"... wherever an answer in cross examination would, unless supplemented or explained, leave the court with an impression of the facts, whether facts in issue or facts relating to credibility, which is capable of being construed unfavourably to the party calling the witness and which represents a distortion or incomplete account of the truth as the witness is able to present it:"
Cross on Evidence (Aust ed, 1996) par 17,605; Wojcic v Incorporated Nominal Defendant [1969] VR 323 at 326; Wentworth v Rogers [No 10] (1987) 8 NSWLR 389 at 409; and see 6 Wigmore on Evidence (Chadbourn Rev) s1896. It has been specifically decided by the Full Court in South Australia that these matters extend to subjective considerations going to the mental state of the witness at the time of answer: Reg v Lavery (No 2) (1979) 20 SASR 430 at 435 and 451, Reg v Szach (1980) 23 SASR 504 at 511-9; 566-70; 587-8. In the Evidence Act 1995 this broad approach is in my view adopted by the wording of s 39(1) and confirmed by s 108(1).
6 There have been various statements in the past as to limitations upon re-examination. It has been stated that the re-examiner may not cross examine his own witness: Phipson on Evidence (14th ed, 1990) par 12-28. This is no doubt true if it means that, having obtained an answer from a proper question in re-examination, the re-examiner attempts, particularly if by leading questions, to deflect the witness from that answer or get him to modify it. It is also sometimes said that in re-examination one cannot get the witness to alter or reverse an answer, or a clear answer, given in cross examination, but I can find no authority for a proposition in those terms.
7 Whilst modern authority rejects the proposition that re-examination is limited to clarifications and explanations of ambiguities, it may be that it is correct that, where the question in re-examination is put upon the basis of making a necessary clarification or explanation, and it appears to the Court that there is no lack of clarity or ambiguity, then the question may be rejected, particularly if the result of allowing it may well be that the Judge would feel obliged in his or her discretion to allow considerable further cross examination as a result of the answers: see Hadid v Australis Media Ltd SCNSW Sperling J 5 November 1996 unreported; Shipp v Cameron (No 2) SCNSW Einstein J 13 October 1997 unreported.
8 I came to the conclusion that, the credit of Mr Lepparde, having been compromised by answers that he gave to Mr Shand in cross examination, the questions that I allowed in re-examination this morning fell within the broader principle set out above and ought be allowed. They were proper questions tending to re-establish the witness' credit within the general principle in the cases referred to. I did not admit them simply by reference to an apparent lack of clarity or ambiguity, although, in coming to my decision, I did advert to the fact that some lack of clarity may have arisen from the use of the singular pronoun "it" in the question leading to the impugned answer, whereas the antecedents of that preposition, in the questions and answers immediately before and immediately after the impugned question, appeared to be plural antecedents. I also adverted to the fact that the witness had attempted, when cross-examined, to say that he sought to revise his earlier answer. Mr Shand quite properly had not allowed him to do so, as such revision was not an answer to the questions Mr Shand had chosen to ask. Nonetheless, the answer was not struck from the record, there being no application to do so, and stood as part of the cross examination, from which judgment had to be made as to whether or not the re-examination sought arose.
9 For those reasons I did allow in re-examination the questions referred to. Because of the vexed nature of the question of the antecedent to the preposition "it", I thought it proper, after the witness had given his answer in re-examination, to allow Mr Shand to ask two further questions in cross examination on that subject matter only, in the exercise of my discretion and as a matter of ensuring fairness to both the opposing parties in relation to this matter.
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