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[2005] VSC 282
Supreme Court of Victoria
2005-02-23
Redlich J
Original judgment source is linked above.
Evidence - Hostile witness - Basis for determination - Leading questions of hostile witness by prosecution - Questions permitted seeking to establish truth of facts contained in witness statement - Whether general cross-examination should be permitted.
Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
1 Application has been made by the Crown for leave to cross-examine the witness Michael Phan by leading questions in conformity with two statements made to the police on 24 July 2002 and 21 February 2005 respectively. The prosecution wish to follow the procedure discussed in R v Thynne[1] which was recently referred to with approval by the Court of Appeal in R v Trong Duy Ngo.[2] I examined this procedure in a previous ruling.[3] I there ruled that the prosecution could ask the witness Bam Van Nguyen leading questions in conformity with his written police statement reserving the question of leave to cross-examine generally if it should subsequently appear that the witness continued to be "hostile" in the relevant sense.
2 The Crown's application is opposed. It was submitted by Mr Grant on behalf of Cuong Lam and Mr Saunders on behalf of Hong Bui that no adequate basis existed for a finding that the witness was hostile. I understood counsel for Hung Van and Hoang Tran to adopt the submissions made by other counsel.
3 The witness gave evidence on a Basha Inquiry on the morning of 23 February 2005 limited to the content of his statement made on 21 February 2005 which was the subject of a Notice of Additional Evidence. Although the witness acknowledged his statement of 21 February 2005 to be true and correct his demeanour and answers to questions during the course of the Basha Inquiry conveyed the impression that he was a reluctant witness anxious to avoid telling the whole truth. The witness claimed a poor recollection of what he had said in his statement made two days previously.
4 The witness then commenced giving evidence before the jury. Before the witness was examined as to the matters contained in his statement of 21 February 2005, a submission was made by defence counsel that the content of the witness's statement of 21 February 2005 was irrelevant and inadmissible and should be excluded. I rejected that application. This was the subject of another ruling in this case.[4] At the time of so ruling, it was apparent from the witness's general demeanour that even if the Crown attempted to lead such evidence, it may not be forthcoming from the witness. When the Crown sought to lead the evidence from the witness he gave answers inconsistent with the content of his statement.
5 At the conclusion of the witness's evidence-in-chief the Crown made application for leave to examine the witness by way of leading questions. It was submitted that the witness's demeanour and behaviour in the witness box revealed that the witness was unwilling to tell the truth about certain matters that he observed on the morning of 8 July 2002. The learned prosecutor drew my attention to specific matters contained within his police statement of 24 July 2002 and 21 February 2005 which were inconsistent with the witness's testimony or were important matters about which the witness had not testified.
6 As the Crown relied upon significant passages from his police statements about which he had not testified or which he had contradicted, I permitted a voir dire in which the witness testified that the content of his statements of 24 July 2002 and 21 February 2005 were true and correct. He also said that he was shown certain still photos that are referred to in the statement of 21 February 2005 at the time he made the statement.
7 In cross-examination by defence counsel on the voir dire the witness agreed with the suggestion that he was not deliberately failing to swear up to his statements and was doing his best to tell the truth. That was plainly not so. There was an unsuccessful attempt by defence counsel to suggest in cross-examination on the voir dire that the passage of time may account for his claimed poor recollection. This was not a case where the variance between the witness's testimony and his statements made to police might be explained by a loss of memory. The explanation lies elsewhere.
8 Counsel for Hong Bui complained that the learned prosecutor on the voir dire did not cross-examine the witness to ascertain why discrepancies had arisen between his testimony and his police statements. Having established that the content of his statement was true and correct the learned prosecutor was not obliged to further explore the reasons for the witness's obvious hostility to the prosecution.
9 Following the voir dire some defence counsel persisted in the submission that there was an inadequate basis upon which to treat the witness as hostile.
10 Reliance may be placed upon a witness's demeanour in the witness box, his answers to non-leading questions, his choice of language and other signs which may demonstrate his unwillingness to tell the whole truth. Prior inconsistent statements may also indicate hostility.[5]
11 In the present case, the witness's demeanour and the manner and content of his answers to questions has clearly demonstrated an unwillingness on his part to tell the whole truth. When I first formed that view, I was unaware of the extent to which his testimony diverged from his police statements. His unwillingness to tell the truth was apparent from the manner in which he answered questions.
