Unfavourable Witnesses

Published by Geoff Harrison | 6 October 2023

Section 38 of the Evidence Act 1995 ('the Act') allows a party who called a witness, with leave of the court, to cross examine that witness about:

(a) evidence given by the witness that is unfavourable to the party, or

(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or

(c) whether the witness has, at any time, made a prior inconsistent statement.

If the court grants leave, the court will generally grant leave to cross examine on a specific line of questioning however, the court can allow a party to cross-examine at large (see R v White). When considering whether to grant a party leave to be able to cross-examine that party's witness, the court is to consider the factors within s192 of the Act (see Stanoevski).

Other Sources:

• Criminal Trial Courts Bench Book: Unfavourable Witnesses

• The curse of the uncooperative Crown witness by Troy Evers PD, 11 March 2023

Cases:

• R v Geeves; R v Geeves (No. 6) [2024] NSWSC 99

• Adam v R [2001] HCA 57

• R v Xie (No 16) [2015] NSWSC 2127

• Doyle v R; R v Doyle [2014] NSWCCA 4 (see [291] - [315])

• Kaddour v R [2019] NSWCCA 90

• R (Cth) v Petroulias (No. 29) [2007] NSWSC 1005

• R v Le [2002] NSWCCA 186

• Kanaan & v R [2006] NSWCCA 109

• KH v R [2014] NSWCCA 294

• Lane v R [2013] NSWCCA 317

• Odisho v R [2018] NSWCCA 19

• R v Parkes [2003] NSWCCA 12 (Where unfavourable evidence led in cross-examination)

• R v White [2003] NSWCCA 64 (see [66] re cross-examining at large)

• Power v The Queen [2014] VSCA 146 (cross-examination of co-accused re his plea)

• DPP v Garrett (a Pseudonym) [2016] VSCA 31

• Stanoevski v R [2001] HCA 4

Extracted Legislation:

EVIDENCE ACT 1995 - SECT 38 Unfavourable witnesses

Unfavourable witnesses

(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about-

(a) evidence given by the witness that is unfavourable to the party, or

(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or

(c) whether the witness has, at any time, made a prior inconsistent statement.

(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).

(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness’s credibility.

Note-: The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.

(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.

(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.

(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account-

(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and

(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

(7) A party is subject to the same liability to be cross-examined under this section as any other witness if-

(a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and

(b) the party is a witness in the proceeding.

EVIDENCE ACT 1995 - SECT 192 Leave, permission or direction may be given on terms

Leave, permission or direction may be given on terms

(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:

(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and

(b) the extent to which to do so would be unfair to a party or to a witness; and

(c) the importance of the evidence in relation to which the leave, permission or direction is sought; and

(d) the nature of the proceeding; and

(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.