date, place, or occasion of the alleged statements although the

substance of them was put clearly enough," (see paragraph 167 of the

judgment)

Their Honours went on to say;

"As Hayne and Heydon JJ have demonstrated, both the common law and

many enactments dealing with the proof of the making of prior inconsistent

statements to damage the credit of a witness, insist upon observance of such a

precondition." ("that is it is a "... precondition of the admission of that

evidence, that the accused or his counsel has put. with particularity, the time,

place and other relevant circumstances of the making of the statements

revealing the corrupt intention."

On the hearing of the appeal the appellants conceded that the trial judge had been

correct in rejecting this evidence because it failed to comply with the requirements of

s.21 of the Western Australian Evidence Act there being no identification of place,

time or speaker nor any precise identification of what Davis allegedly said.

In order to overcome this difficulty the appellants had argued that they were not

relying on the prior inconsistent statement exception to the rule that Davis' answers to

questions on collateral matters were final but on the bias exception to the rule about

the finality to answers on collateral ma~ Thus it was said that the appellants only had

to comply with the rule in Brown v Dunne 65

and that had been accomplished by the

questions put to Davis during cross examination. The High Court assumed for the

purposes of the argument and without deciding that the rule in Brown v Dunne had

been complied with and then went on to analyse the rule in the Queen‟s case.

Abbott CJ in the Queen's case giving the unanimous answers of the judge had said;

"The legitimate object of the proposed proof is to discredit the witness. Now

the usual practice of the courts below, and a practice, to which we are not

aware of any exception, is this; if it be intended to bring the credit of a witness

into question by proof of anything that he may have said or declared, touching

the cause, the witness is first asked, upon cross examination, whether or not he

has said or declared, that which is intended to be proved. If the witness admits

the words or declarations imputed to him, the proof on the other side becomes

unnecessary; and the witness has an opportunity of giving such reason,

explanation, or exculpation of his conduct, if any there may be, as the

particular circumstances of the transaction may happen to furnish; and thus the

whole matter is brought before the court at once, which, in our opinion, is the

most convenient course. If the witness denies the words or declaration imputed

to him, the adverse party has an opportunity, afterwards, of contending, that

the matter of the speech or declaration is such, that he is not to be bound by

the answer of the witness, but may contradict and falsify it; and, if it be found

to be such, his proof in contradiction will be received at the proper season."

(Quoted with approval by Hayne and Heydon JJ at paragraph 275)

65

[INSERT]

22


Rule 25

25. If a document which is put into the hands of the witness by the cross examiner is

a privileged document and the cross examiner asks questions of the witness

about such document, then the action of the cross examiner in doing so will

amount to waiver of any privilege attaching to the document. This will be so not

only as regards those parts of the document upon which the cross examination

has been based but also as to the whole document.

Commentary

Rule 26

26. Where the inconsistent statement upon which the cross examination is based is

part only of the document then the cross examiner can only be obliged to tender

that part of the document which the cross examination was based.

Commentary

Rule 27

27. However counsel who called the witness to give evidence in chief is entitled to

tender other parts of the document which are so connected to the parts cross

examined upon that they are necessary to explain that part of the document.

Commentary

Rule 28

28. Where the cross examiner merely produces any document to a witness, that is to

say either shows the document to the witness or places that document in the

witness’s hands, the cross examiner is not as a consequence thereof, obliged to

and cannot be forced to tender the document.

Commentary

But what occurs if the cross-examiner does more than place the document containing

the previous inconsistent statement in the hands of the witness?

23


Section 45 of the Act demands consideration of s.55 of the New South Wales

Evidence Act and of the New South Wales decision in R v Jack66

. That case or rather

the head note to the report of that case has been a source of concern to New South

Wales practitioners ever since the case was first reported. The head note has been

frequently relied upon to force counsel who places in the hands of a witness the

document upon which he or she is cross-examining, to undertake to tender the

document. It is another example of the tender trap. The head note to the case reads:

“If counsel in cross-examination puts the witness‟ deposition, taken at the police

court, into his hands, and asks him whether, after looking at it, he adheres to his

former statement, the depositions must be put in evidence, even though the object

of counsel be merely to refresh the memory of the witness.”

The facts in the case were that counsel for the accused on trial for his life in a murder

case was in the act of placing in the hands of the witness for the Crown, the witness‟s

original deposition, having called on the Crown for it, saying “Look at your

deposition, and say whether you adhere to what you have said. Is not the word „stab‟

in your depositions?” It seems that the witness had previously said the word „stab‟

was not used in the depositions.

Mr Justice Windeyer giving the judgment of the court said:

“When counsel did this he was clearly making use of the depositions in a way

which was calculated to create the impression in the minds of the jury that the

witness, in giving his evidence at the police court, had made use of the word

„stab‟. His Honour was, therefore entirely correct in the course he took, and

acted on the law laid down in R v Ridout67

and in cases in England decided

before that case. The law laid down and established in that case was, that if

cross-examination counsel makes use of a position in this way by putting it

into the witness‟ hands, he must put in in evidence, even though he ostensibly

makes use of the deposition for the purpose of refreshing the witness‟

memory. The reason of the rule is that if the putting in of the deposition were

not insisted upon, a false impression might be conveyed to the jury that the

witness had sworn something different at the police court from the evidence

that he was then giving in court, whereas the deposition and evidence might be

exactly the same. It is said, however, that this should be allowed if it is the

bona fide intention of counsel to refresh the memory of the witness. Such

might be the intention of counsel, but with what object? The object of so

refreshing the witness‟ memory was not to establish him as a witness who is to

depended upon, but, if possible, to show that he was not, because he gave one

account of the transaction at the trial, and another before the Police Board.

The object was to show that he had given a different if not a contradictory

account of the transaction, and thus destroyed the value of his evidence.

Therefore it has been laid down that if an attempt is made to use depositions in

this way, or part of them, the whole depositions must be put in. The law on

this point is thus stated in R v Ridout68

:

66

(1894) 15 LR (NSW) 196 67

SMH 3rd

May 1854 68

supra

24


„A party may refresh the memory of his own witness by his own

deposition, because it is fair that he should be allowed to correct an

innocent mistake...But it would be unjust that a cross-examining

counsel should put the depositions into the witness‟ hands and then ask

him if he adhered to his statement without putting the deposition in

evidence before the jury, because he might insinuate by his manner of

cross-examination that the statement was different from the deposition,

without letting the jury see, by inspection of the document, that the

testimony of the witness on one occasion was inconsistent with his

evidence on the other.‟”

M. H. McHugh QC as he then was suggested that Jack‟s case was wrongly decided as

the effect of it was to completely deny the effect of s.55 of the former New South

Wales Evidence Act 1898. See Australian Bar Review69

. To the same effect is an

article written by D. K. Malcolm QC as he then was, published in Australian Bar

Review70

. Then there is the dictum of Samuels JA in Madison v Goldrick71

expressly

doubting the correctness of the decision.

In his article in the Australian Bar Review Mr McHugh QC suggests that Jack‟s case

was decided on a much wider ground than was necessary. That wider ground referred

to in Mr McHugh‟s interesting remark may have been either that the court could have

disposed of the case by justifying the tender of the document on the basis that cross-

examining counsel had called for the document from the possession of the other side

and was therefore subject to the other side requiring the tender of the document or

alternatively the narrow ground may have been that the error made by counsel was to

specifically identify the document in the presence of the jury.

