Hostile Witnesses - Structure or Answer PDF

Preview

Summary

Hostile Witnesses – Structure of Answer...

Description

Nick Dowse

Hostile Witnesses

Hostile Witnesses – Structure of Answer 1. “The issue here is whether [counsel] can discredit their own witness, [witness’s name], in the witness box?” a. When calling a witness, the caller expects their testimony to be favourable to the case. When this doesn’t happen, the caller will want to attack the witness to destroy the effect of the evidence. b. Whether you can do this depends on whether the witness is hostile or merely unfavourable. c. Usually crops up in examination-in-chief, not the other phases. 2. “The general rule is that counsel cannot discredit their own witness unless they are hostile. A hostile witness is something more than just an unfavourable witness.” a. Hostile vs Unfavourable b. An unfavourable witness is a witness that does not prove a fact in issue or proves a fact helpful to the other side (Cross on Evidence @ p 522). i. Colloquially = a witness “who fails to come up to proof” c. If witness is merely unfavourable, counsel has very limited recourse. CL does not allow a party to discredit an unfavourable witness in any way whatever (R v M). i. However, counsel is at liberty to make out the case using other witnesses (Ewer v Ambrose). d. A hostile witness is one who is “unwilling to tell the truth for the advancement of justice” or is “withholding material evidence” (McLelland v Bower @ 104). e. Hostility is an objective question of fact for the judge (McLelland v Bower). i. Onus of proving hostility is on the party seeking declaration. ii. Standard of proof: to show affirmatively hostility. iii. It is in the discretion of the judge to declare a witness hostile, but failure to do so may be grounds for an appeal (McLelland v Bower). 3. “In determining whether a witness is hostile, reference may be made to: a. any prior inconsistent statement (PIS); b. their demeanour; c. conduct in the witness box; d. choice of language; e. responses to non-leading questions (R v Mullins).” 4. Prior Inconsistent Statements a. “[Counsel] can use [witness’s] statement before the trial to show hostility. This is inconsistent with current testimony and is therefore a PIS.” b. Check: are we relying solely on the PIS? (ie can we also rely on their demeanour/conduct/language etc?) i. If relying solely on PIS, need to have a voir dire to satisfy judge of hostility (Hadlow). ii. [Witness] needs the opportunity to explain the [inconsistency] as may have legitimate excuse for failing to answer questions properly or saying PIS. Judge must give witness chance to explain or repudiate the PIS before declaring hostility, otherwise grounds for successful appeal (Hadlow). iii. If not relying solely on PIS, there is no need for a voir dire because the jury would have already seen the witness acting inappropriately in the witness box! c. Procedures to follow if declared hostile on basis of PIS… i. [Counsel] must get leave of the court to cross-examine [witness] and if necessary prove the statement made to the police officer immediately after the accident: s 17(1) QEA. ii. [Counsel] must put the circumstances of the incident to [witness] so that can identify the statement and comment on whether made it: s 17(2) QEA. d. Witness may react in three possible ways…

Page 1 of 6

Nick Dowse

5.

6.

7.

8.

9.

