Prior Inconsistent Statements in Cross - Exam - Structure or Answer PDF

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Prior Inconsistent Statements in Cross-Examination – Structure of Answer...

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Nick Dowse

Prior Inconsistent Statements in Cross-Examination

Prior Inconsistent Statements in Cross-Examination – Structure of Answer These may be either written or oral. As counsel is cross-examining the other party’s witness, no need to prove witness is adverse before any PIS can be put to them in cross-examination. Section 18(1) QEA allows cross-examining counsel to go and prove that the witness made a PIS, subject to satisfying requirements of s 18:  Witness is being cross-examined? [Yes].  Former statement is relative to the main facts in issue? IF relative to MFII Here, [fact] is main fact in issue because goes to proving [element of action]. IF not relative to MFII Here, [fact] is collateral not main fact in issue because it is about [credit]. Thus s 18 has no application & s 101 will apply such that PIS is deemed to be the truth. Cross-examining counsel can still go ahead and prove PIS was made but will only affect credit of witness (eg. bias). However, must satisfy finality rule.  Former statement is inconsistent with present testimony (PIS is made)? [Yes].  Witness given opportunity to admit they made a PIS? Must mention to the witness the circumstances of the supposed statement sufficient to identify the statement and occasion and witness must be asked whether they made the PIS: s 18(2) (reflects rule in Browne v Dunn)  Witness does not distinctly admit or deny that they made the PIS? Possible responses by witness of a PIS in cross-examination: (1)

IF admit that they made PIS and that it is true  PIS becomes part of the witness’s testimony but only goes to the credit of the witness  The PIS is not being proved pursuant to s 18 and s 101 will not apply either

(2)

IF admit that they made the PIS but that it was NOT true  The PIS is deemed to be the truth pursuant to s 18 and s 101

(3)

IF does not distinctly admit or deny that they ever made the statement  Prove that the witness made the PIS (using evidence of another witness eg. call police officer)  The PIS is deemed to be the truth by virtue of s 18 and s 101 – jury directed must accepted PIS as true evidence.  The weight attached to the PIS is a matter for the jury (s 102). Considering: (a) Contemporaneity (time between when PIS made and incident – closer in time, the better); and (b) whether maker of PIS has incentive to conceal or misrepresent facts (eg. knows one of the parties involved in the case)

s 18 QEA – Proof of previous inconsistent statement of witness (1) If a witness upon cross-examination as to a former statement made by the witness relative to the subject matter of the proceeding and inconsistent with the present testimony of the witness does not distinctly

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Nick Dowse

Prior Inconsistent Statements in Cross-Examination

admit that the witness has made such statement, proof may be given that the witness did in fact make it. (2) However, before such proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness and the witness must be asked whether or not the witness has made such statement. R v Mursic  Accused charged with violence against own wife  During an argument threw petrol over her and lit her on fire  His wife was interviewed by police after the assault in hospital and she told them that the accused (her husband) bashed her and set her on fire  By trial the wife had reconciled with her husband and the Crown did not call her to give evidence  The wife instead gave evidence for the defence – favourable to the accused  In cross-examination by the Crown, it was put to her that she had given this statement to police which was accordance with the Crown case  The wife agreed that she had made a statement to the police but denied that what she told the police was true because she had been ill at the time (upset, in hospital)  Was the statement made to the police relevant to the subject matter of the proceedings (i.e. the main facts in issue – grievous bodily harm)? – YES  Held that s 18 permits proof of PIS put to witness upon cross-examination if he ‘doesn’t distinctly admit that he has made such statement’  The wife never distinctly admitted what was contained in the statement was what she told police  By virtue of s 18, her PIS (to police that her husband bashed her and set her on fire) was admissible of evidence of any fact stated therein of which oral evidence would be admissible  Section 101 then applied to make her PIS evidence of the truth of its contents

Written PIS Here, there is a written PIS. 1. Is the document made, verified or adopted by the author? IF NO – not made by author [FIRST LIMB OF QUEENS CASE] Here, document is not made by [witness] or adopted by [witness] by their signature. As witness is not author – s 19 does not apply. Apply Queen’s case (limb 1) instead. Counsel cannot read the document to the Court unless it has already been admitted. IF YES – made by author Here, yes the document is made by [witness] / adopted/verified by [witness] by their signature/acknowledge on oath (Eg. police witness statement) 2. Is the statement in writing relative to the subject matter? IF YES (MFII) Here, [PIS] is main fact in issue because goes to proving [element of action]. Therefore, s 19 will be applied. Counsel may cross-examine witness without showing the document: s 19(1) QEA. However, witness must be directed to those parts of the document which are alleged to show the inconsistency: s 19(1A) QEA. Court may compel cross-examiner to produce document and court may use it as it thinks fit: s 19(2) QEA (eg. if contents left in a state of confusion by cross-examination) IF witness admits making PIS Here, [witness] has admitted making PIS, thus oral testimony is evidence and don’t need s 19. Only goes to credit of witness. Page 2 of 5