Two important questions then arise for decision. Firstly, does s.45(5) of the Act alter

the position? Secondly, what is the proper course to be taken by counsel in similar

circumstances?

Rule 29

29. But if the cross examiner does more than place the document containing the

previous inconsistent statements in the hands of the witness he may, depending

upon the steps in fact taken be obliged to tender the document.

Commentary

69

Vol.1 No.1, p.54 70

Vol.2 No.3 at p.271 71

(1976) 1 NSWLR 651 at 660

25


Rule 30

30. The head note in the much discussed decision in R v Jack

72 suggests that merely

to place the witness’s deposition into the hands of the witness and to ask the

witness whether or he or she after looking at it adheres to his former statement,

therefore obliges the cross examiner to put the document into evidence is an

incorrect statement of the law.

Commentary

Jack‟s case can only be properly understood by bearing in mind that counsel for the

accused in that case took the following steps:

He called for the documents (presumably by accurately describing them) from

the possession of the prosecutor.

He placed the documents in the hands of the witness being cross examined.

He specifically identified the documents in the course of his questions

addressed to the witness.

He asked a specific question about a word said to appear in the depositions.

All of those actions and statements were in the presence and hearing of the

jury.

Rule 31

31. Now, s.45(5) of the Act removes the justification if it ever properly existed, for

citing Jack’s case as authority for the proposition appearing in the head note.

Commentary

Jack‟s case (supra) is an example of erroneous head-note law but its effect continues

to this day.

Rule 32

32. However s.45(5) of the Act does not remove the danger that by ill chosen words

the cross examiner might allow into evidence, documents such as the depositions

of a committal hearing, which almost certainly would be highly damaging to his

or her client’s case and which would not otherwise be admissible.

Commentary

72

(1894) 15 LR (NSW) 196

26


Rule 33

33. The course counsel should follow in order to avoid the tender trap is to say:

“I would like to show you a document. I would like you to read the

document to yourself and when you have finished doing so I will ask you a

question.”

After the witness has silently read the document counsel should then ask:

“Having looked at the document, do you still adhere to your previous

evidence?”

Commentary

See s.44(3)(c) and (d). That section may correctly be regarded as the statutory

embodiment of R v Orton (supra). See also Birchnall v Bullough73

, R v Sehan

Yousry74

, R v Gillespie75

and R v Beddington76

.

Prior to the introduction of the Act in New South Wales in 1995 the R v Orton (supra)

principle as a rule of practice in New South Wales had been called into question in the

decision of the Court of Criminal Appeal in R v Hawes77

. In that case the court

referred to what “once used to be a common practice – at least in jury trials – for such

a course to be followed in cross-examination and without objection.” But Mr Justice

Hunt, the Chief Judge of the Common Law Division said that he was “never satisfied

as to its validity.” He saw the practice as conveying “the clearest implication in the

question whether, having read it, the witness still adheres to his testimony...that the

document asserts to the contrary of that testimony. As such, it is in clear conflict with

the basic rule of evidence that, subject to the provisions of s.55 of the Evidence Act

[1898] (which applies only where the witness is the author of the document in

question), the contents of a document cannot be proved in this way.” See the

judgment at p.13.

Whilst the matter may not earlier have been free from doubt, since the introduction of

the Evidence Act 1995(NSW), clearly the proper course to be followed is to continue

to apply the practice as originally suggested by the Victorian case of Orton78

which is

now statutorily embodied in s.44(3).

In the CPD series of lectures conducted by the Bar Association of Queensland in 2006

Graham Gibson QC and Declan Kelly severely criticised the rule in R v Beddington

(1970) Qd R 353. In that case the accused had been cross examined at the trial

concerning his knowledge of events after the robbery for which he had been charged.

73

(1896) 1 QB 325 at 326 74

supra 75

(1967) 51 CAR 172 at 177 76

supra 77

(7 November 1994) 78

supra

27


The prosecutor showed the accused two newspaper articles and questioned the

accused about the contents of the articles. One of the articles was later tendered. On

appeal the court said:

“The use made of the newspapers … was quite wrong. The limited use which

can be made in cross examination of documents of this kind is or should be

well known. A document made by a person other than the witness, and not

being a document which can be used to refresh memory, may, even if

inadmissible in evidence, be put into a witness‟ hands and that witness may be

asked whether, having looked at the document, he adheres to his previous

testimony. But this is the extent to which the cross-examiner may go; he may

not suggest anything which might indicate the nature of the contents of the

document.”

In Alister v The Queen (1984) 154 CLR 404 at 442-445 the approach in Beddington

was confirmed by Wilson and Dawson JJ who said that:

“Insofar as the accused was not the author of the document, it was

impermissible to ask questions about its contents without observing the rule in

The Queen‟s case … : see Derby v Ouseley …. Most, if not all, of the

documents of this type upon which the impugned cross examination was based

would appear to have been inadmissible and, insofar as that was so, the proper

course under the rule in The Queen‟s case was to ask the accused to look at the

document without identifying it and to ask whether he adhered to his previous

evidence: R v Orton …: Birchell v Bullock …; R v Seham Usery …. If any of

the documents of which the witness was not the author were admissible they

should have been tendered in evidence under the rule.”

The authors of the Queensland paper then went on to refer to the judgement of Hunt J,

the former Chief Judge of the Common Law Division in R v Hawes (1994) 35

NSWLR which contained a criticism of Beddington (supra), Orton (supra) and Usery

(supra).

However the authors then went on to refer to a judgment of Mr. Justice Chesterman in

the Queensland Supreme Court in Southern Cross Mine Management Pty Limited v

Ensham Resources Pty Limited (2005) QSC 233 in which the judge described the rule

recognised in Beddington (supra) as having “only antiquity to commend it”. His

Honour reasoned that “the use of a statement by another witness in the manner

described in Beddington is an improper mode of cross examination. The rule, if it is

allowed to survive, must be limited to documents not of that kind”.

The authors then went on to refer to the reliance by Chesterman J upon what his

Honour described as “a second line of authority which is also relevant to the topic”

and referred to R v Foley (2000) 1 QdR 290 at 297 where the Queensland Court of

Appeal said:

“The resort by counsel to questions which invite a witness to answer by

reference to comment on the truthfulness of other witnesses is to be

deprecated. On a level of professional practice, it is regarded as “not a proper

question”. The error, however, goes beyond one of professional practice; such

28


questions are actually inadmissible. The literal object of such a question is to

obtain an opinion whether someone else is a liar, and that of course is not an

issue in the case or a matter for any other witness to express and opinion, it is

a matter for the judge or jury. It is also unfair, because it forces the honest

witness into a recrimination and seeks to rely upon the natural reluctance of a

person to defame another. It is also a form of bullying, using unfair means to

persuade a person to retract his or her evidence. Such evidence is inadmissible

and we agree … that they are improper.”

In North Australian Territory Company v Goldsborough Mort & Company (1893) 2

Ch 381, Lord Escher with whom Lindley and Bowen LLJ agreed held that a witness

could not be shown the depositions of another witness and asked to give evidence

contradicting that witness. The prohibition extended to showing the witness those

depositions and asking him by reference to them to change his own testimony. Lord

Escher said (at page 385):

“But in the present case the witness when examined … was also asked

questions as to what other people had said in the previous examination …; that

is, he was told what they had said, he was asked whether he contradicted their

evidence. Such questions ought never to have been put …”.