Hostile Witnesses

i. If [witness] admits making the PIS and that PIS is true (ie the thing they just said in court is not true), then the PIS goes to credit only, and is not proved under s 17 QEA The PIS becomes part of her oral testimony. 1. It is up to the jury whether to accept or reject the truth of the PIS (Morris) 2. It is also up to the jury to decide the weight to place on the evidence ( Morris) ii. If [witness] admits making the PIS but denies PIS is true (ie admits first statement was a lie), then – 1. The PIS is proved by virtue of s 17 QEA; and a. Counsel needs to put to witness circumstances of the statement ask them whether or not they made that statement 2. The PIS becomes evidence of the truth of its contents (s 101(1)(a) QEA); and a. PIS is deemed to be the truth (Lawrie) b. This is an exception to hearsay. 3. The jury is to determine the weight it affords to the PIS under s 102 QEA a. Can consider whether statement made soon after the event (s 102(a)) and whether [witness] had any incentive to conceal or misrepresent the facts (s 102(b)). b. Made immediately after = significant weight etc iii. If [witness] denies making the PIS, [counsel] will need to lead evidence to prove that [witness] made the PIS (s 17 QEA). 1. In this situation, the counsel should call the [police officer] to prove that [witness] made the PIS (s 17 QEA) a. Counsel needs to put to witness circumstances of the statement ask them whether or not they made that statement 2. The PIS becomes evidence of the truth of its contents (s 101(1)(a) QEA) a. PIS is deemed to be the truth (Lawrie) b. This is an exception to hearsay. 3. The jury is to determine the weight it affords to the PIS under s 102 QEA a. Can consider whether statement made soon after the event (s 102(a)) and whether [witness] had any incentive to conceal or misrepresent the facts (s 102(b)). b. Made immediately after = significant weight etc 4. Go to “Prior Inconsistent Statements in Cross-Examination” notes for written PISs. Demeanour a. Being shifty b. Not maintaining eye-contact c. Being argumentative d. There is no need for a voir dire because the jury would have already seen the witness acting inappropriately in the witness box! Conduct in the Witness Box a. Uncooperative etc b. There is no need for a voir dire because the jury would have already seen the witness acting inappropriately in the witness box! Choice of Language a. Swearing etc b. There is no need for a voir dire because the jury would have already seen the witness acting inappropriately in the witness box! Answers to Non-Leading Questions a. Rigid, refusing to answer properly. b. There is no need for a voir dire because the jury would have already seen the witness acting inappropriately in the witness box! Effect of declaration of hostility Page 2 of 6

Nick Dowse

Hostile Witnesses

a. After [witness] is declared hostile, calling counsel can proceed to cross-examine [witness] and ask leading questions (Hunter; Hutchinson) i. Can be cross-examined as to facts in issue, as well as the witness’s credit (Thynne). b. A conviction may be overturned where a witness is inappropriately declared hostile (Kong @ [21]-[28]). c. Section 18 QEA does not apply to hostile witnesses (Baira @ [27]-[29]): i. That is, the circumstances of the PIS need not be mentioned to the witness and the witness need not be asked whether or not the witness has made such statement under s 18 QEA. ii. Section 17 permits proof, once leave is given, of the inconsistent statement of a hostile witness, which then, by virtue of s 101, becomes admissible as evidence of the facts stated in it. Section 18 is an entirely different mechanism, and has no application to the situation where the court has formed the opinion that the witness is adverse (per Holmes JA @ [29]).

R v Hadlow  Hadlow appealed his conviction of the murder of an 8 year old girl  A set of sheets was found in a garbage bag – medical evidence showed that the vomit found on the sheets were the deceased girl’s vomit  Hadlow’s wife identified the sheets as coming from her household and repeated this at committal  On trial, Hadlow’s wife then denied that she ever saw the sheets before  Trial judge declared her a hostile witness and gave leave was given to Prosecutor to crossexamine on PIS  The trial judge declared Hadlow’s wife as a hostile witness without conducting a voir dire  Hadlow appealed to the Court of Appeal on the ground that the trial judge wrongly declared a witness to be an adverse witness  Court of Appeal dismissed the appeal  The Court of Appeal held that the application for leave to prove the making of a prior inconsistent statement under s 17 QEA was distinct from proving a witness adverse R v Morris  Morris called as a witness to the murder of man who lived in a refuge  Morris gave evidence inconsistent with statement made to police  During the trial, Morris was declared a hostile witness  Cross-examined on PIS that was argued  High Court said that there was no reason to rely on s 17 QEA to prove the truth of the contents of the PIS – the jury just had to decide which story to believe  But strong warning should be given to jury in relation to credit of witness who gives inconsistent stories R v Lawrie  Lawrie’s wife called as witness for the Crown for serious assault  During evidence-in-chief, Lawrie’s wife gave evidence of “getting Lawrie off”  Lawrie’s wife was declared hostile and then cross-examined  Her signature appeared on a previous statement (PIS) taken by police but she said it wasn’t true  She alleged that police had constructed that statement and she merely said yes or no  Therefore, called hostile and the PIS (police statement) was proven by virtue of s 17 with court’s leave  Therefore, the truth of the contents of the PIS was proven by s 101 QEA  It was up to the jury to decide the weight to be given to the PIS under s 102 QEA

