Introduction
The most important objective in any matter is to persuade the judge or jury that your case is a worthy one. Generally if a witness has done no damage to your case then there is no need to cross-examine the witness. However the recent amendments to the Evidence Uniform Act introduced significant reforms to the common law with regard to the unfavourable witness/ hostile rule. These reforms were enacted after deliberated assessment and conversation in hopes to unify evidence law in Australia and gives the prosecution and defence parties the option to cross examine their own witness following the witness being declared unfavourable.
The amendments made to the Uniform Evidence Act have significantly altered the common law with regard to hostile witnesses and subsequently enhanced the duty of the prosecution to call witnesses. The amendments have provided a broader scope insofar as cross examination of a witness is concerned and the admission of evidence which ordinarily would not be admitted if not for the application of section 38. The amendments encourage the calling of witnesses rather than being discouraged by a weakening case depending on the angle of the witness. The introduction of unfavourable witness can be a positive and a negative for both the prosecution and defence parties. Correctly, the amendments are significant and have largely changed the position at common law.
Unfavourable Witness v Hostile Witness
The changes made under the Uniform Evidence Act were largely influenced by common law, notwithstanding these changes were the result of the abolishment of the common law rule of ‘hostile witness’ and replaced with the statutory provision under section 38 of the Act to be ‘unfavourable witness’.
The changes made to the Uniform Evidence Act resulted in substantial differentiating factors between the rule of an unfavourable witness under the UEA and the rule of a hostile witness at common law. Although there are many defining similarities between the two, the changes are evident when considering the purpose of the rules and further their application in court.
At common law a witness could only be cross-examined where it was satisfied that the witness was ‘hostile’. For a witness to be found hostile, the court had to be satisfied that the witness is unwilling to tell the truth. On the contrary, the provision under statute law does not need to satisfy this element in the first instance but rather satisfy inconsistencies with regard to evidence. Unfavourable does not necessarily refer to the witness but rather the evidence whereas the hostile rule refers to the witnesses themselves being found hostile.
Hostile Witness
A witness can be considered by the Court to be ‘hostile’ if the witness demonstrates an unwillingness to tell the truth in relation to matters of importance to the trial case. The common law rule was designed in a way to not discredit the witness, which can be a notable difference between ‘hostile’ and ‘unfavourable’ at common law and statute law. It has been seen to be a provision that is often not likely to be proven in many situations and therefore it was further discouraged from being used.
The rule is justified on the basis that if the party has reason to consider that the witness called is not believed on his oath then the party has no business to try and support their case by that witness’ evidence. When a party calls a witness it is generally with the expectation that the witness will give evidence in favour of that parties case.
Unfavourable witness and Cross-Examination
The ‘unfavourable witness’ provision although not defined under the Act refers to evidence rather than the character of a witness. The provision does not require a court to be satisfied that the witness is unfavourable but rather the ‘evidence given by the witness is unfavourable to the party.’
There have been many cases that have considered when a witness is considered hostile or unfavourable. The court can grant leave if the following requirements are satisfied;
1. Evidence the witness gives that is unfavourable to the party;
2. Matters about which the witness may reasonably be supposed to have knowledge, and which it appears the witness is not making a genuine attempt to give evidence about; or
3. Whether the witness has, at any time, made a prior inconsistent statement
R v Le was one of the first cases to consider section 38 and its application. The case provided many bases for the application of section 38. For example, cross-examination under s38 must be about one of the three matters listed above but are not limited to directly questioning the witness about one of the three subsections. A party may question the witness about topics related to the above. “A party may also (with the leave of the court) question the witness about matters relevant only to the witness’ credibility, with a view to shaking the witness’ credibility on the listed matters.”
The ‘unfavourable witness’ rule under statutory law now allows a witness to be cross-examined to the extent to prove credibility. The hostile witness rule does not provide the same. The element of prior inconsistent statement is a largely important element to section 38 and in comparison to the common law rule, differs with regard to the admission of a prior inconsistent statement.