It is respectfully suggested that the authors of the Queensland paper have confused

two quite separate circumstances. The so-called rule drawn from Beddington (supra)

and firmly anchored by the procedure in R v Orton (supra) was quite distinct from the

vice referred to in the two Queensland decisions which undoubtedly stated the correct

rule concerning the prohibition upon inviting comment by one witness upon the

question whether another witness is telling lies or has invented something. See also R

v Leak (1969) SASR 172 at 173-174.

Rule 34

34. Section 45 of the Act applies both to the position where the witness himself or

herself is being cross examined about a prior inconsistent statement recorded in

a document and where a previous representation made by another person has

been recorded in a document.

Commentary

This follows from the terms of s.45 itself.79

79

Section 45 provides:

Production of documents

29


Rule 35

35. Although s.45(3) of the Act gives the Court power to “give directions as to (the)

use” of the document about which the witness has been cross examined, it is

suggested that in the case of a third party prior representation the code in s.44

applies. Accordingly, where the evidence of the representation has not been

admitted and the court is not satisfied that it would be admitted, then the

mandatory procedure set out in s.44(3) must be followed and the witness “…

must be asked whether, having examined … the contents of the document, the

witness stands by the evidence that he or she has given …” and neither the cross

examiner nor the witness is to identify the document or disclose any of its

contents”.

Commentary

Rule 36

36. A party is not to be required to tender a document only because the party,

whether under this Act or otherwise has called for the document to be produced

to the party or inspected it when it was so produced and the party who produces

a document so called for is not entitled to tender it only because the party to

whom it was produced or who inspected it failed to tender it.

(1) This section applies if a party is cross-examining or has cross-examined a witness about:

(a) a prior inconsistent statement alleged to have been made by the witness that is recorded in a

document; or

(b) a previous representation alleged to have been made by another person that is recorded in a

document.

(2) If the court so orders or if another party so requires, the party must produce:

(a) the document; or

(b) such evidence of the contents of the document as is available to the party;

to the court or to that other party.

(3) The court may:

(a) examine a document or evidence that has been so produced; and

(b) give directions as to its use; and

(c) admit it even if it has not been tendered by a party.

(4) Subsection (3) does not permit the court to admit a document or evidence that is not admissible

because of Chapter 3.

(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.

30


Commentary

In Walker v Walker80

Mrs Walker had commenced proceedings against her husband

for a maintenance order. In her evidence in chief she said that her husband was an

accountant and was in receipt of a certain salary. In cross-examination she was asked

how she knew about this income and she referred to a letter received by her father

from a person who had been making inquiries about Mr Walker and his financial

circumstances in New Guinea. The solicitor who had been cross-examining Mrs

Walker said “I call for that letter.” However over objection the letter was then

admitted into evidence. The effect of the letter was that inquiries made by the author

had shown that Mr Walker was earning the sum of money testified to by Mrs Walker.

The case ultimately found its way to the High Court of Australia. The High Court

held that the solicitor for Mr Walker had been correctly compelled on the application

of Mrs Walker‟s counsel to put the letter in evidence as part of Mr Walker‟s case.

Dixon J as he then was quoted from the judgment of Lord Ellenborough in Wharam v

Routledge81

:

“You cannot ask for a book of the opposite party, and be determined upon the

inspection of it, whether you will use it or not. If you call for it, you make it

evidence for the other side, if they think fit to use it.”

Two important aspects of the judgments in Walker v Walker82

(supra) are of equal

importance. Firstly, by calling for the letter and reading it Mr Walker‟s solicitor

placed himself in a position whereby he could not decline to tender the letter if his

opponent compelled him to do so. Secondly, even though the letter was the clearest

form of hearsay evidence, once it had been admitted into evidence it was received as

evidence of the truth of the facts stated in it.

There has been some doubt expressed as to whether Walker v Walker (supra) applies

in criminal cases, but on principle there is no reason why it should not. Stroud v

Stroud83

, although in R v Weatherstone84

Smithers J rules that it did not apply where

the accused called for the deposition of a crown witness taken at the committal

proceedings.

It also seems clear that Walker v Walker (supra) did not apply where a witness called

by the party producing the document has refreshed his or her memory from the

document either before or in the course of giving evidence and even where the

document has not inspired an actual recollection.

Even since criticism of the decision appeared in the New South Wales Law Reform

Commission‟s working paper on the Course of the Trial, published in 1978, Walker v

Walker has been ripe for abolition. The historical origins of the rule are obscure and

probably date back to the time when discovery of documents between the parties was

in its infancy and the adversarial system with all its dangers of ambush was in the

nature of organised sport such that if counsel wished to inspect his opponent‟s

80

supra 81

(1805) 170 ER 797 82

supra 83

(1963) 1 WLR 1080 84

(1968) 12 FLR 14

31


documents he was seen to be assuming whatever risks arose from that course.

Moreover, the rule significantly blurred the distinction between evidence which was

admissible and evidence which was inadmissible. The New South Wales Law

Reform Commission‟s commentary concluded with the remark that “It is difficult to

see that the rule conferred any benefit to the administration of justice.”

The rule was always poorly understood and from time to time practitioners were not

alive to the freedom which was permitted counsel to inspect documents ad hoc during

the course of the trial. For example, in New South Wales an incantation was

developed by resort to which documents are “produced without penalty” or not. The

judgment of Brereton J in R v Skalji85

made it clear that:

“Certainly if a witness uses a document to refresh their memory in the witness

box then that document may be called for and inspected and the party cannot

be compelled to put it into evidence.”

Rule 37

37. The mere inspection of a document does not render it evidence which counsel

inspecting it is bound to put in. The true rule was expressed as follows in Senat v

Senat86

:

“Where a document is used to refresh a witness’ memory, cross-

examining counsel may inspect that document in order to check it,

without making it evidence provided that his or her cross-examination

does not go further than the parts which are used for refreshing the

memory of the witness.”

Commentary

There were doubts about the way in which the rule Walker v Walker applied. For

example, in Victoria if the party producing the document fails to invoke the rule

during cross-examination of the particular witness it has been held that he or she will

not at any later stage be able to require the cross-examiner to tender the document.

See Hatziparadisses v GFC (Manufacturing) Pty Limited87

approved by the Victorian

Court of Criminal Appeal in R v Trotter88

. However the practice in New South Wales

is to allow the party calling the witness to require the cross-examiner to tender the

evidence in writing even after cross-examination has finished and the witness has left

the witness box. See R v Chin89

.

In Queensland McPherson J in R v McGregor90

expressed the view that the decision

in Hatziparadisses (supra) was not entirely consistent with the course adopted by

85

(1972) 2 Petty Sessions Review 1931 86

(1965) P 172 at 177 87

(1978) VR 181 at 183-4 88

(1982) 7 A.Crim.R.8 at p.19 89

59 ALR 1 at pp.16-17 90

(1984) 1 Qd.R.256 at 265

32


Alderson B. In Holland v Reeves91

where it was said that the Judge could not compel

cross-examining counsel to put the writing in until he had opened his case.