Page 3 of 6

Nick Dowse

Hostile Witnesses

Clarification on whether ss 18 and 19 of the QEA apply to hostile witnesses from Bob Sibley S18 does not add anything to s17. Both are declaratory of the common law and apply to quite different situations. A statement proved by virtue of s17 does not bring into play s 18. Statements "proved" using s17 and 18 can be either oral or in writing. On the other hand, S19 does apply to both s17 and s18 statements when they are in writing. It changes the common law constraints when cross examining using a written PIS of the witness. Section 101 profoundly changes the common law in respect to s17 and s18 statements. Section 17 provides that "in case the witness in the opinion of the court proves adverse" a party may by leave of the court prove that the witness has made at other times a statement inconsistent with the present testimony of the witness. The words in bold inverted commas refer to the common law requirements in relation to a court declaring a witness adverse or hostile ie establishing that the witness is "unwilling to tell the truth for the advancement of justice" or "withholding material evidence" [see generally McLelland v Bower for the requirements]. Once the requirements at common law have been satisfied the court declares the witness hostile and then grants leave to the party to cross examine the witness. This can also be achieved at common law by using a Prior Inconsistent Statement [PIS] or to use the words of s17 "a statement inconsistent with the present testimony". Where a PIS is relied upon entirely to satisfy the common law requirements a voir dire must be conducted in case the witness has a satisfactory explanation for making the PIS [Hadlow]. Whether the demeanour etc or a PIS or a combination of both [ see Hadlow] has been used to satisfy the common law requirements, the party calling the witness is allowed to cross examine and destroy the credit of their own witness. That is all that is achieved at common law! Even where a PIS that is relevant to the issues is used to discredit the credibility of a hostile witness at common law it is limited to that purpose. [Remember that some PISs may not go to the issues in the trial but still may be sufficient to secure a ruling that the witness is hostile. An obvious example is a PIS establishing bias or corruption although it would be extremely rare to use such a PIS in the case of a party calling the witness themselves for the obvious reason that you would rarely call witnesses known to be biased abainst your party simply to have them declared hostile. This would indeed be improper for the prosecution at common law, even in the case of a PIS that was relevant to the issues, because it only goes to the credit of the witness.see Thompson v R; Blewitt v R. Of course it is not improper for the prosecution [or any party] to call a witness suspected of being hostile for the purpose of securing such a ruling and then proving a PIS which is available to prove the truth of the contents; see Williams in Qld and Adams under the CEA] So, S17 does not therefore change the common law position as such. It is the combination of s17 and s101 that changes the common law position in the case of a witness who could give "direct oral evidence of a fact" contained in the s17 statement. In that case s101 provides that a s17 [and of course also a s18 and s19] statement "shall be admissible as evidence of any fact stated therein of which direct oral evidence by the person would be admissible" This suggests that it is only those PISs that are relevant to the issues that are admissible as truth under s 101 if proved by virtue of s17, 18 or 19. Since s17 allows proof of a PIS statement by a hostile witness and s 101 makes admissible as evidence those facts in the s17 PIS about which the witness could have given direct oral evidence you do not need, in my view, to rely on s18 of the QEA. This is the effect of the decision by the majority in Laurie. Ambrose J in Laurie did suggests that s 18 may come into play but s18 would Page 4 of 6

