HOBART, 19-20 November 1997 (hearing), 20 November 1997 (decision)

Consequent upon the ruling that it is appropriate to determine an application to have a witness determined hostile so as to enable that witness to be subjected to cross-examination as to the making of prior inconsistent statements in accordance with the Evidence Act 1910, s98(2) ("the Act"), by means of a voire dire, counsel for the accused has submitted that Crown counsel is not permitted to cross-examine such witness on that voire dire.

In ruling that it is permissible, but not obligatory, to determine hostility by means of a voire dire, regard was had to decisions of courts in Victoria, South Australia and Queensland (R v Sergi [1974] VicRp 1; [1974] VR 1, R v Jacquier (1979) 20 SASR 543, R v Andrews [1987] 1 Qd R 21), cases in which appellate courts gave consideration to determinations as to hostility, based on evidence given on a voire dire. No criticism was expressed as to the procedure adopted. In R v Andrews (supra), the court stated at 31:

"In a particular case, if he (the prosecutor) finds it necessary to seek to have a witness whom he has called declared hostile, the trial Judge has a discretion and in exercising it may often have the advantage of having heard substantial evidence on the voire dire."

It would seem that the Australian procedure differs from that in the United Kingdom where, as appears from a statement in Criminal Pleading Evidence and Practice, Vol 1, Archbold 1992 ed, par8.81:

"The question of the hostility of a witness should be determined as a result of his answers and demeanour when being questioned in the presence of the jury: R v Darby, The Times, June 20, 1989, CA."

The Australian practice accords more with the concept that it is preferable to deal with matters potentially prejudicial to an accused in the absence of a jury so as to enable a more detailed consideration of the reception of evidence.Such, in turn, permits a more extensive examination of evidence and issues before consideration is given to the matters which may be properly considered by the jury.

The Act, s98(1), limits cross-examination to previous inconsistent statements. It does not permit an attack based on collateral issues. Evidence in relation to character may be led in accordance with the rules of common law and an accused person may be subjected to cross-examination in accordance with the Act, s85(10) and (11), but, ordinarily, a party is not entitled to impeach the character of his or her own witness. However, it is important to recognise that the distinction between evidence-in-chief and cross-examination is not necessarily that of impeachment or enhancement of credibility. The Act, s98(2), provides that the same course may be taken as that permitted in cross-examination of an opponent's witness:

"... with a witness upon his examination in chief, if the judge is of the opinion that the witness is hostile to the party by whom he was called and permits the question".

There is clear distinction between a witness who is hostile and one who merely has made a previous inconsistent statement. The concept of "hostility" connotes an attitude of prevarication or mendaciousness based on an interest in or commitment to an opposing party, or "unfriendliness or antagonism" to the party calling him or her as a witness. As such, its import is wider than that of inconsistency. It has long been recognised that inconsistency without more does not necessarily warrant the conclusion of hostility (Price v Bevan (1974) 8 SASR 81, R v Hunter [1956] VicLawRp 5; [1956] VLR 31). Thus the prosecution in an application pertaining to the Act, s98(2), is required to establish a nexus between the interest and sympathy of the witness, and the reason for the inconsistent testimony (McLellan v Bowyer [1961] HCA 49; (1961) 106 CLR 95)..To do otherwisewould involve the conclusion that the making of a prior inconsistent statement would permit cross examination as of right.. But it does not follow that a party is precluded from cross-examination of a witness if the purpose is to establish hostility. If cross-examination is permitted, albeit in a form limited to inconsistency for the determination of hostility, there is no reason why it should not be permitted in a hearing relating to such a question. In this case, the hearing, although in the form of a voire dire, is governed by the ordinary rules of evidence. The Act, s97, permits the impeachment of a party's witness in the following terms:

"A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but may contradict him by other evidence relevant to the issue."

In the circumstances of an application under the Act, s98(2), the issue is whether the witness is antagonistic and whether there is a connection between such antagonism and the inconsistent testimony. If on a trial there can be cross-examination as to possible bias against the party calling the witness (Melhuish v Collier [1850] EngR 709; (1850) 15 QB 878), then such should be permitted on the voire dire.

It is necessary to distinguish between leading questions, cross-examination and impeachment. A leading question is one which suggests or contains the answer. In many cases such questions are permitted (sub silento) since no party objects and they are designed to facilitate responses not in issue. A court has a discretion to permit leading questions in examination-in-chief (Gordon v Carroll & Ors (1974 - 1975) 6 ALR 579). The right of a party to put leading questions to his or her witness was affirmed by the English Court of Appeal in R v Thompson (The Times, 20 November 1976), a case noted in the addendum to R v Thynne [1977] VicRp 10; [1977] VR 98. Leading questions may be put in cross-examination almost as of right, although there remains a discretion to prevent them (Mooney v James [1949] VicLawRp 6; [1949] VLR 22), or to limit the scope of such questioning (Wakeley v R [1990] HCA 23; (1990) 93 ALR 79). But there remains a distinction between cross-examination and the use of a leading question. In the circumstances of this case, some of the questions objected to were more akin to those of a leading nature, that is, they comprised the answer. However, the following questions were designed to test the reliability of the competing versions given by the witness (VD 109 - 110):

"Now, when you were spoken to by the police, your mother was present, wasn't she?...Yes.

And you would agree with me that your memory when you were spoken to by the police seven days after the taking of the car was better than it is now?...Yes.