Although Walker v Walker (supra) has been referred to many times as a tender trap

for young players and has been the subject of many cautionary tales it is puzzling that

the case has excited that much interest in view of the availability of the simple

procedure in s.12 of the former Evidence Act (NSW) (1898). That section enabled an

oral application to be made to the judge for the production of documents in the

position of any person present in court. In the case of refusal such a person is subject

to the same penalties and liabilities as if he had been duly subpoenaed or summoned

for that purpose. When s.12 is properly employed the document is produced to the

court and the party applying for the order then seeks leave to inspect the document

which remains in possession of the court. In those circumstances no question of any

“penalty” can arise. If that procedure had been followed by the solicitor in Walker v

Walker (supra) the case would not have passed into legal folk lore.

Section 36 of the new Act confers the same powers upon the court as did s.12.

Section 36 enables the Court to order a person who is present at the hearing of a

proceedings to produce documents or things even if a subpoena has not been duly

served on him. Essentially s.36 covers the same ground as s.12.

Section 36 of the new Act clearly removes once and for all the dangers presented to

the unwary by Walker v Walker. A question arises whether it has in any respect

ameliorated similar difficulties to advocates by the decision in R v Jack92

, a case

which as “troubled” practitioners and been the subject of criticism for many years.

THE USE OF PRIOR CONSISTENT STATEMENTS

Rule 38

38. A previous consistent statement is admissible, under the common law, to rebut

the suggestion that the evidence of a witness has been deliberately fabricated

since the relevant events.

Commentary

There are two views in the cases. In Coll (supra at 541) it was said that even in such a

case it does not follow that evidence of a prior consistent statement can be given for

the purpose of sustaining the witness‟s credit and that there must be something either

in the nature of the inconsistent statement or in the use made of it by the cross

examiner to enable such evidence to be given.

The alternative view is to be found in Ahmed v Brumfitt93

where Lord Justice Diplock

said that it was clear law that when a witness in cross examination had put to him a

statement which was said to conflict with what he had said in examination in chief “it

91

173 ER 16 at 18 92

(1894) 15 LR (NSW) 196 93

(1967) 120 Sol Jo 32 (CA)

33


was always admissible to put to him in re-examination an earlier statement consistent

with what he had said in examination in chief as rehabilitating his credit in respect of

the evidence he had given.”

As was said in I v Western Australia (supra) it is the former view which represents the

law in Australia. In Transport & General Insurance Company Limited v

Edmondson94

the majority followed the observations of Dixon CJ in Nominal

Defendant v Clements quoted above. Justices McTiernan, Taylor and Menzies in a

joint judgment said:

“…the judge at the trial must exercise care in assuring himself not only

that the account given by the witness in his testimony is attacked on

the ground of recent invention or reconstruction or that a foundation

for such an attack has been laid by the party but also that the contents

of the statement are in fact to the like effect as his account given in his

evidence and that having regard to the time and circumstances in

which it was made it rationally tends to answer the attack. It is

obvious that it may not be easy sometimes to be sure that counsel is

laying a foundation for impugning the witnesses account of a material

incident or fact as recently invented, devised or reconstructed story.

Counsel himself may proceed with a subtlety which is the outcome of

caution in pursuing what may prove a dangerous course.”

Rule 39

39. A previous consistent statement is admissible under the common law also to

rebut the suggestion that the witness’s evidence has been an innocent response to

another’s suggestion.

Commentary

Rule 40

40. The mere impeachment of a witness’s testimony in cross examination, without

more, does not render evidence of a prior consistent statement admissible.

Commentary

94

(1961) 106 CLR 23 at 28

34


Rule 41

41. Even where a witness has been impeached by the demonstration of a

contradiction or inconsistency between the evidence given at the trial and

something said by the witness on a former occasion it does not follow that

evidence of a prior consistent statement can be given for the purpose of

sustaining the witness’s credit. There must be something more, either in the

nature of the inconsistent statement or in the use made of it by the cross

examiner to enable such evidence to be given.

Commentary

Rule 42

42. Trial judges should “… abstain from too ready an intervention in cutting off

lines of cross examination”. In some cases it is “… impossible to say, in advance

of the cross examination which counsel sought to conduct, that the logical

connection between a fact which might have been elicited and the issue to be

determined was “so slight that the fact is treated as too remote an evidence of it

as inadmissible””: R v Stephenson (1976) VR 376 at 380 Wakeley v R (1990) 93

ALR 79 at page 87 per Curiam.

Commentary

“The limits of cross examination are not susceptible of precise definition, for a

connection between a fact elicited by cross examination and a fact in issue may

appear, if at all, only after other pieces of evidence are forthcoming. Nor is there any

general test of relevant which a trial judge is able to apply in deciding, at the start of a

cross examination, whether a particular questions should be allowed. Some of the

most effective cross examinations have begun by securing a witness‟ assent to a

proposition of seeming irrelevant. Although it is important in the interests of the

administration of justice that cross examination be contained within reasonable limits,

a judge should allow some leeway in cross examination in order that counsel may

perform the duty, where counsel‟s instructions warrant it, of testing the evidence

given by an opposing witness.” Wakeley (supra) per Curiam at page 86.

Other provisions in the Act

Rule 43

43. A broad spectrum of sections in the Act confer wide powers upon the Court in

relation to the questioning of witnesses.

35


Commentary

These include “the way in which witnesses are to be questioned …”, the production

and use of documents and things in connection with the questioning of witnesses and

the presence and behaviour of any person in connection with the questioning of

witnesses (see s.26), party may question a witness in any way the party thinks fit

except as provided by Chapter 1, Division 3 of the Act (s.29).

A witness must not in the course of giving evidence use a document to try to revive

his or her memory about a fact or opinion unless a court gives leave (s.32), the Court

may on the request of a party give such directions as are appropriate to ensure that

specified documents used by a witness otherwise than while giving evidence to try to

revive his or her memory are produced to the other party for the purposes of the

proceeding and the court may refuse to admit the evidence given by the witness so far

as it concerns a fact to which the witness so tried to revive his or her memory if

without reasonable excuse the directions have not been complied with (s.34), 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 misleading or unduly annoying,

harassing, intimidating, offensive, oppressive or repetitive (s.41), a party may put a

leading question to a witness in cross examination unless the court disallows the

question or directs the witness not to answer it (s.42(1)), the court may refuse to admit

evidence if its probative value is substantially outweighed by the danger that the

evidence might be unfairly prejudicial to a party or be misleading or confusing or

cause or result in undue waste of time (s.135) and the court may limit the use to be

made of evidence if there is a danger that a particular use of the evidence might be

unfairly prejudicial to a party or be misleading or confusing (s.136).

Rule 44

44. Recent developments have emphasised the importance of the way in which a

barrister should conduct cross examination consistent with the robust

performance of his or her duties to the client.

Commentary

Attention to this subject was recently stimulated by the decision of the High Court in

Libke v R95

. No doubt influenced at least in part by comments in Libke (supra) the

New South Wales Bar Association‟s amendment to the Bar Rules which introduced a

new r35A has the effect of obliging a barrister not to ask questions or pursue a line of

question in cross examination of a witness if the barrister is of the opinion that the

question or line of questions is misleading or confusing or is unduly annoying,

harassing, intimidating, oppressive, humiliating or repetitive or put to the witness in a

manner or tone that is belittling, insulting or otherwise inappropriate or has no basis

other than stereotype. For example, a stereotype based on the witness‟ sex, race,

culture, ethnicity, age or mental, intellectual or physical disability.