Nick Dowse

Hostile Witnesses

seem to me to be complimentary to s 17 not a precondition to the admissibility of s 17 statements under s101. Section 18 in combination with s101 changes the common law position with respect to the proof of a PIS relevant to the issues of a witness called by the other side. At common law you could always cross examine a witness called by the other side and put to them that they had made a prior statement inconsistent with their present testimony ie relevant to the issues. If they denied that they made the statement [or did not distinctly admit that they made it] you could prove that they had made such a statement. However, this only went to the collateral issue of their credit! At common law the PIS relevant to the issues could never be used as evidence of the facts contained therein. That, incidentally, is why proof of a PIS relevant to the issues is always listed as one of the exceptions to the common law collateral issues Finality Rule [see eg McHughs list in Goldsmith v Sandilands]. So s 18 also does not really change the common law as it has stood since as long ago as Queen Carolines Case in 1842. It merely restates it. The change to the common law is brought about because, like the case of s17 statements, s 101 makes admissible as evidence any fact in the s18 statement of which direct oral evidence by the person would be admissible ie anything relevant to the issues. S18 therfore does not add to s17 in relation to a hostile witness. You do not need s18 to prove a statement of a hostile witness made admissible at common law and as restated in s17. Section 19 does radically change the common law as stated by the Court of Kings Bench in Queen Carolines Case. At common law, before a witness could be asked about a statement in writing made by the witness themselves [for our purposes here a PIS relevant to the issues], the document had to be produced, verfified, shown to be admissible and entered into evidence by the party using the document. In the case of cross examination on a PIS relevant to the issues this was a most inconvenient course and disadvantageous to the party cross examining beause the witness knew the nature of the cross examination in advance of hte questions being asked. S19 was simply enacted to change the common law rules in the case of a document written or reduced into writing by the witness [whether a hostile witness under s17 or a witness for the other side cross examined about a PIS under s18]. In neither case need you actually show the document to the witness and you certainly dont have to tender it into evidence [although you certainly will want to if the witness does not distinctly admit making it]. The use of the words in s101 "proved by virtue of s19" can only refer to the requirements that you comply with s19(1A) ie call their attention to those parts of the document which are to be used to contradict. S19 (1A) really adds little if anything to the common law position. It is clear from Nicholls and Coates v R that the provisos to s17 and s18 are merely declaratory of the common law as it has stood since 1842. The provisos to s17 and 18 [and s19] can be identified as examples of the need to comply with the rule in Browne v Dunn. However they go much further than the limited requirements of the rule in Browne v Dunn if they are PISs proved "by virtue of" ss 17 and 18, WHETHER THEY ARE IN WRITING OR ORAL! The provisos in s17 and 18 are taken directly from the judgements in Queen Carolines Case, Crowley v Page and Angus v Smith. They require, according to the HCA, that the specifics of the time, place, persons involved and what precisely was said to be put to the witness before contradicting evidence can be called. This applies equally to PISs that are proved at common law such as the statement by the prosecution witness to the defence witness in Nicholls and Coates. This was not relevant to the issues but rather potentially admissible as establishing corruption on the part of the prosecution witness. So, even in the case of a PIS not relevant to the issues the strict requirements of the common law have to be complied with. That is why Nicholls and Coates are still in prison! One final observation by way of completeness. In the case of a written document that is not that of the witness s 19 has no application to the cross examination. It is yet another of the rules in Queen Carolines Case that applies to the case. The document can merely be placed in the hands of the witness and the witness be told to read the document without revealing the contents. Then the witness can be asked if they still adhere to their previous testimony. If they say they do so Page 5 of 6

Nick Dowse

Hostile Witnesses

adhere then the document must be taken back by the cross examiner and nothing further said about it: eg the Hilton Bombing Case where the accused Alister was cross examined about publications by the Ananda Magda Sect of which Alister was a member but he had not written the publications. As an aside this was the first serious terrorist bombing in Australia. Long live the Queen [Caroline]! Hope this was helpful to clarify a complex area of the law which is still steeped in ancient common law dating back nearly 200 years. In a later email, Bob Sibley stated: I have been looking at this again and Hadlow suggests that there was some doubt that you could actually prove a PIS at common law that had been used to secure the declaration of a witness as hostile leading to the right to cross examine the witness. This could arise if they neither admitted nor denied that they made it but were still declared hostile and cross examined on it. It was said in Hadlow that this right was clarified by the enactment of s17 [and the predecessor Common Law Procedure Act 1854 in UK]: see Ryan J at p 441-2 and his reference to Hunter. I actually think that you could prove the making of PIS at common law even before the enactment of the equivalent of s17 but that is by the way. Once you could prove it by virtue of s17, s 101 was triggered as discussed below. The reason I think that you could prove it at common law arises from the discussion by Hayne and Heydon in Nicholls and Coates at paras 274 to 282 and in particular the reference to the English cases particularly Parke B in Crowley and Page in 1837 and Carpenter v Wall in 1840 and the 1854 UK legislation which was enacted "to clarify" that Parke B's view was correct that it could be proved provided the circumstances of the making of the statement were put to the witness [see Nicholls and Coates para 280]. Although the discussion by Hayne and Hayden is in the context of the equivalent of our s18 of the WA legislation [their s21] and a PIS that established bias or corruption the references are broad enough to also refer to proof of a PIS used to delcare your own witness hostile...