Hostile Witnesses in Jurisdictions Covered by the Uniform Evidence Acts - Essay Example

LWZ316 Evidence Law ASSIGNMENT Word length: 2000 – 2,500 words (2,500 being the absolute maximum).1 Due Date: Wednesday 13 April 2011 at 11.59pm (Darwin time). Weighting: 30% (of total marks for Unit; ie, 30/100 marks). This assignment requires you to answer the following questions. Your answers should be supported comprehensively by relevant legal authorities, including legislation, case law, law reform commission reports, journal articles and texts. Note: Students can work individually or in a group of no more than two students (ie, you and one other). If you work in a group, only one assignment should be submitted through Learnline, with the names of both students noted on the Assignment Cover Sheet. Assignment Questions: Read the following and answer the following questions At common law, ‘the calling of a witness known to be hostile for the sole purpose of getting before the jury a prior inconsistent statement which is inadmissible as evidence of the truth of the matters asserted is improper and may well give rise to a miscarriage of justice’.2 1 Discuss whether this proposition applies in jurisdictions covered by the uniform Evidence Acts. 2 Discuss whether the uniform Evidence Act’s approach to ‘unfavourable witnesses’ is preferable to the common law approach to ‘hostile witnesses’.2 Marking Criteria: Your assignments will receive a mark out of 100. This mark will make up 30% of your mark for LWZ316. The mark allocation appears below. For details on what is expected to achieve the various grade bands (HD, D, C, P, F), see the General Assessment Rubric – Assignment, which follows. Hostile Witnesses in jurisdictions covered by the uniform Evidence Acts. The law of evidence presides over the reception and use of information in legal proceedings where the arbiter of fact is bound by the rules of evidence.3A hostile witnesses is one who deliberately withholds from giving evidence or is unwilling to tell the truth for the advancement of justice 4 The willpower of determining whether a witness is antagonistic is made on a voir dire. Examining direction must have first put to the witness the circumstances of the supposed prior inconsistent statement and ask whether such a statement was made5. For instance, if the witness is not declared hostile, the party may still disagree with that witness, by other evidence offered.6A party may not seek to attack the veracity and credibility of its own witnesses.78On the other hand, an exception rule arises where a leave is given to treat the witness as either hostile or adverse: s17 Evidence Act Queensland.9However this gives rise to the question of the miscarriage of justice as the witness’s evidence is attacking the credibility of its party. If the statement is contradictory, the witness must be asked about that particular occasion of which such statements were made by the witness: 10 If it is written (statement), the witness shall be asked on those parts of the writing that are to be used purposely for disagreeing with the witness statement.11On the other hand, if the discrepancy is again denied, the same evidence may lead to inconsistency 1213(if written). Even though at common law, such evidence goes to a witness’s integrity only1415, the facts of the statement is evidence of the certainty of its contents16. However, it is a matter for the adjudicators to determine on what weight to attach to any piece of evidence17especially where the only evidence against D is that s17 18report claimed by the witness to have been phony, the trial judge must be strong while directing the judges that, it would be hazardous to base on it for a assurance.19 The discrepancy between the facts given on oath and that contained in the earlier contradictory statement must be a clear as well as vital.2021 Advice is acceptable to mainly cross-examine the witness, in general, ask leading questions and try to bring into disrepute damaging evidence that the witness has already given. How far this is acceptable is a matter for the trial judge to make a decision about it.22 In the federal sphere, it is pointless to attest a witness is antagonistic so as to get leave to cross-examine.232425 It may be required (leave) to cross-examine your own witness on facts that are considered critical; a matter which the witness may realistically be supposed to have information on and which appears to the court that the witness is not making a valid attempt to give any evidence whatsoever; and Where a witness is called upon by a party and the witness is considered critical is dealt in section 38 of the evidence act 1995.This proviso reinstates the existing common law rule of hostile witnesses.26Section 38 tends to favor the prosecution because they can call hostile witnesses and cross-examine them. The advantage of cross-examining your own witness is that is allows you to attack them with leading questions in order to determine inconsistencies.27 In the case of R v Hogan [2001] NSWCCA28Hogan was found guilty for