95

HCA 30; (2007) 235 ALR 517 (29 June 2007)

36


Cognate to the proposed amended 435A is s275A of the Criminal Procedure Act 1986

(NSW). This is in very similar terms to the proposed r35A except that of those

matters which a judge must consider gender is not included. The section makes it

mandatory the questions which are misleading, confusing, unduly annoying,

harassing, intimidating, offensive, oppressive, humiliating or repetitive or which are

put in a manner which is belittling, insulting or otherwise inappropriate, be rejected.

B.W. COLLINS QC

19 OCTOBER 2009

THE USE OF DOCUMENTS IN CROSS EXAMINATION

PRACTICAL EXAMPLES

EXAMPLE 1:

1. Natalie Palmer, a witness called by the Crown in a criminal trial asserted that she had

no memory of the events which she had recorded in a police statement within days of

the occurrence of those events. The trial took place less than eight months after those

same events. The witness had also given evidence in the committal proceedings three

months before the trial. The Crown applied for leave to cross examine the witness

pursuant to s.38(1) of the Evidence Act 1995.

2. At the trial the appellant Lozano was convicted on a charge of disposing of certain

electrical goods knowing that they had been stolen and two charges of break, enter

and steal.

3. Evidence given by a co-accused who had pleaded guilty to offences which were

related to those with which the appellant was charged gave evidence that he had

broken into a house with another man, stolen the goods which were the subject of the

first count against the appellant, taken the goods back to the house of a man named

Johnson, where Johnson‟s girlfriend Natalie Palmer, was present. Johnson gave

evidence that the appellant had passed the stolen goods out, they had then hidden the

goods whilst they returned to Johnson‟s house to get Natalie Palmer‟s car, picked up

the goods from one house and sold them.

4. Ms. Palmer had given a statement to the police in which she said that the appellant

and another man had asked her for the use of her car but as they were unlicensed she

38


said that she would drive them to where they wanted to go, that she had observed the

two men place some items in the boot of her car, that she had driven them to a house,

that the appellant had entered the house and then returned to ask her to drive the car

into the driveway of the house, that she had done so and the two men then carried the

items into the house and when they returned the two men told her they had received

$140.00 for their work.

5. When she was called as the Crown‟s first witness at the trial she was asked whether

she remembered either the appellant or the third man involved being at the house and

she replied:

“Sorry, I don‟t remember. At the time I was using drugs, I had a drug

problem, and I haven‟t got much memory now of what happened around that

time. I have been trying all morning to, you know, bring something back, and

I can‟t, my memory is just totally gone.”

Questions for discussion

Should leave be granted to cross examine Natalie Palmer?

What is the status of Natalie Palmer‟s earlier written statement to the Police?

NOTES:

39


EXAMPLE 2:

1. The appellant was convicted on charges of supplying a prohibited drug, cannabis leaf

and two charges of supplying a prohibited drug methyl amphetamine. She was found

guilty on the second and third charges. During her cross examination at the trial the

Crown Prosecutor asked a number of questions relating to the family wealth and a

series of further questions were put to her in which individual assets, income and

household expenditure were all explored. The appellant was contending in effect that

she and her husband were living off social security payments and that their house and

other assets were acquired on borrowed money and that they did not have great sums

of money at their disposal.

2. For its part the Crown was endeavouring to suggest that there was a steady stream of

money coming into the household and that that stream of money could not be

explained by social security payments having regard to the household outgoings

including the ordinary costs of living.

3. In that context the appellant was asked about the sum of $3,000 recorded in her bank

statement and a comment that she had made about “… all of the money we have won

on the poker machines”. She then said that some of the money coming into the house

would have come from poker machines “… probably a couple of grand out of it”.

4. The appellant could not recall where the winnings occurred and said “… we went to

clubs, pubs whatever”.

5. The Crown Prosecutor then asked: “It‟s fair to say isn‟t it, that you have put a lot of

money through the RSL Club?”

40


The Appellant answered: “No, I wouldn‟t say a lot of money, no.”

6. The Crown Prosecutor then cross examined the appellant obviously using an

unspecified document and put to the appellant the suggestion that between particular

dates, namely 1 January 1998 and 11 March 1999 at the Bathurst RSL Club she put

$43,087.52 through the poker machines and her husband put $52,671.10 through the

poker machines.

7. It was very clear that the cross examiner was using a document as he read from it a

reference to “turnover” and put other specific material to her. All of this took place

without any objection from counsel.

8. For example, at one stage the cross examiner said to the witness:

“You see that totals almost $100,000 doesn‟t it, what you have put

through the machines during those dates.”

Answer: “I have never put that much money through the machines.”

Obviously the $100,000 referred to was almost the total of the two amounts of money

referred to in the document used in the cross examination.

9. Amongst other things counsel for the appellant objected after the event saying:

“… he had never been put on notice of that intention by the prosecutor (i.e. to

raise the question of poker machine spending).”

10. The trial judge refused an application by the appellant‟s counsel to discharge the jury

and in a five page ex tempore judgement absolved the Crown Prosecutor of any

impropriety or unfairness in connection with the cross examination.

41


11. Counsel for the appellant then called a witness who was involved with the RSL Club

and endeavoured to elicit evidence explaining how a relatively minor initial

investment could produce a relatively high turnover figure in poker machines. The

key piece of evidence sought to be elicited from Mr. Flannery was objected to and

rejected, the matter was not pressed any further and there was no cross examination

by the Crown Prosecutor. However, the trial judge did deliver what the Court of

Criminal Appeal described as a Parthian shot:

“Q: I suppose a punter would know, most punters would know what they are

winning or losing at the end of each session wouldn‟t they?

A: Yes, I would think so.”

The Court of Criminal Appeal said that: “… the answer was at least capable of casting

some uncertainty on the credit of the appellant‟s evidence.”

12. Consider the following:

What if any provisions of the Actare engaged?

Was the cross examination in breach of any rule of practice or statutory rule?

Was the Crown required to give notice to the defence of its intention to go into the

question of poker machine earnings?

If you are of the view that a particular rule of principle or practice has been

departed from then what is that rule and how should the matter have been

approached?

NOTES:

42


EXAMPLE 3:

1. The appellant was convicted of manslaughter following a trial before a judge and a

jury in the Supreme Court. After an investigation of the murder the appellant and

another man were charged with murder. The other accused then entered a plea to a

lesser charge and was sentenced, it being anticipated that he would give evidence at

the later trial of the appellant.

2. The appellant was convicted for manslaughter was sentenced and appealed. The

original co-accused was called as a witness by the Crown. Leave to cross examine

that witness was granted to the Crown Prosecutor pursuant to s.38 of the Evidence

Act. The witness had claimed when called to give evidence to have no memory of the

relevant events, no memory of going to the victim‟s home unit, no memory of later

being on a motor cycle with the appellant and no memory of any intention to commit

a robbery at the home of the victim.

3. The witness had earlier been interviewed by police and a video recording of the

interview had been made. The recording was admitted into evidence.

4. In that interview, the witness admitted that he went to the victim‟s premises in

company with the appellant, that they had travelled together on the appellant‟s motor

cycle and that there had been an incident near a service station when the cycle

“slipped”. The witness asserted in the interview to the police that at the premises he

had sought to obtain some drug from the victim and had said that the appellant

attacked the victim with a piece of wood and it was the appellant who took a Nintendo

game from the apartment.

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Questions:

Should the record of interview containing those statements be admitted into evidence?

In the sense that the witness claimed extinction of memory was the record of

interview a prior inconsistent statement?

If so, to what issue was the interview relevant?

