1 At the conclusion of the evidence in chief of Duong Pham application was made by the Crown to follow the procedure set out in R v Thynne[1] and cross-examine the witness by leading questions in conformity with passages of the witness's statement dated 24 July 2002. The procedures which the Crown may be permitted to follow where a witness is in the relevant sense hostile have been the subject of consideration in previous Rulings.[2]
2 The application is opposed by counsel for Cuong Lam, Hung Van, Linh Van Nguyen (Johnny), Hong Bui and Hoang Tran. Counsel for Thanh Nguyen (David) supported the Crown's application. It was submitted by those defence counsel who opposed the application that there was an insufficient basis upon which to declare the witness hostile. It was further submitted that if I should declare the witness hostile I should not follow the procedure set out in Thynne, but should declare the witness hostile and give the Crown general leave to cross-examine.
3 The witness commenced his evidence-in-chief before the jury on Friday, 25 February 2005. During the balance of the witness's evidence in chief on Monday, 28 February 2005 the witness's head was bowed, his eyes downcast and his response to non-leading questions revealed an unwillingness to give any evidence which would result in the identification of any individual as having performed any particular act.
4 During the morning adjournment I enquired of senior counsel for the prosecution whether there was any apparent explanation for the obvious change in the witness's demeanour between Friday and Monday mornings. The learned prosecutor could provide no explanation for the striking change in the witness's attitude.
5 Senior counsel for the Crown also relied upon various passages in the witness's statement, inconsistent with or containing matters additional to, his evidence. These passages provide further confirmation of my assessment of the witness's disposition. The main passages from the witness's statement which the learned senior prosecutor wished to lead from the witness were directed to his description of one or more persons. These descriptions may have enabled the jury to identify the persons described by the witness.
6 In evidence in chief the witness testified that he saw two persons standing against the wall in the carpark and they were hiding swords behind their backs. He testified that he could not remember whether any of those persons were injured and did not know whether there was any blood on either of them. He said he could not remember. He said he could remember nothing which would differentiate one from the other and could not remember what they looked like. In his witness statement, he had said that one of the persons whom he observed inside the car park carrying a Samurai sword "was bleeding from the head. He had some blood on his clothes as well. He was shorter than me and he would have been around 160 centimetres tall" (the first passage).
7 In evidence-in-chief the witness said that he remembered some guy coming back looking for his shoe in Daly Street. He remembered that he had blood on his head. He said he had not seen this man earlier in the night. In his witness statement the witness said "I saw the guy that had been bleeding from the head and had a sword earlier walk back around the corner. I heard him say to someone to try and help him find his shoe" (the second passage).
8 The witness said in his evidence-in-chief that he saw someone whom he thought might have been the guy who was looking for his shoe take a sword out of the bushes outside Legends. He could not remember seeing the blade or whether there was anything on it. In his statement he said "While I parked I saw the guy with the bleeding head take a Samurai sword out from the bushes. These bushes were outside Legends. There was no cover on the sword and I could see blood on the blade" (the third passage).
9 On 18 November 2002 the witness had selected a photograph of the accused Hung Van being a person that he said he had seen in the vicinity of Legends.
10 These three passages which the witness had omitted from his evidence showed that he was speaking of the same person in each passage. These passages may have enabled the person to be identified.
11 In the fourth passage of the witness's statement relied upon by the prosecution he said, "The person with the sword yelled something out at this car. He then ran to the car. There might have been two guys in this car" (the fourth passage). In the final passage upon which the Crown relied the witness referred to the time when he stopped his vehicle close to a goldish-coloured Toyota Cressida in Chapel Street, further north towards Alexandra Avenue and said "there was four or five guys in the car" (the fifth passage).
12 The Crown submitted that the witness in his statement had made it clear that it was the same person that he had observed outside the nightclub hiding a sword behind his back who had returned to Daly Street later for his shoe and whom he had subsequently seen retrieving a sword from the bushes. In the second and third passages the witness had described this person as bleeding from the head and as being the person he had earlier seen with the sword outside the nightclub.
13 Counsel for Cuong Lam and Hung Van submitted that to determine whether the witness was hostile I should have regard to the committal proceedings and the evidence given by the witness in relation to these issues.
14 The position during the committal proceedings was as follows. In accordance with normal procedure the witness was asked whether he adopted as his evidence in chief his police statement dated 24 July 2002. He testified that there were no mistakes within the statement. He did not wish to change anything. He testified that its contents were true and correct stating that everything contained within the statement appeared to be "fine".[3] The Magistrate asked the witness whether there was anything in his statement that he was now unable to recall. The witness then referred to the third passage upon which the Crown relies which relates to the witness's observations of someone taking a Samurai sword from the bushes outside of Legends Pool Hall in Chapel Street. He said to the Magistrate that he could not remember what had happened. As to the fourth passage upon which the prosecution relies, he also said to the Magistrate that he could not really remember the person with the sword yelling out something at this car or the person running to the car. He said nothing by way of qualification in relation to passages one, two or five.