maliciously causing terrible bodily injury to Matthew Gray while visiting his girlfriend. Witness was crown witness and crown put an application to cross-examine this witness. The witness’s evidence was inconsistent with proof of evidence she gave in her statements. However, Hogan made a petition on the ground that such hearing should never have been allowed to take place under s38 to cross-examine since Crown witnesses introduce evidence that were considered inconsistent with several parts of their evidence.29 The Trial Judge failed to take into account the factors in s19230 which apply generally to applications for leavehe also did not refer to factors in s38(6).31 It is essential to consider how far cross-examination might be accepted and to what extent, considering the bounds set by s38, to issues which regards must have been considered when granting leave in s38 (6)32 as well as in s192.The Court referred to HCA authority of Stanoevski v The Queen33in this case the court held that s19234 which was to apply for leave to cross-examine it, and it referred to the obligatory requirement that these matters referred to in s192 be taken into account.35The judge however failed to meet the statutory requirement and the court held that there was a miscarriage of integrity and a new trial was then ordered. Another example is R v Le (2002), where Le was convicted of supplying heroin. One reason among many other reasons for appealing is that the trial judge should never have approved leave pursuant under s3836 for the prosecutor to cross-examine the witness; Amber O’Brien Le squabbles that the trial was miscarried simply because of the unjust bigotry caused by this cross-examination. Although the trial judge may have been open to criticism for the way in which the s38 questioning was allowed and prosecuted, it was the Court of Appeal’s opinion that no unfairness arose as a result of what happened.37One of the main reasons for establishing s38 was to allow the courts to grant leave under the same section38, to carry out questioning not only when the questioning is particularly intended for the above mentioned three subjects as described in s38 (1)39, but also when it is directed to establish the probability based on facts in relation to those subjects challenged by the party carrying out the questioning of the witness’s proof on those subjects. In R v Lozano, Examination and Cross-Examination of Witnesseswas accepted that s 38(1)(a) allows a witness to be declared unfavourable and cross-examined even when they genuinely cannot remember the events in question.4041s 38 is not restricted to a situation where a witness all of a sudden gives hostile facts, or surprisingly appears not to be making a valid effort to give evidence. for that reason, the section permits a party (in practice, most likely to be the prosecution) to call upon any witness they know to be critical/hostile for the sole idea of having them available for cross-examination as well as getting a contradictory s out-of-court Review of the Uniform Evidence Acts42statement acknowledged into evidence under s 38(1)(c).43 The prior contradictory statement is only permissible if it gratifies different requirements of Part 3 of the Act.44 However, the use of s 3845 was considered by the High Court (HC) in Adam v The Queen.46 In Adam, the trial judge allowed the Crown to cross-examine the witness as a hostile witness under section 38(1) (c), in relation to a preceding contradictory statements made to the police by the witness.47 The use of the statements serves two purposes. First, it is related to the integrity of the witness. Second, and importantly, once admitted for that purpose, the statements were admissible also for their hearsay purpose under s 60,4849which incriminated the accused. Most of them considers that the practice was only suitable under the Evidence Act of 1995 (NSW)50 and ensured that it does not result to any sort of injustice to the defense in the case as the defence was at liberty to cross-examine the witness on the previous contradictory statement.51 The discretions under s 13552, 13653 and 13754 may be used in order to prevent any further questioning under s 38.55 In R v GAC, the courts argued out that leave should not be granted to cross-examine a witness on the basis that it was illegally harmful to the defendant to permit the witness‘preceding report into evidence because, his alleged lack of remembrance could only mean that the defense could not cross-examine his earlier version of actions given to the police. 