Unfavourable Witnesses

Question 1

What are the three types of witnesses that might be considered unfavourable? 3 limbs

Answer 1

1. Inconsistent
2. Not telling the truth
3. Unreliable, not trustworthy or can’t be believed.

Question 2

If the 1st or 2nd limb, what should the prosecution do?

Answer 2

call them

Question 3

What to do with type 3?

Answer 3

Not required to call as they are unreliable, untrustworthy or otherwise incapable of belief

Question 4

Whitehorn v R HCA state about explanations to not call a witness?

Answer 4

MUST ‘proffer’ a satisfactory explanation or it will be a possible miscarriage of justice.

A reason to not call a witness would be if there were 130,000 witnesses to the same incident. It would be repetitive.

It must be one of the three reasons and you must not proffer an explanation of why to the Court.

Question 5

R v Apostilides HCA says what about not calling a witness?

Answer 5

A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. Not enough for prosecutor to have mere suspicion about unreliable of the evidence.

Question 6

Can a Police prosecutor rely on an OIC’s opinion about an unreliable witness in accordance with R v Apostilides?

Answer 6

No, you must conference them yourself. It must be based on your own observations. Suspicion is not enough

Question 7

What does the case of Jones v Dunkel require you to do so that an inference is not drawn against the prosecution witness?

Answer 7

Inform the Court of the reason for not calling that witness.

Question 8

In Gilham v the Queen 1 of the 4 experts wasn’t called because he was argumentative. Is this a satisfactory explanation?

Answer 8

No, the crown did not conference the witness and Di don’t give a reason why. The Crown did make the witness available for defence but this is not sufficient.

Question 9

What is a Jones v Dunkel inference?

Answer 9

Where a witness is available to give evidence and the Crown decide not to call that person and do not offer a satisfactory explanation for it, the jury is entitled to draw an inference that his or her evidence would NOT have assisted the Crown case.

Question 10

What is section 38 of the Evidence Act?

Answer 10

It outlines the way in which unfavourable witnesses can be dealt with

Question 11

What are the three grounds to challenge a witness evidence in chief?

Answer 11

1. Unfavourable
2. Witness no genuine attempt
3. Prior inconsistent statement

Question 12

What must you do when you realise a witness in unfavourable?

Answer 12

Notify the Court immediately.

Question 13

What must you tell the Court about which section of 38 you rely on?

Answer 13

You must nominate a section and then cross examination is limited only on the grounds under which leave is granted.

So if you sought leave under subsection a) you would be limited by this

Question 14

What sub section of 38 dictates that you MUST inform the Court as soon as you become aware of an unfavourable witness?

Answer 14

Subsection 6

Question 15

What does sub section 6) b) state? Of 38.

Answer 15

Tell the Court if you don’t cross examine them, the defence are not likely to.

Question 16

What are the considerations under section 192(2) for a Court to grant leave for a s38 application?

Answer 16

• the extent it would lengthen or shorten the matter
• the extent it would be unfair to a party
• the importance of the evidence
• the nature of the proceedings
• power of Court to adjourn hearing or to make another order for the evidence.

Question 17

What does unfavourable mean as per Lozano CCA case?

Answer 17

Unfavourable means not favourable

Even neutral evidence may satisfy the meaning of unfavourable

Question 18

Did Lozano CCA case expand to bad attitude of the witness permitted a s 38 unfavourable application?

Answer 18

In the appeal it was held that where an attitude of the witness to a party calling them is unfavourable they may be able to make an application.

Question 19

What would be an example of an application under 38(1)(b)?

Answer 19

Not making a genuine attempt to give evidence. Witnesses who are unwilling or deliberately avoiding giving evidence.

Question 20

What would be an example of an application under section 38(1)(c)?

Answer 20

Prior inconsistent statements - doe snot have to be in a statement form. It just has to be a previous representation.

Question 21

What is the application of section 43 of the EA with section 38?

Answer 21

Section 43 outlines the rules for cross examining a person about prior inconsistent statements. This is why it is good to adduce statements from witnesses through the OIC and mark them fro identification

Question 22

Does section 43 permit you to re-open your case to call evidence about the making of a statement?

Answer 22

Yes subsection 3.

Question 23

What does 43(2) state?

Answer 23

Must ensure that the witness knows which document or prior statement you are referring to and point out the inconsistencies.

Question 24

What does section 42 permit?

Answer 24

The use of leading questions

Question 25

When are leading questions not permissible?

Answer 25

Under section 42(3) where the evidence would be better ascertained if leading questions were not asked.

Question 26

When can the prosecution cx their own witness?

Answer 26

• when the Court permits it

- before the other party cx’s them.

Question 27

What is the Fowler case about?

Answer 27

It is a NSWSC case.
Where a section 38 or unfavourable issue arises, even if it is after the defence have cross examined it may in certain circumstances be permissible to cross examine after the defence.

Question 28

What is the Burrel v R case about?

Answer 28

That in certain cirumstances the prosecution may cross examine their own witness after the defence.

Question 29

Do you tender the statement when making an application under section 38?

Answer 29

Yes, it is best practice to do this.

Question 30

What application can Section 60 have when a statement is tendered under section 38?

Answer 30

In for one, in for all.

Question 31

What is section 60 of the EA?

Answer 31

Evidence relevant for a non hearsay purpose

The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant fo ra purpose other than proof of an asserted fact.

Question 32

What is the case of Adams v The Queen HCA about?

Answer 32

Section 60 now permitted statements that had been tendered not only to be relied upon as the person having told a prior inconsistent statement but can now rely on them as evidence of truth of the prior statement.

Question 33

According to the GAC case, what part of the PIS prior inconsistent statement should be examined?

Answer 33

The full PIS.