Was it relevant to a hearsay purpose?

Does Lee v The Queen (1998) 195 CLR 594 which deals with out of court statements

apply?

If not, why not?

Should the trial judge have given leave pursuant to the Crown pursuant to s.38 of the

Evidence Act to cross examine the witness.

NOTES:

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EXAMPLE 4:

1. The appellant was charged with armed robbery with violence involving a robbery by

two persons of a branch of the St.George Bank. The only significant issue in dispute

was whether the appellant was one of those two persons. The appellant did not give

evidence but there was called on his behalf a Mr. Donnelly who was an expert in the

field of photogrammetry, the science of taking measurements from photographs. Mr.

Donnelly‟s conclusion was that if his calculations of the offender‟s height as shown in

the photographs were correct, then the offender was not the appellant. Mr. Donnelly‟s

evidence centred upon photographs of the two offenders which had been taken by a

security camera inside the bank.

2. During the Crown Prosecutor‟s cross examination of Mr. Donnelly he was asked

whether he was aware of another case (which may well have been R v Rozynski

unreported, CCA, 1 February 1996) in which a Dr. David Lowe, who Mr. Donnelly

said he understood was a specialist in computer imaging, was involved in estimating

heights from a video recording, and it was suggested that Dr. Lowe had come to a

conclusion different from that reached by Mr. Donnelly in that case. It would appear

from at least one of Mr. Donnelly‟s early answers that the two used the same or a

similar method although Mr. Donnelly said that one of the methods contained

additional parameters. The evidence also established that Mr. Donnelly was one of

two persons who had signed a discussion or rebuttal of the report Dr. Lowe had

written in that case. Mr. Donnelly gave a non-responsive answer, to the effect that his

co-author had the view that Dr. Lowe‟s method had some serious problems with it.

3. The Crown Prosecutor then asked the following question:

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“If I can hand you a report from Dr. David Lowe. If I can get you to look at

the summary section?”

Objection was then taken.

The Prosecutor indicated that his aim was to establish that photogrammetry was an

inexact science and that experts differed in their results. Defence counsel maintained

his objection.

4. That objection was based upon two stated grounds:

(i) For the difference in results to have any weight one would need to establish

that there was some validity in the other assessment and there was no evidence

of that fact; and

(ii) The witness was being cross examined on someone else‟s document and the

document was not admissible.

5. The trial judge overruled the defence objections. When the cross examination

resumed Mr. Donnelly was taken to Dr. Lowe‟s report which was again described by

the cross examiner. Mr. Donnelly then agreed that Dr. Lowe had concluded that the

height of the person in the previous unstated case was 1.78m and that this differed

from that arrived at by Mr. Donnelly and his co-author by 9cm. Mr. Donnelly went

on to say that the respective methods differed and that different methods would use

different results.

6. In re-examination Mr. Donnelly gave further attention to Dr. Lowe‟s report and said

that Dr. Lowe‟s method was quite different and not safe.

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Questions:

Was the Crown Prosecutor‟s line of questioning relevant?

What are the principles to be applied?

Was the Crown Prosecutor‟s use of the document in conformity with the relevant

rules?

If not, why not?

If not, what should have been done?

What would you do if you were sitting on the Court of Appeal and the accused‟s

objections to the Crown Prosecutor‟s cross-examination were relied upon as the sole

ground of appeal?

NOTES:

47


EXAMPLE 5:

1. After a trial by a judge and a jury in the District Court the Appellant was convicted of

aggravated sexual assault in circumstances which need not be detailed for the purpose

of presenting for discussion the problem that arose in that case.

2. The Complainant had made a detailed written statement to the Police. That statement

was never put into evidence at the trial. It was however available to the defence at all

times and the complainant was asked several questions in cross examination by

counsel for the defence about certain parts of the statement.

3. Paragraph 40 of the Statement included the following:

“I talked to Donna about report (sic) this to the police and I finally decided to

report that Murray had assaulted me. I didn‟t tell Donna that Murray had also

sexually assaulted me. Donna organised a baby sitter for … and then followed

me in my car to pick up my son … from his baby sitter …”.

4. Paragraph 40 of the complainant‟s statement was not adverted to during the cross

examination of the complainant by counsel for the accused.

5. When Donna (Singleton) was examined in chief she gave evidence that the

complainant had, “… told me that her ex-husband raped her …”. In answer to a series

of questions by the trial judge Donna repeated her evidence that the complainant had

used the word “rape”. When the judge had concluded his questioning of Donna

(Singleton) he asked both counsel whether there was anything arising out of his

questions. The Crown Prosecutor naturally said no however counsel for the accused

did wish to ask some further questions in cross examination as a consequence

presumably of the judge‟s questions and the witness‟s answers.

“Q. The complainant, and you‟ve already given this evidence, the complainant

never said that her ex-husband had raped her did she?

48


A. Yes she did. Her ex-husband told – J…… told me that her ex-husband did

rape her but I didn‟t believe him, believe her and I didn‟t want to go into any

more details because it wasn‟t my business.

Q. You see when I asked you a question ---

A. Yeah I got a little confused.

Q. Maybe if you could read this paragraph, paragraph 40 and just read that

to yourself and indicate if you‟d like to change your evidence?

CROWN PROSECUTOR: Your Honour, the witness is being shown the

statement of the complainant, not the statement of the witness.

HIS HONOUR: Oh come on.

COUNSEL FOR THE ACCUSED: Section 44 your Honour, the representation

---

HIS HONOUR: Section 44. Well what does section 44 say?

COUNSEL FOR THE ACCUSED: The complainant has already given

evidence that she didn‟t ---

HIS HONOUR: Just a moment, just be quiet for a moment please. See you

never told this court that that was somebody else‟s statement.

COUNSEL FOR THE ACCUSED: No your Honour, the provisions ---

HIS HONOUR: Why not?

COUNSEL FOR THE ACCUSED: Because I‟ve asked this witness --

HIS HONOUR: I don‟t care what you‟ve asked this witness. Don‟t you think

that you might let me in on it?

COUNSEL FOR THE ACCUSED: I was trying not to let this particular

witness know --

HIS HONOUR: I don‟t care what you were trying to do. You see I run this

court and I‟m entitled to know the documents that you‟re putting into the

hands of the witness.

COUNSEL FOR THE ACCUSED: Yes. Section 44 allows --

HIS HONOUR: I don‟t care what you‟ve asked this witness. Don‟t you think

that you might let me in on it?

COUNSEL FOR THE ACCUSED: I was trying not to let this particular

witness know --

HIS HONOUR: I don‟t care what you were trying to do. You see I run this

court and I‟m entitled to know the documents that you‟re putting into the

hands of the witness.

COUNSEL FOR THE ACCUSED: Yes. Section 44 allows --

HIS HONOUR: Look I‟m not interested, I‟m asking you for an explanation at

this stage as to why you didn‟t tell me what you were doing.

COUNSEL FOR THE ACCUSED: Because, as I understand section 44, I‟m

entitled to cross-examine the witness about it and --

HIS HONOUR: You may well be, but I‟m entitled to know what‟s going on

and the impression that was given was that the document you were giving to

her was her statement.

COUNSEL FOR THE ACCUSED: I informed the Crown when they had

concerns that --

HIS HONOUR: Well the Crown doesn‟t run this court, I do.

COUNSEL FOR THE ACCUSED: Yes your Honour.

WITNESS: Section 44, I haven‟t got it there.

