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Cross-Examination on Documents

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Queensland University of Technology

Nick Dowse Cross-examination on Documents Cross-Examination on Documents – Structure of Answer Rule in Walker v Walker If a cross examiner calls for and reads a document of the other side, they must tender it as part of their evidence, even if some parts are unfavourable: Rule in Walker v Walker. Rationale – to prevent distortion by counsel in cross-examination. Exception – where document was used by other side to refresh memory: McGregor. If cross- examiner limits their questions to parts of a document used to refresh memory then do not need to tender the document as part of their evidence. NB. Original notes: Recall rules about refreshing memory: Essentially, if the document does not revive the witness’ memory, the opposition should object and request that the original document be produced to the court in order for the evidence given by the witness to the admissible (King v Bryant). However, there may be circumstances where the document is not produced in court due to a failure of the opposing party’s objection requiring that evidence be produced in court. The rule in Walker v Walker: Cross-examining counsel can “call” for a document where it has been used to refresh memory, whether inside or outside the courtroom: Kingston. When a cross-examiner calls for and is given and reads a document which is referred to by the other party’s witness, the cross-examiner must then tender that document as their own evidence: Walker v Walker. The rule applies even if the document is: • unfavourable to the cross-examining party’s case and/or • otherwise inadmissible. Rationale: The requirement for the cross-examiner to tender that document as part of their own evidence serves to prevent distortion of the contents of the document by counsel in cross- examination. Cross-examination on document: If a document called is produced, the counsel can cross- examine on the document used to refresh the memory within limits – • only that part which is used to refresh the memory can be cross-examined • only that part used to refresh memory can be inspected The cross-examiner cannot cross-examine the document outside the parts used to refresh the witness’ memory (R v McGregor). Walker v Walker • Action for money for support of the estranged spouse • Wife (W) was arguing Husband’s (H) capacity to pay and gave oral evidence that he was earning £700 – £750 per annum • Counsel for H objected on the basis that she didn’t know • W said she had a letter in which a non-party (A) wrote to another non-party (B) and had made inquiries into the H’s income • Counsel for H called for the letter from A to B (non-parties). This letter explained details of his income (statement out of court relying on truth – hearsay) • The letter confirmed that H was earning £700 – £750 per annum • Counsel for H got the letter and read it • Counsel for W then forced him to tender it as evidence of his own case (admissible through the fact that Page 1 of 3 Nick Dowse Cross-examination on Documents H’s counsel read it regardless of hearsay issue) R v McGregor • Charged with armed robbery in circumstances where he had allegedly phoned an escort agency in Cairns and spoke to someone who ran the escort agency and asked for a lady • A note was made of the name and address of the accused by a witness and then a woman was dispatched to his home • After the provision of the relevant service he was asked to pay with his bank card – produced it and it was used to swipe with old fashioned, portable credit card machine • Then produced his service revolver (was a police officer) and demanded both the credit card and the impression of card • Woman went back to the escort agency a
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