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Lecture

Hostile Witnesses

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
Nick Dowse Hostile Witnesses Hostile Witnesses – Structure of Answer 1. “The issue here is whether [counsel] can discredit their own witness, [witness’s name], in the witness box?” a. When calling a witness, the caller expects their testimony to be favourable to the case. When this doesn’t happen, the caller will want to attack the witness to destroy the effect of the evidence. b. Whether you can do this depends on whether the witness is hostile or merely unfavourable. c. Usually crops up in examination-in-chief, not the other phases. 2. “The general rule is that counsel cannot discredit their own witness unless they are hostile. A hostile witness is something more than just an unfavourable witness.” a. Hostile vs Unfavourable b. An unfavourable witness is a witness that does not prove a fact in issue or proves a fact helpful to the other side (Cross on Evidence @ p 522). i. Colloquially = a witness “who fails to come up to proof” c. If witness is merely unfavourable, counsel has very limited recourse. CL does not allow a party to discredit an unfavourable witness in any way whatever (R v M). i. However, counsel is at liberty to make out the case using other witnesses (Ewer v Ambrose). d. A hostile witness is one who is “unwilling to tell the truth for the advancement of justice” or is “withholding material evidence” (McLelland v Bower @ 104). e. Hostility is an objective question of fact for the judge (McLelland v Bower). i. Onus of proving hostility is on the party seeking declaration. ii. Standard of proof: to show affirmatively hostility. iii. It is in the discretion of the judge to declare a witness hostile, but failure to do so may be grounds for an appeal (McLelland v Bower). 3. “In determining whether a witness is hostile, reference may be made to: a. any prior inconsistent statement (PIS); b. their demeanour; c. conduct in the witness box; d. choice of language; e. responses to non-leading questions (R v Mullins).” 4. Prior Inconsistent Statements a. “[Counsel] can use [witness’s] statement before the trial to show hostility. This is inconsistent with current testimony and is therefore a PIS.” b. Check: are we relying solely on the PIS? (ie can we also rely on their demeanour/conduct/language etc?) i. If relying solely on PIS, need to have a voir dire to satisfy judge of hostility (Hadlow). ii. [Witness] needs the opportunity to explain the [inconsistency] as may have legitimate excuse for failing to answer questions properly or saying PIS. Judge must give witness chance to explain or repudiate the PIS before declaring hostility, otherwise grounds for successful appeal (Hadlow). iii. If not relying solely on PIS, there is no need for a voir dire because the jury would have already seen the witness acting inappropriately in the witness box! c. Procedures to follow if declared hostile on basis of PIS… i. [Counsel] must get leave of the court to cross-examine [witness] and if necessary prove the statement made to the police officer immediately after the accident: s 17(1) QEA. ii. [Counsel] must put the circumstances of the incident to [witness] so that can identify the statement and comment on whether made it: s 17(2) QEA. d. Witness may react in three possible ways… i. If [witness] admits making the PIS and that PIS is true (ie the thing they just said in court is not true), then the PIS goes to credit only, and is not proved under s 17 QEA Page 1 of 6 Nick Dowse Hostile Witnesses The PIS becomes part of her oral testimony. 1. It is up to the jury whether to accept or reject the truth of the PIS (Morris) 2. It is also up to the jury to decide the weight to place on the evidence (Morris) ii. If [witness] admits making the PIS but denies PIS is true (ie admits first statement was a lie), then – 1. The PIS is proved by virtue of s 17 QEA; and a. Counsel needs to put to witness circumstances of the statement ask them whether or not they made that statement 2. The PIS becomes evidence of the truth of its contents (s 101(1)(a) QEA); and a. PIS is deemed to be the truth (Lawrie) b. This is an exception to hearsay. 3. The jury is to determine the weight it affords to the PIS under s 102 QEA a. Can consider whether statement made soon after the event (s 102(a)) and whether [witness] had any incentive to conceal or misrepresent the facts (s 102(b)). b. Made immediately after = significant weight etc iii. If [witness] denies making the PIS, [counsel] will need to lead evidence to prove that [witness] made the PIS (s 17 QEA). 