HIS HONOUR: Q. You‟re asked to read that particular --

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CROWN PROSECUTOR: Your Honour there‟s a legal issue arising out of this

which I really think --

HIS HONOUR: Wait till I just read this first would you? It‟s the old Queen‟s

rule, yeah.

COUNSEL FOR THE ACCUSED: May I carry on your Honour?

HIS HONOUR: Well you already have, you‟ve asked the question. You‟ve

been asked to read that particular statement and say do you want to change

your evidence.

COUNSEL FOR THE ACCUSED: Q. That statement indicates doesn‟t it --

HIS HONOR: No, no, no, you can‟t ask that. You can ask her the question that

you did ask specifically, and that‟s it.

COUNSEL FOR THE ACCUSED: Maybe there should be some legal

discussion about it in the absence of this particular witness.

HIS HONOUR: No there‟s no question about it.

COUNSEL FOR THE ACCUSED: A cross-examiner may question a witness --

HIS HONOUR: Please don‟t, please --

COUNSEL FOR THE ACCUSED: Is your Honour not allowing me --

HIS HONOUR: I am ruling that the question you asked is the proper question

to be asked and that‟s it.

COUNSEL FOR THE ACCUSED: Your Honour won‟t entitle me to go any

further?

HIS HONOUR: No.

Q. Now do you want to change your evidence?

A. No thank – no.

MFI #4 STATEMENT OF COMPLAINANT

COUNSEL FOR THE ACCUSED: Q. And when you indicated now that the

complainant did say that she had been raped, there was no further discussion

about it at that stage?

A. No.

HIS HONOUR: Yes, now what‟s your problem Mr Crown that you want to

raise?

CROWN PROSECUTOR: Your Honour, it‟s a matter which really needs to be

raised in the absence of the jury. It probably won‟t come to very much but it‟s

something that needs to be placed on the record.

IN THE ABSENCE OF THE JURY

CROWN PROSECUTOR: Your Honour, section 44 as I read it says that the

cross-examiner may question a witness about a previous representation

alleged to have been made by a person other than the witness.

HIS HONOUR: Yes, there‟s been some evidence given about that.

CROWN PROSECUTOR: Yes, but as I understand it, what my friend was

talking to in paragraph 44 --

COUNSEL FOR THE ACCUSED: No paragraph 40. Section 44.

HIS HONOUR: Section 44(3).

COUNSEL FOR THE ACCUSED: The paragraph I was taking her to, asked

her to read was paragraph 40.

HIS HONOUR: It‟s merely the old Queen‟s case. It‟s a situation where you

can put a document in front of a witness that‟s not their document and say

“Having read that, do you still adhere to your prior evidence” and that‟s the

only question that can be asked and that‟s clear from the question as well.

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CROWN PROSECUTOR: Yes your Honour, I don‟t wish to take it any further

because my understanding was that my friend was referring to paragraph 44.

HIS HONOUR: Yeah 44, she is --

CROWN PROSECUTOR: Paragraph 44 as opposed to section 44. I couldn‟t

see how paragraph 44 --

HIS HONOUR: Section 44 she‟s referring to.

CROWN PROSECUTOR: No I withdraw the objection.

COUNSEL FOR THE ACCUSED: Your Honour section 44(2) entitles the

cross-examiner to question a witness about the representation of --

HIS HONOUR: And it‟s contents.

COUNSEL FOR THE ACCUSED: Yes, if the representation has been

admitted.

HIS HONOUR: Yes.

COUNSEL FOR THE ACCUSED: So I‟m seeking to cross-examine --

HIS HONOUR: No, you put the document in her hand, not cross-examine her.

You put the document in her hand, but once you put the document in her hand,

all you can do is put the question that you asked.

COUNSEL FOR THE ACCUSED: Yes. In my submission I‟m entitled to

question --

HIS HONOUR: Well I reject your submission. You‟ve asked her the only

question you could ask her.

COUNSEL FOR THE ACCUSED: Your Honour I might seek some

instructions from my client in respect of this exchange that your Honour has

had with me in front of the jury. Would you Honour give me --

HIS HONOUR: Well you can take such instructions as you see fit.

COUNSEL FOR THE ACCUSED: Would your Honour give me five minutes?

HIS HONOUR: No well I‟m bringing the jury back and you can take your

instructions at 4 o‟clock.

IN THE PRESENCE OF THE JURY

NO FURTHER RE-EXAMINATION

WITNESS RETIRED AND EXCUSED

HIS HONOUR: Have you got your instructions yet?

COUNSEL FOR THE ACCUSED: Yes your Honour.

HIS HONOUR: Yeah, what do you want to do?

COUNSEL FOR THE ACCUSED: Make an application for a discharge of the

jury your Honour.

HIS HONOUR: Why?

COUNSEL FOR THE ACCUSED: Because your Honour gave the impression

to the jury that the accused‟s counsel had acted dishonestly by not informing

your Honour of the author of the statement ---

HIS HONOUR: No, not dishonestly.

COUNSEL FOR THE ACCUSED: It was something that I‟m entitled to do

pursuant to s44.

HIS HONOUR: You are entitled to bring it to my attention what you‟re doing.

I decide what the law is, not you and it‟s not for you to put a statement from

somebody else in the witness‟ hand without informing the court.

COUNSEL FOR THE ACCUSED: Without having meant to have misled your

Honour or the court, the issue is that the jury have been given the impression

51


that what I did was improper, and in my submission it was not, it was

something that I was ---

HIS HONOUR: Well it was, in my opinion it was.

COUNSEL FOR THE ACCUSED: I would ask your Honour to correct – if

your Honour‟s not prepared to discharge the jury and that application is

pressed, then to at least indicate to the jury that it was something which the

defence counsel was lawfully entitled to do, albeit if your Honour is not of the

view that it was done in the proper fashion.

HIS HONOUR: No, I‟m not going to tell the jury that and I‟m not going to

discharge them.

SHORT ADJOURNMENT”

6. Two grounds of appeal related to the exchange which has been fully set out above.

The first was that the trial judge had erred in rejecting the submission that Donna

Singleton could be cross examined about the contents of a previous representation

made by the complainant. The second was that the trial judge had erred in declining

to direct the jury that defence counsel had not acted improperly. As was observed in

the Court of appeal the two grounds were related.

7. When considering the tactical and forensic considerations in play it is worth

remembering that counsel for the accused had probably elected not to cross examine

the complainant about her conversations with Donna Singleton presumably because

the defence wanted to run the argument that sexual assault was not mentioned and that

this tended to show that a sexual assault as opposed to common assault, had not

occurred.

QUESTIONS:

Was counsel acting within her rights?

Need she have informed the judge before the taking the next step of revealing the

contents of paragraph 40 to the jury?

What if any elements of s.44 are enlivened?

Does s.45 have a bearing upon what happened?

52


Was Counsel at fault in putting the document to the witness without the prior

permission from the judge?

Did she transgress s.44(3)(d)?

What is the role if any of s.44(2)?

Is it conclusive that the complainant‟s police statement particularly paragraph 40, had

not been admitted into evidence?

Was Donna Singleton‟s evidence that the complainant told her that “her ex-husband

raped her” relevant?

If so, to what issues?

Was Counsel within her rights in showing the document to the witness without first

getting permission from the judge or informing the judge what she was doing?

Should she have been criticised for going that far?