12 The witness also failed to swear up to significant matters some of which were set out in a statement made two days previously. This confirmed my view that he was not a truthful witness. In giving answers inconsistent with the content of his statement made two days earlier, which he had acknowledged on the voir dire to be true and correct, he further revealed his disposition. There was no merit in the submission that an insufficient basis existed to treat or declare the witness as hostile.
13 Counsel for Hong Bui also adopted the submissions that he had made in relation to a similar application with respect to the witness Bam Van Nguyen the subject of a previous ruling.[6] He had then submitted that cross-examination by the Crown as to a witness's prior statement following a declaration that the witness was hostile must be confined to establishing that the prior statement was inconsistent with the testimony given by the witness. He submitted that it was not permissible for the witness to be asked in cross-examination by the prosecutor whether the content of the statement was true and correct, thereby rendering the evidence admissible evidence for the prosecution. No authority was cited for this proposition. This submission was without substance.
14 Cross-examination may be confined or at large.[7] Once leave is given to the prosecution to cross-examine a witness following a determination that the witness is hostile, the prosecution may seek to have the witness affirm the truth of the inconsistent statement.[8] If this eventuates, there is positive evidence on oath of those facts which are acknowledged by the witness to be true and correct.
15 It was submitted by counsel for Hoang Tran and Hong Bui that in the event that I viewed the witness as hostile, the Crown should be given leave to cross-examine the witness generally and the learned prosecutor should not be permitted to follow the procedure in Thynne of asking leading questions confined to the facts contained in the witness's police statements.[9] Senior counsel for the prosecution, submitted that the course he had proposed would be a fairer one to the accused. It would avoid the disclosure of the existence of the witness's prior statement to the jury and would not entitle the prosecution to examine the witness as to his reasons for not "swearing up" to his police statement.
16 The prosecution, as a consequence of defence counsels' submission, did not press the application to follow the procedure in R v Thynne. I declared the witness hostile. The cross-examination was confined to the passages in the witness statement and to establish that they were true and correct. I was satisfied that this procedure would not produce any unfairness. The witness, because of his hostility, was most unlikely to assent to any proposition put to him by the prosecutor which might lead to the identification of any offender unless it accorded with his memory of events.[10]
17 Subsequently, the jury's attention was drawn to the fact that the prosecution had been permitted to cross-examine the witness by leading questions and the jury was given directions as to how they should approach the testimony of such witnesses, who, when asked leading questions by the prosecutor assent to a series of propositions which were omitted from the witness's earlier testimony or had given evidence at variance with it.[11]
[2] [2002] VSCA 188 per Winneke P. at [21]
[5] McLellan v Bowyer [1961] HCA 49; (1961) 106 CLR 95; R v Hadlow (1991) 56 A. Crim. R. 11; R v Hutchinson (1989) 53 SASR 587 at 592 per King CJ; R v McLachlan [1999] VSCA 127; [1999] 2 VR 553 per Callaway JA at [48]; R v Hawkins [2003] SASC 419; R v Trong Duy Ngo Footnote 2 per Winneke P at [21].
[6] Footnote 3.
[7] R v Prefas & Pryce (1986) 86 Cr App Rep 111; R v Hutchinson Footnote 5; R v Hadlow Footnote 5; R v Schriek (1997) 2 NZLR 139.
[8] Birkett v A F Little Pty Ltd [1962] NSWR 492; R v Thynne [1977] VicRp 10; [1977] VR 98; R v Jacquier (1979) 20 SASR 543 at 554; R v Trong Duy Ngo Footnote 2; Bull v R [2000] HCA 24; (2000) 201 CLR 443.
[9] Footnote 3.
[10] See Footnote 3 and [2005] VSC 283.
[11] Ibid [2005] VSC 283.
R
Lam
(1961) 106 CLR 95
(1989) 53 SASR 587
(1979) 20 SASR 543
(2000) 201 CLR 443