Answers to finality or Collateral Issues - Structure or Answer PDF

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Finality of Answers to Collateral Issues – Structure of Answer...

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Nick Dowse

Finality of Answers to Collateral Issues

Finality of Answers to Collateral Issues – Structure of Answer Issue: Can [counsel] call further evidence of [fact]? Here, [counsel] intends to call further evidence about [facts] which were matters raised in [witness]’s cross-examination. Finality rule: Answers to collateral issues in cross-examination are final, thus cannot contradict by calling further evidence about [fact] unless an exception applies: Piddington v Bennett and Wood. Is [answer] a collateral or main fact in issue? IF MAIN FACT IN ISSUE The finality rule does not apply and further evidence can be called. IF COLLATERAL ISSUE [Evidence/answer] is a collateral issue as relates to the credibility of a witness, the admissibility of evidence and judicial discretion. They are not raised in examination in chief because they are not relevant to the main facts in issue. (Finality rule applies – GOTO exceptions to finality rule) IF witness called who claimed to be in area when saw/heard accident/incident in question If the Court is deciding whether the Court believes his/her story about whether they were in that place – this is a collateral issue as it goes to credit: majority in Piddington. Whereas if the court is determining whether he/she in place to see the accident (ability to see & observation skills) – main fact in issue. Thus no need to consider exceptions as finality only applies to collateral facts and thus could call evidence about [fact]. Piddington v Bennett and Wood  Plaintiff claimed he had been injured as a result of the Defendant breaching his duty of care while driving around a corner in Martin Place  Witness gave evidence in chief that he was standing on a corner of a street and saw D driving around a corner quite quickly so as to endanger P  Witness was cross-examined by counsel and asked why he had been standing there at the relevant time  Witness replied that he had been to the bank to cash a cheque  This was not in fact true  Could the defence counsel call the bank manager as a witness to refute the evidence of the witness? i.e. is this a collateral issue?  Held: The reason given by the witness (who was an eyewitness) as to why they he was in the vicinity of the accident (i.e. to do some banking) was a matter that went to his credit only and was simply a collateral issue – this was despite the unanimous finding by Court that the witness’ presence was an issue in the case  It was a collateral issue because whether or not he had been to the bank was only indirectly relevant to whether he could see the events as eyewitness or how he saw it as he described it

Can ask witness question multiple times: This does not mean that the cross-examiner cannot ask the same question more than once in an effort to get the witness to change their answer (Western Australia v Watson). The only “remedy” against a witness who falsely denies a cross -examiner’s question going only to credibility is a later prosecution for perjury, but this is unhelpful to the crossexaminer in the case being tried. Finality rule is rule of evidence: It has been suggested that it is possibly a flexible standard because it is often difficult to determine whether a piece of evidence is collateral or not (Goldsmith v Sandilands). But it is now settled that by the High Court that it is a rule of evidence, not merely a rule of case management (R v Nicholls). Page 1 of 5

Nick Dowse

Finality of Answers to Collateral Issues

Goldsmith v Sandilands  Accident on 26 June 1993  Goldsmith sued Sandilands (police officer in police car) for damages arising out of a road accident  Issue was whether Goldsmith’s injury resulted from the police car chase or from indoor cricket injuries  Goldsmith alleged that Sandilands, who was driving a car, breached his duty of care in the management and control of a police car  Sandilands contended that Goldsmith was injured on the 22 June some 4 days before the accident whilst playing indoor cricket in Perth and wanted to lead evidence that – (a) Goldsmith had played indoor cricket; (b) Goldsmith was playing on the 22 June; and (c) That he said after he was picked up by Sandilands on 22 June at the indoor cricket ground that he stuffed his back playing indoor cricket  Goldsmith was cross examined and it was ascertained that he was playing cricket on a given night at the Strikers and had stated that he had injured his back  The defence counsel acting for Sandilands sought to lead evidence from his own client to contradict the evidence of where the actual cricket club was (i.e. the location)  The High Court held that it was a collateral issue as he admitted that he was playing cricket – the location of the cricket ground was of little consequence

Exceptions to finality rule Five exceptions to finality rule: 1. Previous convictions 2. Bias 3. PIS 4. Notorious liars 5. Mental instability (1) Prior convictions of the witness In civil and criminal proceedings, witness not required to answer questions that show they have committed or have been charged with any offence if the rehabilitation period has expired, unless permitted by the Court (obtained on voir dire): s 15A QEA. IF adult Rehabilitation period = 10 years for adults: s 3 Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld). IF child Rehabilitation period = 5 years for children: s 3 Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld). IF period expired (ie. adult and offence was > 10 yrs ago; child and offence was > 5 yrs ago) [Witness] cannot be questioned about conviction as period has expired – matter is final. IF period not expired (ie. adult & offence was > 10 yrs ago; child & offence was > 5 yrs ago) [Witness] can be questioned about conviction as rehabilitation period has not expired. IF need more facts about age Page 2 of 5