56However, after finding that the witness‘memory loss was founded on a desire to help the accused, the New South Wales Court of Criminal Appeal stated: “having regard to the circumstances of the interview, including its proximity to the critical events, what C said to the police was likely to be a good deal more reliable than what he said in court. On my part, I would not consider the probative value of the ruling as being outweighed by unjust prejudice to the plaintiff; nor do I believe that there was considerable wrong of the kind relied upon by the plaintiff.”57 In conclusion it is evident that there is a supposedly miscarriage of justice and the use of convoluted tactics. They create a blurred line of truth and fiction that only a trained legal professional would be able to identify therefore confusing the jury as to reliability of the evidence of the party presenting a hostile witness. ‘unfavourable witnesses’ V ‘hostile witnesses’. The law of evidence is best considered as collection principles, rules and discretions, which have developed over a number of years and in the light of different rationales.58 Section 38 of unfavorable witnesses authorizes the prosecution to make request to cross-examine a Crown witness in the conditions set out in s.38 (1) of the UEA. 59It is the Director’s policy that this proviso should never be read as being the subject matter to the common law doctrine forbidding the prosecution from deliberately calling an antagonistic witness. This is consistent with the decision of the High Court in Papakosmas,60 Adam,61 NSW Court of Criminal Appeal in Lozano62, the recent Victorian Supreme Court decision of McRae6 and ALRC Report 10263. Consistent with the practice in NSW, where a prosecution witness resides from his/her statement and leave is given for the prosecution to cross examine the witness, the Prosecutor may seek to tender the witness’s statement (or record of interview) through the police officer who witnessed the statement or conducted the interview. It should be noted that “unfavorable” has been held not to mean “adverse” but rather simply as “not favorable”.646566 It should be well-known that while bearing in mind the operation of s.38 in conjunction with the Prosecution’s duty to call witnesses, the NSW Court of Criminal Appeal in Kanaan67 held that the greater availability of cross-examination of a Crown witness by the prosecution under s38 has placed more emphasis on theCrown’s obligation to call witnesses “whose main relevance is the availability of their evidence unfavorable to the Crown case”. It was held that where a prosecutor accomplishes this obligation, it would be unfair to the Crown to reject leave to cross-examine in relation to the unfavorable evidence given. Even though an unfavorable witness can be contradicted with regard to facts in issue or relevant to the issue, but he cannot be cross-examined or discredited in any other way. Common law has not been affected by legislation as the judge still has discretion to allow a hostile witness to be examined by means of leading questions or with reference to a pervious statement,6869for this does not amount to impeachment of credit “by general evidence of bad character”. In R v Thompson,70 the accused was convicted of incest with his daughter who was called as a witness by the prosecution. After answering some formal questions, she said that she did not wish to give evidence. The judge allowed her to be treated as a hostile with the result that she was examined on a statement she had made to the police and by means of leading questions. The Court of Appeal held that the judge acted properly made affirmed the conviction. The witness did not deny making the statement to the police but, even if she had done so, it is doubtful whether s 3 would have applied to the case, for the girls statement was not “inconsistent with her present testimony”. If the section does not apply in such circumstances, it is questionable whether the statement can be proved,71 unless the refusal to testify further was on account of fear.72 In conclusion an unfavourable witness is preferable to a hostile witness as a hostile witnesses evidence can be discredited and they can be cross examined also a hostile witness can be used for them miscarriage of justice as parties may use the hostile witness in support of their case by their evidence contracting therefore given weight to their case. Therefore the use of an unfavourable witness also justice to occur by still taking into account their evidence into the court. Bibliography Articles/Books/Reports Cross , Byrne and Heydon, Cross on Evidence (1996) Review of the Uniform Evidence Acts William Twining, Retinking Evidence : Exploratory Essays (1990) The Australian Law Reform Commission Report 102 on “Uniform Evidence Law” December 2005 Legislation: Criminal Justice Act 2003 Evidence Act 2008 EVIDENCE ACT 1995 EVIDENCE ACT 1977 Evidence Act Queensland Cases: R v Hayden and Slattery R v Hogan [2001] NSWCCA 292. R v Golder, Jones and Porritt R v Lee Klein v R R v Parkinson R v Caracella Cotton v Cmr for Transport. R v GAC Adam v The Queen (2001) R v Lozano NSWCCA R v Souleyman (1996) 40 NSWLR 712 at 715. DPP v McRae [2010] VSCA 10 [24]. Kanaan&Ors v R [2006] NSWCCA 109, refer particularly to paragraphs 84 and 85. Clarke v Saffery (1824) Ry& M 126 Bastin V Carew (1824) Ry& M 127 R V Thompson (1976) 64 Cr App Rep 96 R V Booth ( 1981) 74 Cr App Rep 123 Papakosmas v The Queen (1999) 196 CLR 297. Stanoevski v The Queen Adam v the Queen (2001) 207 CLR 96. 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