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Nick Dowse Re-examination Re-examination – Structure of Answer The purpose of re-examination is for the party who originally called the witness to clear up any matters left unclear or ambiguous at the conclusion of cross-examination, and to add material without which a distorted view of the witness’ evidence would remain (Wojcic v Incorporated Nominal Defendant). General rules: The same restrictions applicable in evidence-in-chief are applicable in re-examination. • That is, counsel cannot cross-examine (i.e. ask leading questions of your own witness) • Re-examination is not an opportunity to restate all the things raised in examination-in-chief • Counsel cannot pick up something he accidentally left out in examination-in-chief Re-examination is restricted to matters raised in cross-examination, so counsel cannot introduce new materials. Fundamental objectives during re-examination • Clarify matters left in confusion following cross-examination • Repair credit of witness • Counsel in re-examination had the advantage, as the answers given in re-examination have the last theatrical impact of the questioning. If evidence can clarify or explain a matter, it is permitted, even if it is inadmissible otherwise. • An example of this is self-serving statements (e.g. prior consistent statement) to rebut afterthought (Nominal Defendant v Clements). • The evidence will be admissible even if it is damaging to the other side (Singleton). Singleton • S was charged with drug offences – it was alleged that he received some sort of prohibited drugs • The Crown called a witness and during examination-in-chief, he gave evidence that S committed the offence, had knowingly received the dangerous drugs and paid money for them • During cross-examination, defence counsel had a PIS by the witness where he had virtually exculpated S • This was adduced into evidence by s 18 QEA which was enlivened by the witness admitting that he had made the PIS but denied that it was true • The weight had to be assessed under s 102 – motive of the witness relevant for why they made the PIS • Crown re-examined the witness to repair the credit of the witness – had to explain the PIS if they could • Asked witness to tell circumstances in which made statement – A: “Well I made it in collaboration with the accused, S, and his wife, and the reason I did that was because I was scared and I was prepared to write anything that they wanted me to.” Q: “Why were you scared?” A: “The appellant is a bad man and he carries firearms and he is accustomed to use them, and bash people up and generally be a dreadful person…” • Held: Generally, such evidence of other crimes committed by the accused and evidence of a general bad character is inadmissible • Therefore, the Crown cannot attack credit of accused in its case • But as there had been cross-examination of the witness about a PIS, the Crown was entitled to repair the witness’ credit in re-examination • The witness explained why they made the PIS so that the tribunal of fact could assess its weight • When looking at why the PIS was made, it is necessary to explain that the accused is guilty of what would otherwise be inadmissible criminal activity • Hence, the Crown managed to get into evidence highly prejudicial evidence of the activities of S Page 1 of 5 Nick Dowse Re-examination RE-OPENING AND REBUTTAL EVIDENCE Generally, it is all over in re-examination, because all evidential matter that the Crown or plaintiff intends to rely upon is to be adduced before the close of the Crown/Plaintiff’s case. However, it is possible that rebuttal evidence might be called to counter something that is bottled up during re- examination. Fundamental Rule: Rebuttal evidence is only permitted in exceptional circumstances. It would only be in very unusual circumstances that a court will allow a party to bring rebuttal evidence (Shaw). Rationale: The rationale is fairness to accused/Defendant to know the case to be met. Allowing parties to continue giving evidence may cause an imbalance in the trial process and result in potential unfairness. Further, the last evidence to be heard may assume disproportionate significance (Chin). Chin • Mr Chin and Mr Chu charged with being unlawfully involved in the importation of heroin • Mr Chin would bring drugs into the country, take it to the Hotel room in Sydney, where he was met by Mr Chu who would take it away and realise the proceeds • Chin was observed at Sydney Airport carrying drugs • He was allowed to go to Hotel – where the police busted them at the hotel • Chin argued that he had never heard of Mr Chu, and that an acquaintance had given him a package he was carrying to Sydney • In Chu’s defence, he argued he had never heard of Chin – he argued that he was told that if he went to Chin’s door then someone would show him around Sydney • But on the visa applications both used the same phone number as an emergency contact • It was Mr. Chin’s father in law’s escort agency phone number • This inferred that they did know one another prior to coming to Sydney • The Crown waited until case was closed • Chin gave evidence – he put these forms to Chin and it was only at that point the Crown tendered the visa application • Held: Once a case is closed it is too late to get the evidence in • Suggestion in this case that there is a slightly less rigorous rule applying to cross examination on rebuttal matter • A very strict view that they would not be allowed even in circumstances even where they were PIS relevant to the subject matter and not distinctly admitted by the witness Page 2 of 5 Nick Dowse Re-examination Exceptions Leave will be given where: Where rule in Browne v Dunn has been breached: When a party has been cross-examined in breach of the rule in Browne v Dunn, the trial judge can allow rebuttal evidence to be called by the party that is being cross-examined. This has a very significant effect as it will be the last evidence the tribunal of fact hears on the point. Prior inconsistent statements of witness: As s 18 QEA allows a PIS to be proved as to the truth of its contents if the witness does not admit the PIS, the question arises as to whether the witness can prove or disprove the PIS. It is up to the discretion of the court to weigh up the probative force and prejudicial effect and determine whether it would be fair to allow rebuttal
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