NOTES:

53


EXAMPLE NO. 6:

1. The respondent was severely injured when his car skidded, hit an embankment at the

side of the road and rolled over. The appellant was a shire council which had been

carrying out roadworks at the area where the accident occurred. The trial judge held

that the respondent had skidded in loose gravel on the bitumen roadway and that the

appellant counsel was in breach of its duty of care in failing to clear the loose gravel

off the roadway and to warn of its presence and that that negligence was causative of

the accident. There was a one third reduction for contributory negligence.

2. A police constable gave evidence which if accepted was to make it impossible to

attribute the respondent‟s loss of control of his car to gravel deposited on the

roadway. However the trial judge did not accept the police constable‟s evidence.

3. One reason for the judge declining to accept the police constable‟s evidence was the

evidence of a private investigator who had interviewed the police constable several

weeks after the accident had occurred.

4. Nothing the police constable‟s notebook or in the formal record which the police

constable was obliged to make within a few days of the accident, recorded whether or

not there was gravel on the roadway. It followed that the police constable was giving

evidence as to the condition of the roadway from his unaided recollection. In cross

examination the police officer was asked:

Do you remember saying to Mr. McNabb (the private investigator) that he

road was bitumen, that you had no specific recollection of whether or not there

was gravel or sand on the road?

Objection.

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Counsel for the plaintiff: Unless my friend intends to call Mr. McNabb as a

witness.

His Honour: You can put the matter to him surely.

Counsel for the plaintiff: Your Honour has heard my objection. The question

has been put in a positive way with respect.

His Honour: I will allow it.

Counsel for the plaintiff: Do you remember saying that to Mr. McNabb,

(Constable).

A: No I do not.

Q: Was it the truth?

Objection.

Question rejected.

Q: Was it the truth that as at 26 June 1998 you had no memory of whether or

not it was gravel or sand on the road?

A: I don‟t recall saying that to Mr. McNabb.

His Honour: You‟re not being asked that now.

Counsel for the plaintiff: I‟m asking you was it the truth that as at 26 June

1998 you couldn‟t remember whether or not there was dirt or gravel on the

road?

A: I can‟t answer that.”

5. The private investigator was later called to give evidence which he did along the lines

that when he interviewed the police constable he prepared a detailed file note. When

he was asked to “have a look at this document”, plainly enough with a view to

evidence that the police constable told the private investigator that he could not

remember whether or not there was gravel or sand on the road, the defendant‟s

counsel objected. After argument the judge ruled that evidence to that effect would

be admissible because contrary to the appellant‟s submission what the police

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constable said to the private investigator would be prior inconsistent statement and in

the judge‟s view the police constable had denied its substance.

6. The private investigator gave the evidence. In cross examination it was suggested to

him that the police constable had said that he could not remember there being any

gravel on the bitumen at the scene of the accident even though it is not easy to see

how this would have assisted the appellant counsel. Nevertheless the private

investigator did not agree. The file note was tendered in re-examination but the

tender was rejected by the trial judge.

7. After going through the evidence of the police constable and the private investigator

in some detail and in the course of making his findings the trial judge said that he

thought that police constable was mistaken in his recollection of the state of the

roadway and that he accepted the private investigator‟s account of the conversation

with the police constable.

8. It was common ground that the evidence was relevant only to the police constable‟s

credibility. Thus the provisions of s.102 of the Act were engaged, that section

providing that such evidence is not admissible (called the credibility rule) subject to

certain exceptions. One of those exceptions is s.106(c) of the Act which provides that

the credibility rule does not apply to evidence that tends to prove that a witness has

made a prior inconsistent statement, if the evidence is adduced otherwise than from

the witness and the witness has denied the substance of the evidence.

9. A precondition to the admission of that evidence derives from s.43 of the Act so that

if the witness has been cross examined about a prior inconsistent statement alleged to

have been made by the witness and does not admit the making of the prior

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inconsistent statement, the cross examiner cannot adduce evidence of the statement

otherwise than from the witness unless in the cross examination the witness has been

informed of enough of the circumstances of the making of the statement to enable the

witness to identify it and the witness‟s attention has been drawn to so much of the

statement as is inconsistent with the witnesses‟ evidence.

10. In its submissions in the Court of Appeal the appellant contended that the

precondition was not satisfied because the circumstances of making the statement

were not sufficiently stated. The judge rejected that submission and the Court of

Appeal ruled that the trial judge was correct to do so.

11. The appellant further submitted that there had not been a denial of the substance of

the evidence to be given by the private investigator.

12. The trial judge had said:

“On my reading and overall impression of the police officer‟s evidence, I

come to a contrary view. It seems to me that the provisions of s.43 have been

enlivened (counsel for the shire) submitted that under s.106 of the Evidence

Act what was required as a foundation for the evidence now sought to be

elicited is that the witness has denied the substance of the evidence which Mr.

McNabb (the private investigator) is expected to be about to give. In my

opinion, he has denied that substance.”

13. The Court of Appeal, no doubt inclined to the view that the judge‟s comments needed

to be buttressed somewhat said that:

“This part of the ruling should be understood in the light of the judge‟s

observation, made in the course of final submissions, that his impression of

constable Carol‟s response are of non-remembrance was that it amounted to “I

didn‟t say that”. The judge said in the ruling that, in his opinion, constable

Carol denied the substance of the evidence Mr. McNabb was expected to give.

Material to the opinion was the way Constable Carol gave his evidence. The

judge was in an advantageous position in so concluding, and (in the opinion of

the Court of Appeal) no error has been show in the ruling.”

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Questions:

Do you think that there had in fact been a denial of the substance of the evidence the

private investigator was expected to give?

Is this a case at the margin?

Was the evidence of the private investigator relevant only to the police constable‟s

credibility?

Was the exception to the credibility rule in s.106(c) correctly engaged?

NOTES:

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The limits of cross examination – Wakelely

FURTHER EXAMPLES

1. A consultant retained by a construction company to assist in the preparation of a claim

against a large government instrumentality arranges a meeting with the construction

company‟s principal engineering consultants to try to ascertain whether the actions of

the government instrumentality caused a delay and relevant extra cost to the

contractor. One of the engineering consultants says:

“The actions of the government instrumentality did not delay us (and by

inference they therefore did not delay the contractor).”

2. The consultant makes a detailed note of his discussion with the engineer. That note is

then produced both on discovery and in response to a subpoena which specifically

called for notes of that character.

3. The note:

Contains a facsimile heading at the top of each page which indicates that the

contractor sent the facsimile to a stated fax number on a particular day and at a

particular time.

Contains a heading setting out the name of the construction firm and the name

of the two principal engineers suggesting that the document is in the form of

conference notes.

The cover sheet is signed “Sam Wilson”.

4. Sam Wilson is not called. The two engineers are not called. There is evidence that

Sam Wilson is retained by the contractor. What use can be made of this document?

EXAMPLE 2

5. This relates to the same meeting but there is a twist. Mr. Wilson is called to give

evidence.

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EXAMPLE 1

R v Emilio Lozano – BC9702441

EXAMPLE 2

R v Lisa Bevan [2000] NSWCA 224

EXAMPLE 3

R v Jason Lee Rees – BC200100279

EXAMPLE 4

R v Morgan [2000] NSWCA 7

EXAMPLE 5

R v S [2003] NSWCCA 122

EXAMPLE 6

Copmanhurst Shire Council v Watt – BC200505309

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