15 As to the first passage, in cross-examination at the committal proceedings, the witness was asked whether either person he saw in the carpark armed with a sword was bleeding from the head. He was then asked a series of questions relating to the appearance of either person and whether he saw blood on either of them. In answer to each question he said he could not remember.
16 In the light of this evidence at the committal it was submitted that no inference could be drawn from his evidence before the jury that he could not remember such matters. It was urged that I should place great weight on the fact that the witness had said repeatedly in cross-examination that he could not remember various things. This submission, though attractive, was unsound.
17 As to the first passage it was conceded by counsel for Cuong Lam that the witness had not resiled from his statement adopted as his evidence-in-chief at the committal in which he had said that one of the persons he had observed inside the carpark carrying a sword was bleeding from the head and had blood on his clothes. It was also rightly conceded that the prosecution was not precluded from seeking to lead such evidence because the witness said in cross-examination at the committal that he could not remember the fact.
18 As to the second passage, in cross-examination at the committal the witness confirmed that he had told the police when identifying the photograph of the accused, Hung Van, that he had seen this person outside Legends Pool Hall. He said that was the truth. He said that he had told the police that he could not remember what that person was doing or wearing or whether he was with anyone when he saw this person near the Legends Pool Hall. He further stated in cross-examination that all he could remember about this person was that he was there and made no observations of him doing or saying anything.
19 It was submitted by the prosecution that this cross-examination at the committal was directed to the person in the photograph that he had identified as the person he saw in the vicinity of Legends. Mr Dean submitted that the witness was not purporting in that cross-examination to refer to his observations of the person who removed the sword from the bushes. The witness at the committal claimed no memory of that incident.
20 As to the third passage it was conceded by counsel for Cuong Lam that the fact that the witness claimed at the committal that he had been unable to remember the incident involving the sword hidden in the bushes did not preclude the prosecution from seeking to lead such evidence from the witness before the jury. Yet it was contended that the effect of the witness's testimony at the committal was that he had resiled from his statement. Counsel for Hung Van made a similar submission pointing to the explicit denials by the witness that he had seen the person whose photograph he had identified doing any particular thing. By the time the witness came to give evidence at trial, his memory of the incident had returned, although he remembered nothing that enabled the person to be identified. It was not submitted that there would be any impropriety by the prosecution in seeking to elicit evidence by non leading questions as to matters which the witness claimed that he could not remember in cross-examination at the committal.
21 The present circumstances are to be distinguished from those where the prosecution is prohibited from calling a witness known to be hostile for the sole purpose of introducing otherwise inadmissible evidence before the jury.[4] It was not the purpose of the Crown to merely place the evidence said to be inadmissible before the jury. Here, the witness was called to give evidence about a number of relevant observations. The passages in dispute from his out of court statement were only a small part of that evidence. As the circumstances in Blewitt v R[5] demonstrate, where the purpose for calling the witness was to prove relevant matters, the Crown was bound to call the witness and in the course of his evidence have him testify as to all of the relevant observations that he made including those contained in the contentious passages. The evidence of the matters referred to in the controversial passages was not inadmissible. The witness had not resiled from any passages of his statement which he had adopted as his evidence in chief at the committal. Even if he had done so, the Crown would not necessarily be precluded from examining him on those matters. The fact that the witness claimed in cross-examination to be unable to remember certain events at the committal or expressed uncertainty about their occurrence did not prevent the Crown from seeking to lead such evidence from the witness at the trial.[6] In the present case it was the Crown's expectation that the witness would acknowledge the disputed passages as true and correct.
22 The matters in the witness's statement which were omitted from the witness's testimony confirmed my view as to the witness's hostility. Although it is unnecessary for me to make any finding about the motivation of the witness, it is clear that the witness was reluctant to give any evidence which might result in the identification of any person he observed at any of these three times. At the committal the witness had initially claimed that he could not remember the incident set out in the third passage relating to someone taking a sword from the bushes, and by the time of the trial he had regained his memory of this incident. I think it likely that he claimed a lack of memory at the committal to avoid giving such evidence.