1. In this situation, the counsel should call the [police officer] to prove that [witness] made the PIS (s 17 QEA) a. Counsel needs to put to witness circumstances of the statement ask them whether or not they made that statement 2. The PIS becomes evidence of the truth of its contents (s 101(1)(a) QEA) a. PIS is deemed to be the truth (Lawrie) b. This is an exception to hearsay. 3. The jury is to determine the weight it affords to the PIS under s 102 QEA a. Can consider whether statement made soon after the event (s 102(a)) and whether [witness] had any incentive to conceal or misrepresent the facts (s 102(b)). b. Made immediately after = significant weight etc 4. Go to “Prior Inconsistent Statements in Cross-Examination” notes for written PISs. 5. Demeanour a. Being shifty b. Not maintaining eye-contact c. Being argumentative d. There is no need for a voir dire because the jury would have already seen the witness acting inappropriately in the witness box! 6. Conduct in the Witness Box a. Uncooperative etc b. There is no need for a voir dire because the jury would have already seen the witness acting inappropriately in the witness box! 7. Choice of Language a. Swearing etc b. There is no need for a voir dire because the jury would have already seen the witness acting inappropriately in the witness box! 8. Answers to Non-Leading Questions a. Rigid, refusing to answer properly. b. There is no need for a voir dire because the jury would have already seen the witness acting inappropriately in the witness box! 9. Effect of declaration of hostility a. After [witness] is declared hostile, calling counsel can proceed to cross-examine [witness] and ask leading questions (Hunter; Hutchinson) Page 2 of 6 Nick Dowse Hostile Witnesses i. Can be cross-examined as to facts in issue, as well as the witness’s credit (Thynne). b. A conviction may be overturned where a witness is inappropriately declared hostile (Kong @ [21]-[28]). c. Section 18 QEA does not apply to hostile witnesses (Baira @ [27]-[29]): i. That is, the circumstances of the PIS need not be mentioned to the witness and the witness need not be asked whether or not the witness has made such statement under s 18 QEA. ii. Section 17 permits proof, once leave is given, of the inconsistent statement of a hostile witness, which then, by virtue of s 101, becomes admissible as evidence of the facts stated in it. Section 18 is an entirely different mechanism, and has no application to the situation where the court has formed the opinion that the witness is adverse (per Holmes JA @ [29]). R v Hadlow • Hadlow appealed his conviction of the murder of an 8 year old girl • A set of sheets was found in a garbage bag – medical evidence showed that the vomit found on the sheets were the deceased girl’s vomit • Hadlow’s wife identified the sheets as coming from her household and repeated this at committal • On trial, Hadlow’s wife then denied that she ever saw the sheets before • Trial judge declared her a hostile witness and gave leave was given to Prosecutor to cross- examine on PIS • The trial judge declared Hadlow’s wife as a hostile witness without conducting a voir dire • Hadlow appealed to the Court of Appeal on the ground that the trial judge wrongly declared a witness to be an adverse witness • Court of Appeal dismissed the appeal • The Court of Appeal held that the application for leave to prove the making of a prior inconsistent statement under s 17 QEA was distinct from proving a witness adverse R v Morris • Morris called as a witness to the murder of man who lived in a refuge • Morris gave evidence inconsistent with statement made to police • During the trial, Morris was declared a hostile witness • Cross-examined on PIS that was argued • High Court said that there was no reason to rely on s 17 QEA to prove the truth of the contents of the PIS – the jury just had to decide which story to believe • But strong warning should be given to jury in relation to credit of witness who gives inconsistent stories R v Lawrie • Lawrie’s wife called as witness for the Crown for serious assault • During evidence-in-chief, Lawrie’s wife gave evidence of “getting Lawrie off” • Lawrie’s wife was declared hostile and then cross-examined • Her signature appeared on a previous statement (PIS) taken by police but she said it wasn’t true • She alleged that police had constructed that statement and she merely said yes or no • Therefore, called hostile and the PIS (police statement) was proven by virtue of s 17 with court’s leave • Therefore, the truth of the contents of the PIS was proven by s 101 QEA • It was up to the jury to decide the weight to be given to the PIS under s 102 QEA Page 3 of 6 Nick Dowse Hostile Witnesses Clarification on whether ss 18 and 19 of
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