Nick Dowse

Prior Inconsistent Statements in Cross-Examination

IF witness does not distinctly admit or deny that made PIS Here, [witness] has not distinctly admitted or denied that made PIS. Counsel has proved that they made the PIS through the document shown to them. PIS deemed to be truth by virtue of s 19 and 101 (jury directed must accept PIS as true evidence). Weight attached to PIS is matter for the jury: 102 QEA (a) Contemporaneity (time between when PIS made and incident – closer in time, the better); and (b) whether maker of PIS has incentive to conceal or misrepresent facts (eg. knows one of the parties involved in the case) IF NO (COLLATERAL) [SECOND LIMB OF QUEEN’S CASE] Here, [PIS] is collateral not main fact in issue because it is about [credit]. Therefore, s 19 does not apply – apply Queen’s case (limb 2). Cross-examiner must hand document to the witness and must read document in Court (this could be a problem if do not want document read). Normally go to s 101 & 102 after applying s 19, but here went to CL and there’s no CL equivalent of s 101, thus PIS only goes toward credibility of [witness].

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Nick Dowse

Prior Inconsistent Statements in Cross-Examination

Requirements of s 19:  Witness is being cross-examined;  Former statement made in written document;  PIS relevant to the subject matter;  Former statement is inconsistent with present testimony (PIS is made); and  Witness does not distinctly admit or deny that they made the PIS. s 19 QEA – Witness may be cross-examined as to written statement without being shown it (1) A witness may be cross-examined as to a previous statement made by the witness in writing or reduced into writing relative to the subject matter of the proceeding without such writing being shown to the witness. (1A) However, if it is intended to contradict the witness by the writing the attention of the witness must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting the witness. (2) A court may at any time during the hearing of a proceeding direct that the writing containing a statement referred to in subsection (1) be produced to the court and the court may make such use in the proceeding of the writing as the court thinks fit.

‘Written’: In order for a statement to be in written form, it must have been signed by the witness or acknowledged on oath as being theirs. An example of a statement in written form is a police witness statement. Where a written PIS is made, the document itself need not be shown to the witness in advance of the cross-examination on it (s 19(1) QEA). However, the witness must be directed to those parts of the document which are alleged to show the inconsistency (s 19(1A) QEA). It is in the discretion of the court to demand that the document be produced to court (s 19(2) QEA). PIS relevant to main fact in issue: If the contents of the PIS are not relevant to the subject matter, s 19 has no application and s 101 will not apply such that the PIS is deemed to the truth. If the contents of the PIS are not relevant to the subject matter, the cross-examining counsel can still go ahead to prove that the PIS was made, but this only goes against or affects the credit of the witness (e.g. bias). Note that it must satisfy the finality rule. Not required to give witness opportunity to explain PIS: There is no need to give the witness an opportunity to explain the inconsistencies (Savanoff v Re-Car Pty Ltd). Savanoff v Re-Car Pty Ltd  Application for workers compensation, working at Volvo factory  A witness alleged that the injury had been sustained by the claimant in a way different to that alleged by the claimant  What were the main facts in issue? → Was there a safe system of work? Was he injured?  There were a number of written statements that contradicted the witness’s evidence-in-chief  It was held that cross-examining counsel is not obliged to allow a witness the opportunity to explain any inconsistencies between his or her testimony and statements introduced via QEA s 18 or s 19  This is available in re-examination

Court can compel production: However, the court can still compel the cross-examiner to produce the written PIS in court (s 19(2)).

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Nick Dowse

Prior Inconsistent Statements in Cross-Examination

Evidential value of PIS: After the cross-examining counsel proves that the witness made the PIS, s 101 applies such that the contents of the PIS will be deemed to be the truth and the jury will be directed that they must accept that the PIS is true evidence. Weight of evidence: The weight attached to the PIS is a matter for the jury (s 102). Prior to s 19: Previously, there was an obligation for cross-examining counsel to produce the document to the witness (Queen Caroline’s case). Now, pursuant to s 19, there is no requirement to show the witness the document containing the PIS, otherwise, the witness will have time to think about their response.

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