Introduction

Witnesses who aren’t onside can shake up court cases in New South Wales big time. They might say things that totally poke holes in the side they should be helping. Sometimes they mix up their stories or just won’t back up the team they’re supposed to be on. This throws a spanner in the works for legal game plans, making it a real nail-biter in the courtroom. If you’re curious about how courtroom dramas unfold, stick around.

Effectively managing such witnesses is essential for legal practitioners to maintain the integrity of the proceedings and ensure that justice is upheld. This guide explores the challenges associated with unfavourable witnesses and outlines strategies for their effective management within the framework of the Evidence Act 1995 (NSW).

Definition of Unfavourable /Hostile Witnesses

What Is a Hostile Witness?

A hostile witness is one who does not support the party that called them and provides evidence that is adverse or unfavourable to that party’s case. This unwillingness to assist the calling party can manifest in various ways, such as refusing to answer questions, providing incomplete or dishonest testimony, or presenting information that contradicts previous statements. It is important to note that a witness is not deemed hostile simply because they are forgetful or lack enthusiasm; their hostility is characterised by their reluctance to provide truthful and supportive evidence.

Characteristics of Unfavourable Witnesses

Unfavourable or hostile witnesses exhibit several key traits that distinguish them from cooperative witnesses. These characteristics may include:

• Inconsistencies in Testimony: Providing statements that contradict previous accounts or established facts, undermining the credibility of their evidence.
  
• Reluctance to Cooperate: Showing hesitance or refusal to answer questions, thereby impeding the progress of the case.
  
• Unwillingness to Support the Calling Party: Offering evidence that does not align with or actively opposes the interests of the party that has called them.
  
• Appearance of Dishonesty: Demonstrating behaviours that suggest intentional deceit or manipulation of the truth, further challenging the integrity of their testimony.
  

These traits significantly impact the dynamics of legal proceedings, necessitating effective strategies for managing and cross-examining such witnesses.

Legal Framework: NSW Evidence Act Provisions

Section 38 of the Evidence Act 1995 (NSW)

Section 38 of the Evidence Act 1995 (NSW) permits a party to cross-examine a witness as if they were hostile —meaning the party can ask leading questions and challenge the witness’s credibility—provided the court grants leave. This provision is crucial when the evidence given by the witness does not support the party that called them.

Under Section 38, the party may question the witness about:

• Evidence unfavourable to the party: Any statements made by the witness that contradict the party’s case can be scrutinised to undermine their support.
  
• Genuine attempts to provide evidence: If the witness appears not to be making a genuine effort to support the case, the party can investigate this reluctance.
  
• Prior inconsistent statements: The party can explore any previous statements by the witness that conflict with their current testimony, which may affect the witness’s credibility.
  

The court ensures that the application of Section 38 is fair and not abused, often limiting the scope to maintain the integrity of the proceedings.

Section 43 of the Evidence Act 1995 (NSW)

Section 43 of the Evidence Act 1995 (NSW) outlines the procedure for dealing with prior inconsistent statements made by witnesses during cross-examination. This section allows such statements to be used to challenge the credibility and consistency of a witness’s testimony.

Key aspects of Section 43 include:

• Cross-examination about prior statements: Witnesses can be questioned about prior inconsistent statements, even if complete details of the statement or the document containing it have not been shown to them.
• Adducing evidence of the statement: If the witness denies making the prior inconsistent statement during cross-examination, the cross-examiner may introduce evidence of the statement, provided they first inform the witness of enough details about its context to identify it and highlight the inconsistencies with their current testimony.
• Re-opening the case: A party may re-open their case to adduce evidence of the prior inconsistent statement when necessary.

This section plays a pivotal role in criminal proceedings by allowing lawyers to effectively cross-examine hostile witnesses and highlight inconsistencies that may impact the case’s outcome.

Rules for Cross-Examination

Cross-Examination Techniques

Effective cross-examination of hostile witnesses involves several key techniques:

• Question Formulation: Develop clear and focused questions that target inconsistencies in the witness’s statements. This helps to undermine their credibility and highlight any discrepancies.
  
• Handling Evasive Responses: Stay persistent and direct when a witness attempts to avoid answering. Redirect the witness back to the relevant topic without getting sidetracked.
  
• Maintaining Control: Keep the examination structured and prevent the witness from steering the conversation off-topic. This ensures that the cross-examination remains effective and relevant.
  

Limitations and Boundaries

When cross-examining hostile witnesses, it’s important to observe legal limitations to ensure fairness:

• Permissible Scope: Questions should be relevant to the witness’s credibility or the evidence presented. This maintains the integrity of the legal process and avoids unnecessary confrontations.
  
• Preventing Abuse: Avoid overly aggressive questioning that could be seen as harassment or intimidation. The court monitors the examination to prevent any form of abuse.
  