At common law the hostile witness rule required a particular need for directions on the weight of the evidence when the prior statement was more damaging to the accused than the witness’ evidence in court, whereas on the contrary, at statute law when a grant of leave is applied under section38 it does not counteract the witness’ evidence or render it inherently worthless. ‘The jury must decide what weight it will place on the witness’ evidence in light of any inconsistent statements and any other matters that may affect the witness’ reliability.’
What does s38 accomplish?
The major alterations to the Uniform Evidence Act have affected the way in which a case can proceed in a court with regard to a witness. The first difference is the circumstance in which cross-examination can be allowed and further the application of evidence obtained from the cross-examination.
In practice, the issue of a witness being hostile or unfavourable will generally arise in the course of examination-in-chief at that point where the examiner concludes that the witness is unwilling to tell the whole truth having regard to the test for hostility . The questioning party must always elicit non-leading questioning of the witness. If the witness is not forthcoming with their answers, for example the witness answers a questions with ‘yes, but nothing else happened’ the questioning party is expected to ask further open questions in an attempt to get to the information needed. Further if a witness does not recall, it is expected that the prosecution or defence would seek leave to the court in an attempt to refresh the witness’s memory by presenting there past statement for example. Again if no evidence is established the party will then seek leave to the court for the witness to be cross-examined under section 38 which takes away the requirement of non-leading questions.
The rule at statute law has enabled the admission of evidence that would not be admitted at common law. The effectiveness of s38 of the UEA can be demonstrated with in Randall v The Queen with particular regard to the admission of evidence that would otherwise not have been admitted. Randall v The Queen and R v Milat provide positive evidentiary value with regard to the application of section 38. They have demonstrated the effectiveness insofar as evidence being admitted when it would not otherwise have been and further, cross-examination.
In Australia all the States and Territories are not completely unified under the Uniform Evidence Act 1968. There are jurisdictions that have mirroring Acts such as NSW, VIC, TAS, ACT and NT. Queensland, South Australia and Western Australia operate under the rule of ‘hostile witness.’
Why the changes + what were the reforms (2005 reforms)
Similarly to any review for reform, there were issues that needed to be rectified with regard to the application of Evidence, with further reference to witnesses. An initial report by the ALRC was made under the interim report 26 which made references for the unfavourable witness rule to be considered. It was suggested that ‘a party should be able, in re-examination, to tender prior inconsistent statements of a witness it has called and fully question such a witness as if in cross-examination, both on the prior statement and as to credibility.’ Critics considered the hostile rule to be irrational and anachronistic. It was suggested that the hostile rule had limitations on the application of evidence law.
Justice Tim Smith and Paul Holdenson QC discussed the arising limitations with the rule of a hostile witness. It was mention that the rule limited actions against a witness who gives evidence which is either damaging to their case or in favour of their opponents matter. Further this discouraged the calling of witnesses. At common law there was limited remedies for situations in where a witness cannot recollect the events of a matter or were unfavourable to the party who brought the witness. This issue was addressed with the introduction of Section 38 of the Uniform Evidence Act, which provides for a witness to be declared unfavourable and subsequently abrogating the rule at common law.
The interim report made reference to hostile/unfavourable witness and discussed the changes to potentially unify evidence laws under state and federal courts. The suggested changes were in hopes to comprehensive uniform law to modernise and clarify the existing rules of evidence. Amendments were passed with regard to the manner of presenting evidence and were further discussed in the report under ‘examination in chief’ with the proposal of the leading questions and unfavourable witness provisions and further the cross examination of witness on prior statement. It was suggested that the position with regard to leading questions should be amended to allow for leading questions to be put to a witness in relation to introductory matters and matters not relating to the subject dispute.
