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Finality of Answers to Collateral Issues

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Nick Dowse Finality of Answers to Collateral Issues Finality of Answers to Collateral Issues – Structure of Answer Issue: Can [counsel] call further evidence of [fact]? Here, [counsel] intends to call further evidence about [facts] which were matters raised in [witness]’s cross-examination. Finality rule: Answers to collateral issues in cross-examination are final, thus cannot contradict by calling further evidence about [fact] unless an exception applies: Piddington v Bennett and Wood. Is [answer] a collateral or main fact in issue? IF MAIN FACT IN ISSUE The finality rule does not apply and further evidence can be called. IF COLLATERAL ISSUE [Evidence/answer] is a collateral issue as relates to the credibility of a witness, the admissibility of evidence and judicial discretion. They are not raised in examination in chief because they are not relevant to the main facts in issue. (Finality rule applies – GOTO exceptions to finality rule) IF witness called who claimed to be in area when saw/heard accident/incident in question If the Court is deciding whether the Court believes his/her story about whether they were in that place – this is a collateral issue as it goes to credit: majority in Piddington. Whereas if the court is determining whether he/she in place to see the accident (ability to see & observation skills) – main fact in issue. Thus no need to consider exceptions as finality only applies to collateral facts and thus could call evidence about [fact]. Piddington v Bennett and Wood • Plaintiff claimed he had been injured as a result of the Defendant breaching his duty of care while driving around a corner in Martin Place • Witness gave evidence in chief that he was standing on a corner of a street and saw D driving around a corner quite quickly so as to endanger P • Witness was cross-examined by counsel and asked why he had been standing there at the relevant time • Witness replied that he had been to the bank to cash a cheque • This was not in fact true • Could the defence counsel call the bank manager as a witness to refute the evidence of the witness? i.e. is this a collateral issue? • Held: The reason given by the witness (who was an eyewitness) as to why they he was in the vicinity of the accident (i.e. to do some banking) was a matter that went to his credit only and was simply a collateral issue – this was despite the unanimous finding by Court that the witness’ presence was an issue in the case • It was a collateral issue because whether or not he had been to the bank was only indirectly relevant to whether he could see the events as eyewitness or how he saw it as he described it Can ask witness question multiple times: This does not mean that the cross-examiner cannot ask the same question more than once in an effort to get the witness to change their answer (Western Australia v Watson). The only “remedy” against a witness who falsely denies a cross-examiner’s question going only to credibility is a later prosecution for perjury, but this is unhelpful to the cross- examiner in the case being tried. Finality rule is rule of evidence: It has been suggested that it is possibly a flexible standard because it is often difficult to determine whether a piece of evidence is collateral or not (Goldsmith v Sandilands). But it is now settled that by the High Court that it is a rule of evidence, not merely a rule of case management (R v Nicholls). Page 1 of 5 Nick Dowse Finality of Answers to Collateral Issues Goldsmith v Sandilands • Accident on 26 June 1993 • Goldsmith sued Sandilands (police officer in police car) for damages arising out of a road accident • Issue was whether Goldsmith’s injury resulted from the police car chase or from indoor cricket injuries • Goldsmith alleged that Sandilands, who was driving a car, breached his duty of care in the management and control of a police car • Sandilands contended that Goldsmith was injured on the 22 June some 4 days before the accident whilst playing indoor cricket in Perth and wanted to lead evidence that – (a) Goldsmith had played indoor cricket; (b) Goldsmith was playing on the 22 June; and (c) That he said after he was picked up by Sandilands on 22 June at the indoor cricket ground that he stuffed his back playing indoor cricket • Goldsmith was cross examined and it was ascertained that he was playing cricket on a given night at the Strikers and had stated that he had injured his back • The defence counsel acting for Sandilands sought to lead evidence from his own client to contradict the evidence of where the actual cricket club was (i.e. the location) • The High Court held that it was a collateral issue as he admitted that he was playing cricket – the location of the cricket ground was of little consequence Exceptions to finality rule Five exceptions to finality rule: 1. Previous convictions 2. Bias 3. PIS 4. Notorious liars 5. Mental instability (1) Prior convictions of the witness In civil and criminal proceedings, witness not required to answer questions that show they have committed or have been charged with any offence if the rehabilitation period has expired, unless permitted by the Court (obtained on voir dire): s 15A QEA. IF adult Rehabilitation period = 10 years for adults: s 3 Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld). IF child Rehabilitation period = 5 years for children: s 3 Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld). IF period expired (ie. adult and offence was > 10 yrs ago; child and offence was > 5 yrs ago) [Witness] cannot be questioned about conviction as period has expired – matter is final. IF period not expired (ie. adult & offence was > 10 yrs ago; child & offence was > 5 yrs ago) [Witness] can be questioned about conviction as rehabilitation period has not expired. IF need more facts about age Page 2 of 5 Nick Dowse Finality of Answers to Collateral Issues Eg. for an adult at uni: If rehabilitation period still going – can ask. If expired then cannot ask. Thus need to know his/her age because if has been 10 years since was an adult then RP expired. Whereas if only in twenties, 10 years
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