Nick Dowse

Finality of Answers to Collateral Issues

Eg. for an adult at uni: If rehabilitation period still going – can ask. If expired then cannot ask. Thus need to know his/her age because if has been 10 years since was an adult then RP expired. Whereas if only in twenties, 10 years probably still running and can ask. If person denies previous convictions or refuses to answer, then can prove conviction under s 53 (use certificate of conviction to prove offence) or s 54 (use fingerprint expert to prove identity of person) (s 16 QEA). NB. Proof of conviction: s53 QEA  s53 QEA – Can prove a conviction (or acquittal) by production of the following: (d) the original of the order, process, act, decision or document; or (e) a document proved to be an examined copy of the order, process, act, decision or document; or (f) a document purporting to be a copy of the order, process, act, decision or document and to be sealed with the seal of the court; or (g) a certificate showing such matter and such particulars and purporting to be under the hand of— (i) a registrar of the court; or (ii) a person having the custody of the records or documents of the court; or (iii) any other proper officer of the court; or (iv) a deputy of such registrar, person or officer. 

s54 QEA - An affidavit made by a fingerprint expert who is a member of State or Cth police force and in the approved form shall be admissible in evidence for the purpose of proving the identity of any person alleged to have been convicted in Queensland, in the Commonwealth or in the other State or Territory of any offence.

(2) Bias, partiality, corruption or interest of the witness Evidence admissible if tends to show that witness was biased or partial in relation to the parties or the cause: R v Umanski. “Bias” or “interest” is defined as an allegation showing a motive for giving false evidence: R v Umanski. Bias includes bribery, fear or blackmail (Field @ 6.73). IF no bias No evidence of bias. IF possible bias Here, there may be bias because of:  People involved in some kind of relationship – parents, children, spouses, family, aunties, uncles, cousins, friends etc  Denial by plaintiff’s witness that she was the plaintiff’s mistress could be refuted (Thomas v David)  Witness’ denial that he had been offered (as opposed to accepted) a bribe could not be refuted (Attorney-General v Hitchcock)  An allegation that a witness had said the police that, if compelled to give evidence, he would lie in order to avoid offending the accused was an allegation of bias (R v De Angelis)  Corruption – for example, money or power in exchange for lying in the witness box R v Umanski  The accused was charged with a sexual offence by his daughter  The wife was called to give evidence

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Nick Dowse

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Finality of Answers to Collateral Issues

She was cross-examined on the basis that she told a third person that she would report her husband to police unless he gave her two-thirds of their matrimonial property Counsel had Mr Lawrence out in the witness room who would testify as to the prior inconsistent statement from the wife Was the fact that the wife wanted money from husband otherwise she would not testify for him relevant to the facts in issue? NO – not directly or indirectly relevant to whether the husband interfered with the child BUT if it is evidence of bias and she won’t admit it then you can prove the prior inconsistent statement and you would be doing this under the common law rules The effect is that it would demonstrate that the wife is a liar – it is not proof of the facts in dispute (unlike when you are proving the PIS under statute) Court of Appeal of Victoria held that it was not biased as it didn’t prove that she hadn’t given the correct evidence, just that she wouldn’t have testified if he had paid her Note: VERY DODGY DECISION but no express overruling of this decision

(3) Prior inconsistent statements of the witness – See “Prior Inconsistent Statements in CrossExamination” notes… IF PIS As stated above – yes OR Here the [document/statement] says [fact] yet in court [witness] says [opposite]. Thus yes. Eg: where asked in the witness box in cross-examination about their relationship to one party in the case, witness might deny the relationship. But the cross-examiner might have a document that proves the witness is married to one of the parties. So, in that type of situation, you’ve got a prior inconsistent statement. Cross-examiner can then produce the document to prove that there is a relationship, thereby affecting the witness’s credibility. IF NO PIS Here, [witness] never said anything in relation to [fact]. Thus nothing to contradict from, no PIS. (4) The witness’s general bad character (notorious liars) If a witness denies that they are lying, a rebutting witness may be called to give evidence that the impugned witness has a general reputation for bad character. However, the rebutting witness may not be asked in examination-in-chief about any particular facts or incidents upon which that opinion is based (R v Richardson and Longman). (5) The physical or mental unreliability of the witness Medical evidence is admissible to show that a witness suffers from some disease or defect or abnormality of mind that affects the reliability of his evidence (Toohey v Metropolitan Police Commissioner). This is in relation to an incapacity which is not such as to render them incompetent to testify in the first place. In many such cases (e.g. those which involve the witness’ eyesight or physical strength) the evidence in question may be more properly thought of as impugning the witness’ credibility, but occasionally may have direct relevance to their credit. In Toohey v Metropolitan Police Commissioner, evidence that a vital witness might suffer from “hysterical imagination” and therefore not capable of giving a true and accurate account of events was able to be refuted because it was adduced as an exception to the finality rule. Conclusion as to finality: IF exception(s) apply Page 4 of 5

Nick Dowse

Finality of Answers to Collateral Issues

An exception applies, thus [counsel] can call evidence about [fact]. IF exception does not apply Assuming this is a collateral issue, no exceptions apply – thus [counsel] cannot call evidence about [fact].

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