23 It is necessary that I be satisfied that the witness is hostile in the relevant sense before permitting the Crown to follow the procedure in R v Thynne. A finding that a witness is hostile to the prosecution is not a common occurrence and should not be lightly made. The Crown has already made successful applications with respect to two previous witnesses. The learned senior prosecutor in the course of submissions on 28 February 2005 referred to the fact that it is exceptional that so many witnesses called by a prosecution have revealed a reluctance to give a full account of their observations. Senior counsel for the prosecution proffered an explanation for this phenomena from the Bar table. He submitted that it would have been open to him to explore this explanation when he was given general leave to cross-examine the witness Michael Phan[7] but refrained from doing so as he recognised the prejudice to the accused that would arise.
24 The present application to treat this witness as hostile is a discrete application. The conduct of other witnesses, and my conclusion that other witnesses have been hostile, is irrelevant to the determination of the present application. So is the explanation proffered by the Crown. I disregard it.
25 Apart from the demeanour of the witness, as I understand the Crown submission, it relies principally on those passages in the witness's statement to which I have referred as justifying the conclusion that the witness is hostile or adverse to the Crown. Having regard to the witness's general demeanour throughout his evidence-in-chief and all of the passages from the witness's statement upon which the Crown relies, the witness should undoubtedly be regarded as hostile. His unwillingness to tell the whole truth was manifest. The submissions that there was no sufficient basis upon which to declare the witness hostile are without merit.
26 If I considered the witness hostile some defence counsel have submitted that the witness should be declared hostile and the prosecution compelled to cross-examine at large. It was said that to follow the procedure in Thynne works unfairness to the accused because it conceals from the jury the Crown's attitude to the credibility of the witness.
27 The hostile witness rule evolved as a means of permitting a party who has called that witness to impeach the credit of that witness so as to demonstrate that their present testimony was unreliable or ought not to be accepted. The adoption by that witness of a prior inconsistent statement as true and correct was a collateral consequence of the parties' ability to be able to impeach the witness's credit.
28 A primary reason for the procedure in Thynne which confines the extent of the prosecutor's cross-examination to leading questions in conformity with the witness's statement is that the prosecutor is prevented from impeaching the credit of the witness or otherwise cross-examining. The Crown is denied the capacity to disclose to the jury the fact that the witness, at a time contemporaneous with the events, has made a prior statement inconsistent with his testimony. The Crown is precluded from exploring the witness's credit or the reasons why variations or omissions in the witness's account have come about.
29 The submissions by some defence counsel wrongly assumed that a general right of cross-examination always arises following upon a determination by the trial judge that a witness is hostile. The trial judge should permit cross-examination only to the extent that it is considered necessary for the purpose of doing justice.[8] In R v Schriek[9] Eichelbaum CJ, in the course of delivering the judgment of the Court adopted this approach, observing that the prosecution should be confined to cross-examination on the witness's previous statement unless the interests of justice required more general leave to be granted.
30 The procedure set out in Thynne achieves the same objective. If unrestricted leave to cross-examine were granted, the revelation of the existence of a prior statement generally made at a time much closer to the events and which incriminates the accused in a manner which the witness's testimony has failed to do, is capable of working great prejudice to the accused, even if the witness admits the truth of the facts contained in the prior inconsistent statement.[10]
31 It has been frequently said that the distinction between a prior inconsistent statement, the truth of which is admitted, and one which is denied, though well understood by lawyers, is not necessarily understood by a jury. The distinction between evidence of facts and material impeaching credibility is a difficult one for a jury to make. A jury may give undue emphasis to the fact that the witness at an earlier time has inculpated the accused.[11]
32 In the present case one previous witness was cross-examined utilising the procedure in R v Thynne and another was cross-examined at large. In the latter case the prosecutor expressly referred to the prior statement of the witness before obtaining the assent of the witness to each allegation of fact. Having observed both procedures at work, I am left in no doubt that cross-examination which permits the prosecutor to refer to the witness's prior statement carries with it a significant risk that the jury will attach a weight to the further evidence which they would not do if the prosecutor was limited to leading questions in conformity with his statement. The procedure in Thynne has much to commend it.
33 I granted the Crown leave to cross-examine the witness in conformity with his witness statement of 24 July 2002 in accordance with the procedure in Thynne. The witness then assented to the propositions put by the prosecutor. The jury may view the witness as having given inconsistent or differing versions as to some matters.
34 Where the witness assents to propositions put in a leading manner by the prosecution in conformity with his police statement, the reliability of the witness is called into question. It was submitted by counsel that I should give the jury some direction about the unusual procedure that was followed and how the jury should approach an assessment of the evidence elicited. I was referred to no authority which deals with the form such a direction should take.
35 The question of appropriate directions to be given by the trial judge to a jury in relation to the evidence of a witness who has made a prior inconsistent statement which has not been adopted as true was considered in Driscoll v R.[12] In that case Gibbs CJ speaking for the whole Court stated: