Re -Exam - Structure or Answer PDF

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Re-examination – Structure of Answer...

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Nick Dowse

Re-examination

Re-examination – Structure of Answer The purpose of re-examination is for the party who originally called the witness to clear up any matters left unclear or ambiguous at the conclusion of cross-examination, and to add material without which a distorted view of the witness’ evidence would remain (Wojcic v Incorporated Nominal Defendant). General rules: The same restrictions applicable in evidence- in-chief are applicable in re-examination.  That is, counsel cannot cross-examine (i.e. ask leading questions of your own witness)  Re-examination is not an opportunity to restate all the things raised in examination-in-chief  Counsel cannot pick up something he accidentally left out in examination-in-chief Re-examination is restricted to matters raised in cross-examination, so counsel cannot introduce new materials. Fundamental objectives during re-examination  Clarify matters left in confusion following cross-examination  Repair credit of witness  Counsel in re-examination had the advantage, as the answers given in re-examination have the last theatrical impact of the questioning. If evidence can clarify or explain a matter, it is permitted, even if it is inadmissible otherwise.  An example of this is self-serving statements (e.g. prior consistent statement) to rebut afterthought (Nominal Defendant v Clements).  The evidence will be admissible even if it is damaging to the other side (Singleton). Singleton  S was charged with drug offences – it was alleged that he received some sort of prohibited drugs  The Crown called a witness and during examination-in -chief, he gave evidence that S committed the offence, had knowingly received the dangerous drugs and paid money for them  During cross-examination, defence counsel had a PIS by the witness where he had virtually exculpated S  This was adduced into evidence by s 18 QEA which was enlivened by the witness admitting that he had made the PIS but denied that it was true  The weight had to be assessed under s 102 – motive of the witness relevant for why they made the PIS  Crown re-examined the witness to repair the credit of the witness – had to explain the PIS if they could  Asked witness to tell circumstances in which made statement – A: “Well I made it in collaboration with the accused, S, and his wife, and the reason I did that was because I was scared and I was prepared to write anything that they wanted me to.” Q: “Why were you scared?” A: “The appellant is a bad man and he carries firearms and he is accustomed to use them, and bash people up and generally be a dreadful person…”  Held: Generally, such evidence of other crimes committed by the accused and evidence of a general bad character is inadmissible  Therefore, the Crown cannot attack credit of accused in its case  But as there had been cross-examination of the witness about a PIS, the Crown was entitled to repair the witness’ credit in re-examination  The witness explained why they made the PIS so that the tribunal of fact could assess its weight  When looking at why the PIS was made, it is necessary to explain that the accused is guilty of what would otherwise be inadmissible criminal activity  Hence, the Crown managed to get into evidence highly prejudicial evidence of the activities of S

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Nick Dowse

Re-examination

RE-OPENING AND REBUTTAL EVIDENCE Generally, it is all over in re-examination, because all evidential matter that the Crown or plaintiff intends to rely upon is to be adduced before the close of the Crown/Plaintiff’s case. However, it is possible that rebuttal evidence might be called to counter something that is bottled up during reexamination. Fundamental Rule: Rebuttal evidence is only permitted in exceptional circumstances. It would only be in very unusual circumstances that a court will allow a party to bring rebuttal evidence ( Shaw).

Rationale: The rationale is fairness to accused/Defendant to know the case to be met. Allowing parties to continue giving evidence may cause an imbalance in the trial process and result in potential unfairness. Further, the last evidence to be heard may assume disproportionate significance (Chin). Chin  Mr Chin and Mr Chu charged with being unlawfully involved in the importation of heroin  Mr Chin would bring drugs into the country, take it to the Hotel room in Sydney, where he was met by Mr Chu who would take it away and realise the proceeds  Chin was observed at Sydney Airport carrying drugs  He was allowed to go to Hotel – where the police busted them at the hotel  Chin argued that he had never heard of Mr Chu, and that an acquaintance had given him a package he was carrying to Sydney  In Chu’s defence, he argued he had never heard of Chin – he argued that he was told that if he went to Chin’s door then someone would show him around Sydney  But on the visa applications both used the same phone number as an emergency contact  It was Mr. Chin’s father in law’s escort agency phone number  This inferred that they did know one another prior to coming to Sydney  The Crown waited until case was closed  Chin gave evidence – he put these forms to Chin and it was only at that point the Crown tendered the visa application  Held: Once a case is closed it is too late to get the evidence in  Suggestion in this case that there is a slightly less rigorous rule applying to cross examination on rebuttal matter  A very strict view that they would not be allowed even in circumstances even where they were PIS relevant to the subject matter and not distinctly admitted by the witness

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Nick Dowse

Re-examination

Exceptions Leave will be given where: Where rule in Browne v Dunn has been breached: When a party has been cross-examined in breach of the rule in Browne v Dunn, the trial judge can allow rebuttal evidence to be called by the party that is being cross-examined. This has a very significant effect as it will be the last evidence the tribunal of fact hears on the point.