• Legal Boundaries: Adhere to the Evidence Act 1995 (NSW) to prevent the introduction of irrelevant or prejudicial information. Ensuring compliance with legal standards protect the fairness of the proceedings.
  

Declaring a Witness Hostile

Criteria for Declaration

A witness may be declared hostile in NSW courts when specific conditions are met. To qualify for a hostile declaration, the following criteria must be satisfied:

• Unfavourable Evidence: The witness provides evidence that is detrimental to the party that called them. However, this is not a standalone criterion.
  
• Unwillingness to Tell the Truth: A witness is considered hostile if they demonstrate an unwillingness to tell the truth, not simply because they give unfavourable evidence. For instance, a witness who is forgetful or unenthusiastic isn’t automatically classified as hostile.
  
• Reluctance to Cooperate: The witness appears unwilling to make a genuine attempt to support the case, indicating a reluctance to provide helpful evidence.
  
• Inconsistent Statements: The witness has previously made statements that contradict their current testimony, and these inconsistencies cannot be reasonably explained by other genuine factors. While past inconsistencies don’t automatically make a witness hostile, they are considered by the court. The court examines the significance of the inconsistencies and whether they can be attributed to innocent explanations like lapses in memory or lack of intelligence.
  

The court assesses whether these inconsistencies are significant and whether there are innocent explanations for them before declaring the witness hostile.

Application Process

To have a witness declared hostile, a party must follow a specific application process outlined in the Evidence Act 1995 (NSW):

1. Hostile Witness Application: The party that called the witness must file an application requesting the court to declare the witness hostile.
2. Providing Evidence: The application must include evidence supporting the claim that the witness is hostile. This may involve presenting prior inconsistent statements or demonstrating the witness’s reluctance to provide supportive evidence.
3. Court Review: The court reviews the application and the submitted evidence to determine whether the criteria for hostility are met. The judge may grant leave for cross-examination as hostile, allowing the party to question the witness more rigorously.
4. Cross-Examination: Once declared hostile, the party can cross-examine the witness accordingly, either ‘at large’ or within specific limits set by the court.

It’s important to note that the court has the discretion to declare a witness hostile even without a formal application, based on the circumstances presented during the proceedings.

Handling Prior Inconsistent Statements

Admissibility of Prior Statements

Prior inconsistent statements can be pivotal in cross-examining a hostile witness. Under the Evidence Act 1995 (NSW), prior inconsistent statements are admissible, provided they meet certain legal criteria. These statements must be:

• Relevant: As per Sections 55 and 56: Evidence must be relevant to a fact in issue to be admissible. Relevance means that the evidence has the potential to rationally affect the assessment of a fact in the case.
• Proven: Under Section 43, a party may cross-examine a witness on a prior inconsistent statement they made. If the witness denies making the statement or does not sufficiently admit it, extrinsic evidence (e.g., testimony from a police officer or a document containing the statement) may be introduced to prove the statement, provided the witness is provided an opportunity to respond to it.
• Use of Prior Statements as Evidence of Truth: If a prior inconsistent statement is relevant, it is not excluded under the hearsay rule, in terms of Section 60. This means the statement may be used both to challenge the witness’s credibility and as evidence of the truth of the facts it asserts.

The court assesses the admissibility of prior inconsistent statements to ensure they are pertinent and trustworthy, thereby strengthening the case against the hostile witness.

Strategies for Presenting Inconsistent Statements

Effectively presenting prior inconsistent statements during cross-examination involves several strategic approaches:

• Highlighting Discrepancies: Point out specific inconsistencies between the witness’s current testimony and their previous statements. This undermines the witness’s credibility and casts doubt on their reliability.
  
• Using Documented Evidence: Introduce documented prior statements, such as sworn affidavits or official records, to substantiate the inconsistencies. This provides concrete proof that the witness’s current testimony is unreliable.
  
• Questioning Methodically: Structure questions to lead the witness to acknowledge the inconsistencies. Start by confirming the prior statement and then contrast it with their current testimony to expose contradictions.
  
• Maintaining Control: Keep the cross-examination focused and avoid giving the witness opportunities to explain away the discrepancies. This ensures that the inconsistencies remain the focal point.
  

By employing these strategies, practitioners can effectively leverage prior inconsistent statements to challenge the testimony of hostile witnesses, thereby enhancing the strength of their case.

Conclusion

Effectively managing unfavourable witnesses is essential for upholding the integrity of legal proceedings in New South Wales. By understanding the characteristics and legal frameworks surrounding hostile witnesses, legal practitioners can adeptly navigate challenges and ensure that justice is served.

Legal professionals play a crucial role in utilising provisions such as Section 38 of the Evidence Act 1995 (NSW) to cross-examine and assess the credibility of adverse testimony. Their expertise in handling unfavourable witnesses safeguards the fairness of court proceedings and reinforces the pursuit of truth within the justice system. Resolve your legal concerns with confidence—call us now.

Frequently Asked Questions