Much better than it is now?...Yes, yes.

And so anything you say now must be treated cautiously because of you - didn't have the good memory that you had in January of last year?...Yes.

So if that recorded video interview says, this is when you're at Dons Head (sic), 'We got out and locked it and hid and, then we, they come, give it to Covo, that's happened', you would say?...

MR STODDART: - so when the car came you got out, - "

"MR RICHARDSON: I object to this on the basis of fairness. She's not my witness but it's my submission this witness is in a position where for whatever reason she is agreeing to virtually anything that the Crown Counsel is putting to her and to say, 'Your memory is better then than it is now', fine, she agrees with that. So if what's in there must be right. It doesn't follow at all. She's just going along and agreeing. In the end, at the rate it's going, it's just not fair to the witness in my submission."

At a later stage, counsel refined the objection to that of general fairness and impermissible cross-examination. Although the particular objection was subsequently withdrawn there remains the general objection based on the question of cross examination.The questions were designed to examine the circumstances surrounding the making of the previous inconsistent statement. Accepting that they constituted cross-examination, it does not follow that they are impermissible. There are a number of exceptions to limits placed on cross-examination of an accused person. Those exceptions include propensity (Makin v Attorney-General for New South Wales [1894] AC 57, Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353), character (Crabbe v R [1984] FCA 321; (1984) 56 ALR 733), questions arising out of imputations on the character of Crown witnesses (Evidence Act 1910, s85 (1)(c), Curwood v R (1944 - [1944] HCA 40; 1945) 69 CLR 561, Phillips v R [1985] HCA 79; (1985) 159 CLR 45) and matters involving evidence relevant to or on behalf of a co-accused (Matusevich v R (1976 - [1977] HCA 30; 1977) 137 CLR 633) although in many instances leave of the court is required (R v Saric [1982] Qd R 360). Accepting that exceptions are permitted to the general rule limiting cross-examination, there is no reason why an exception should not be permitted in an examination as to whether a witness should be regarded as hostile provided that the questions are confined to the issue requiring determination. To that extent, the differing principles in governing impeachment and cross-examination coincide. A trial held on the voire dire is concerned with the issue of hostility and to that limited extent, the witness whose evidence is sought to be impugned can be regarded as a potential witness for the opponent. The issue is between the party and the witness and although an opponent should be afforded the right of intervention by way of cross-examination or recalling of evidence, the central issue remains one of the evidentiary status of the witness. In the trial of that issue, the party ought be permitted the right to ask leading questions and, where there is inadequate response, to pursue the matter by way of cross-examination provided such cross-examination is confined to the existence of inconsistency and the reasons thereof. Such an approach neither offends the provisions of the Act, s97, nor is contrary to permitted exceptions to the rules limiting cross-examination. That right and the appropriate procedure to be followed before a declaration of hostility was stated by Dixon J in R v Neal, Regos and Morgan (noted in [1947] ALR 616), a decision applied by the Full Court of the Supreme Court of Victoria in R v Thynne (supra). The course adopted in Neal was stated in Thynne at 101 in the following terms:

"During the course of the prosecution case, a witness for the prosecution gave evasive answers and professed himself unable to recollect certain events. On an application by counsel for the prosecution to have the witness declared hostile and for permission to cross-examine him generally, Dixon, J, without determining whether the witness was 'hostile', gave leave to counsel for the prosecution to cross-examine the witness by leading questions in conformity with the terms of the written statement made by the witness in the course of the preparation for the trial. That leave was limited to cross-examination as to the facts recorded in the statement in writing. There was no leave to cross-examine the witness generally. Dixon, J, reserving to counsel the right to make application at a later state for leave to cross-examine generally if it should then appear that the witness was 'hostile' in the relevant sense ".

A further reason exists for preventing cross-examination, namely, that if enquiry on the voire dire is allowed, then a party ought be permitted to call evidence of hostility. Thus evidence of a statement attributed to a witness that he or she intended to give false evidence or would give assistance to an accused, would be relevant to and admissible on an "hostility application". If such material were not put to the witness, then the "sanctions" associated with the principles expounded in Browne v Dunne (1894) 6 R 67 (HL) could be attached to the party who failed to put the matters to the witness. Such would be unfair to both the party and the witness.

Accepting the above analysis, the permitted conclusion is that a party seeking to have a witness declared hostile for the purpose of the Act, s98(2), ought be permitted to:

1 have the matter determined by means of a voire dire examination;

2 establish the existence or otherwise of previous inconsistent statements;

3 examine the circumstances of inconsistency and the reasons thereof;

4 pursue such examination by means of leading questions;

5 challenge responses to such leading questions by means of cross-examination;

6 where necessary prove by means of independent evidence the existence of inconsistency and "hostility";

provided that such questioning and eliciting of evidence are confined to the existence and nexus of inconsistency with an attitude referable to the case. General questioning of character and prior conduct are ordinarily irrelevant to the issue.

In the circumstances of this case, questions pertaining to the existence of inconsistent statements, the reasons for their making, illogicality, the making of statements of hostility, the relationship with the party and the like will be permitted. Questions pertaining to the internal structure of answers, their textual analysis, general character of the witness and such will not be allowed. On the basis of this ruling, it follows that the last question asked before objection will be disallowed. It will be necessary to determine all further questions as and when they are put to the witness.