1 Application has been made by the Crown for leave to cross-examine the witness Bam Van Nguyen by leading questions in conformity with his written police statement. The Crown, although contending that I should be satisfied the witness is hostile, does not seek to cross-examine as to the credit of the witness, but rather to elicit facts referred to by the witness in his statement.
2 A distinction is to be drawn between cross-examination involving an attack upon the credit of a witness, impeachment of the witness, and the use of leading questions. It will often be appropriate, where a witness is treated as hostile, to circumscribe the scope of leading questions, reserving the right to more general cross-examination in the event that it is concluded by the trial judge that the witness' responses indicate a continuing unwillingness to be truthful.
3 Mr Southey, quite fairly, has limited his application to the procedure that was followed by Dixon. J in R v Neal, Regos & Morgan[1] which was referred to with approval in R v Thynne[2]. By this procedure the witness may peruse his statement and answer leading questions directed to the facts contained within the statement. In R v Trong Duy Ngo[3] Winneke P. with whom other members of the Court agreed, citing the authorities to which I have referred, described the procedure of cross-examination limited to designated inconsistencies in the witness' prior statement as in accordance with well established authority.[4] The High Court has on more than one occasion cited Thynne's case without criticism.[5]
4 It was submitted on behalf of some accused that I should not accept that the witness was hostile. In the event that I was satisfied the witness was hostile, counsel for the accused did not oppose the adoption of the procedure approved in Thynne.
5 Leave to the prosecution to ask leading questions confined to the witness statement or to cross-examine at large should not lightly be granted. An important consideration in determining whether leave should be granted is whether there is a danger that the witness would simply adopt assertions put, rather than give true answers based upon recollections.
6 The prohibition upon the asking of leading questions in evidence-in-chief rests upon at least two assumptions discussed by Barry J in Mooney v James[6]. First, the party calling the witness has the advantage of knowing what the witness can establish and, if permitted, to frame questions which may put a gloss on the testimony. Second, many witnesses are too much disposed to assent to propositions of counsel instead of answering after an exertion of their own memory. Where the witness is found to be hostile, leading questions may be put upon the assumption that the witness is not partisan to the party that called him and will be resistant to suggestion. Where the ground for the latter assumption does not exist, the trial judge, who has a general discretion to regulate the manner in which evidence is elicited[7], may refuse leave to ask leading questions.
7 Because of the witness's hostility, I am of the view that no unfairness will arise if the prosecutor is permitted to ask leading questions confined to the facts in his statement. In the course of submissions, I stated that it was plain that the witness, both by his demeanour and the substance of many of his answers, was unwilling to give truthful evidence. I am satisfied that the witness has been deliberately evasive in many of the answers that he has already given. He was not partisan to the prosecution. If the Crown had made application at this stage to have him declared hostile, I would have acceded to that application.
8 It was submitted by counsel for Hong Bui that it was necessary for me to conduct a voir dire before determining the Crown's application. The trial judge has a discretion as to whether or not a voir dire is necessary in such circumstances.[8]
9 In the present circumstances where it was clear that the witness was evasive and unwilling to tell the truth, it was not necessary to consider the content of his statement to reach the conclusion that he was a hostile witness. The content of his police statement merely confirmed the view which I had already formed that he was unwilling to tell the truth.
10 Mr Southey has indicated that it is his intention, in accordance with the procedure in Thynne , to place the statement of the witness before him. It was not disputed that this should be done in the absence of the jury. The witness' attention can be drawn to the relevant passages in his statement. In the jury's presence the prosecutor can then ask leading questions in conformity with the relevant facts contained within the statement without referring to the statement. I would reserve the question of leave to cross-examine generally if the witness by his subsequent responses to further questions continues to be evasive or otherwise demonstrates an unwillingness to tell the truth. I shall point out to the jury, at an appropriate time, that the prosecution has been permitted to follow this course and give them directions as to how they should approach the testimony of such a witness.