With regard to the hostile rule, there were many issues was discussed in the interim report for review. Many of these supported the introduction of the unfavourable witness rule as it broadened the rule of that at common law. Under common law the limitations discouraged practitioners from using the rule in their cases. The limitation on cross-examining a witness discouraged any thought to call an opposing party. As discussed, a witness can only be cross-examined if declared hostile which was/is a difficult task especially if an opposing party called the witness. The witness would be expected to give evidence that does not support the party calling him.
The deprivation of evidence was also a concern in that parties would not call highly regarded witnesses due to the knowledge of the witness having evidence in favour of both the prosecution and the defence. This discouraged either party from calling a witness.
A further disadvantage of the law before the amendments was the potential for a Court to be deceived by a corrupt or dishonest witness. A corrupt witness may give false evidence and be prepared to lie plausibly about the reasons for changing his evidence from that which was expected. In this particular situation the party that called the witness, especially, if taken by surprise, will have great difficulty persuading the court that the witness is ‘hostile’.
Have the changes to s38 Improved the position of that at common law
● FROM A PROSECUTIONS AND DEFENCE POV HAS IT IMPROVED
It is important to analyse whether the introduction of ‘unfavourable witness’ has improved the position to that of the common law rule from the perspective of both prosecution and defence.
The introduction of s38 was largely influenced by the common law rule of hostile witness. The changes enacted under the Uniform Evidence Act were greatly mirrored around Australia in respective States and Territories. The changes in comparison have improved the position of both prosecution and defence in court cases. The limitation concerns evident at common law were previously discussed. It can be appreciated that when put in context the disadvantage from not having a credible witness present due to provisions being difficult to be met, can be critical to either parties matter and in particular their client. “Where a party calls a witness who gives evidence in part unfavourable to that party it is not possible for that party to effectively cross-question the witness unless the witness is declared ‘hostile’.”
It is more difficult for a witness to be found hostile than unfavourable. The threshold for a witness to be hostile is much higher than to have a witness declared unfavourable. The broad scope of the unfavourable witness provision is a positive in criminal and civil matters. With a lower threshold and wider options with the leave of the court these benefit the party calling the witness. A witness is called to prove a particular fact. An unfavourable witness fails to prove a fact or proves an opposite fact. A party can therefore seek leave to the court to cross-examine the witness about the evidence that was given which is unfavourable to the party. It is reasonable to expect complications with any provision in a criminal or civil court case for either party. If the prosecution and/or defence party are surprised by their witness’s omissions and the provision under section 38 allows them to cross-examine the witness further to clarify, where possible, the witness’s statement in a way to support their case. This is a disadvantage to the opposing party to a certain extent. The ‘unfavourable witness’ provision increases the duty of the judge or jury to consider with more detail the credibility of a witness and more evidence.
With granted leave of the court, the questioning of a witness can be made about matters relevant to the witness’s credibility.
Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that:
a) is relevant only because it affects the assessment of the credibility of the witness or person; or
b) is relevant:
i. because it affects the assessment of the credibility of the witness or person; and
ii. for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.
This is a provision that greatly improved the common law position. The admission of a witnesses evidence to be put forward as an assessment to the credibility of a witness or person is a positive aspect for prosecution or defense in providing the Judge or Jury with evidentiary material that the witness’s is difficult to rely on because of prior inconsistencies.
Conclusion
The changes made under the Uniform Evidence Act were largely influenced by common law but have now abrogated the common law rule of “hostile witness.” The introduction of ‘unfavourable witness’ from the point of view of prosecution and defence provide for more scope when dealing with witnesses. The ‘unfavourable witness’ provision encourages the prosecution and defence to call witnesses, the credibility of a witness can assessed, and further evidence that would not normally be admitted and sometime important to the case, now can be. These are all-important in the development of evidence and go to the fairness of a criminal or civil trial. It is not reasonable to have limitations effect parties calling witnesses and further subject the court Judge or Jury being deprived of evidence due to the position faced by either party. Following the review the amendments have successfully addressed the concerned and issues faced under common law and provide a wider scope in the examination of witnesses.