Prior inconsistent statements of witness: As s 18 QEA allows a PIS to be proved as to the truth of its contents if the witness does not admit the PIS, the question arises as to whether the witness can prove or disprove the PIS. It is up to the discretion of the court to weigh up the probative force and prejudicial effect and determine whether it would be fair to allow rebuttal evidence in relation to the PIS ( Neville).

The court should take into account the following considerations –  Nature of evidence given by witness  Circumstances of making PIS including reliability  Fairness of allowing a statement at such a late stage, given evidential effect of s 101 QEA If the Crown could have led the rebuttal evidence during evidence in chief (i.e. it was reasonably foreseeable that the issue may have arisen) then that evidence will not be allowed in re-examination (Soma; Cheney). Formally prove a matter that cannot be denied Formal or technical defects: Where there is a technical defect in the way the case is carried out, the court may grant leave to allow rebuttal evidence (Brown).

Brown  The proceeds of drug money was proven to be in a bank account  After the Crown closed their case, they realised that they actually did not prove that the accused had access to said bank account  The Crown sought leave to call the bank manager  Here, it was granted – it was not going to create a major shift in the argument but it was going to create what the court considered to be a technical defect  The bank manager was able to be called to given evidence to tie up all the information

Where defendant carries legal burden of proof: The Crown does not have to anticipate and call evidence in advance or in anticipation to the raising of the issue where the defence carries the legal burden of proof (Pateman). Examples include issues involving the witness’ insanity, or evidence of good character.

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Nick Dowse

Re-examination

In exceptional circumstances: In exceptional circumstances, where the Crown or plaintiff could not reasonably foresee the raising of the issue, evidence can be called to rebut the issue raised (Shaw). An example might be where there was a witness at the murder scene that no one knew about. Shaw  S was charged with murder and the circumstances were that he was alleged to have throttled his partner  The Crown case consisted of an allegation that he had said to one of the police who came on the scene shortly after the alleged killing “why don’t you go out and find the fella who throttled Silvia. Find the bastard who throttled Silvia.”  The argument was advanced by the Crown that the accused therefore revealed in that statement knowledge about the way the deceased had been killed which was not available to anyone else because at the time that he said that the medical examiner had not been called and it was not known until later when the postmortem examination was conducted that the deceased had been throttled  The Crown closed its case and the defence then elected to give evidence and they called the accused and the accused said “I did say that but the reason I knew that Silvia had been throttled was because one of the police officers at the scene had told me that or I had overheard the policeman talking at the scene and one must have told another about that”  The defence then closed their case  The Crown then sought to call further evidence – the Crown sought to reopen its case to call evidence rebutting what had been said by the accused – the way they sought to do that was to call every single one of the policeman who attended the scene that night to give evidence that they hadn’t spoken to the accused that night to tell him how the deceased had met her death because they didn’t know themselves how she had met her death  The application was granted and Shaw was convicted – he appealed on the grounds that the Crown should not have been allowed to call further evidence  Held: High Court held that you can only call rebuttal evidence only in exceptional circumstances  The court effectively held that that meant that if the Crown couldn’t reasonably have foreseen what was going to be raised by the defence in their case the discretion of the trial judge to allow evidence of rebuttal would be properly exercised  The party who carries the legal burden of proof is expected to call all their evidence before the defence decides whether or not they will go into evidence and the Crown can only call rebuttal evidence in exceptional circumstances (i.e. where they couldn’t reasonably foresee that the defence would raise that point in their evidence)

Chin  The Crown should have called certain evidence in their case and didn’t do so  They should have foreseen a need to make a connection between offenders in Malaysia who all had the same contact phone number on their passports  In that case, Crown Prosecutor was not allowed to call for rebuttal evidence because it should have been foreseen that there was a problem or that it was problematic and they should have been able to explain it away during examination-in-chief  This was not considered sufficiently exceptional in order to call rebuttal evidence

Alibi evidence and s 590A Criminal Code: Section 590A Criminal Code requires that, within 14 days after the committal hearing, an accused who intends to rely on an alibi at trial must give a notice to the Crown setting out details of the alibi and the witnesses who will be called to support it (Kern).

Kern  The Crown couldn’t lead the evidence in their own case because the evidence consisted of a PIS of an alibi witness

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Nick Dowse

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Re-examination

The alibi witness called by K (who was charged with rape) After the close of the Crown case, K opened the defence case and called his girlfriend who testified that K was with her at the time of the offence She was then cross-examined by the Crown and the Crown had a PIS by her in which she had said to X (another person) ‘K’s a bastard, he has dumped me and hasn’t been around for weeks’ The Crown could not have called X to say that the girlfriend had said that because it is just hearsay and has no meaning for the jury in the Crown case Section 18 says that if a witness is cross-examined about a PIS relevant to the issues (which this is because it is relevant to whether the accused had opportunity), and witness didn’t distinctly admit that they had said it, can the Crown call it in rebuttal even if they could not have called it in their own case as of right? Held: No – the same rules apply to s 590A. Overriding principle was fairness – the court here held that because it was a relatively trifling bit of evidence to destroy the credit of the witness it would be unfair to call it in rebuttal

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