R v Lam (No 13)
[2005] VSC 287
•26 May 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1505 of 2003
| THE QUEEN |
| v |
| CUONG QUOC LAM & ORS |
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JUDGE: | Redlich J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 January 2005 to 19 September 2005 | |
DATE OF RULING: | 26 May 2005 | |
CASE MAY BE CITED AS: | R v Cuong Quoc Lam & Ors | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 287 | First Revision: 5 April 2006 |
RULING NO. 13
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Evidence – Re-Examination of hostile witness – Prosecution granted leave to ask leading questions in chief – Whether prosecution has right to re-examine – Right to ask further leading questions in re-examination.
Inappropriate manner of cross-examination
Cross examination as to circumstance in which prior statement made – Witness’s motive for bringing statement into existence – Extent to which prior statement can be introduced into evidence in re-examination –- Re-establishing witness’s credit - Nature and scope of re-examination considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Dean S.C. with Mr P. Southey | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For Cuong Quoc Lam | Mr S. Grant | Michael Gleeson & Associates |
| For Hung Tu Van | Mr A. Jackson | Haines & Polities |
| For Linh Van Nguyen | Mr D. Brustman | Valos Black & Associates |
| For Thanh Nha Nguyen | Mr F. Gucciardo | Theo Magazis & Associates |
| For Long Thanh Tran | Mr G. Mullaly | Victoria Legal Aid |
| For Hong Bui | Mr J. Saunders | Valos Black & Associates |
| For Hoang Tran | Mr M. Rochford | Brendan Wilkinson |
HIS HONOUR:
By way of leading questions, Senior counsel for the prosecution seeks to re-examine the witness Mark Ung as to the substance of his first police statement. He also seeks to play three parts of Ung’s video interview to the jury and to ask leading questions about those passages played to the jury.
The witness Mark Ung had been treated as hostile in evidence in chief and the prosecution was given leave to cross-examine as to the matters contained in his police interview. In cross-examination Counsel for Cuong Lam suggested that the investigators had conveyed to the witness the suggestion that Cuong Lam was at the river armed with a Samurai sword. It was put to the witness that as the witness did not want the investigators to prosecute him for making an initial false statement, he gave a false account in his interview that he observed Cuong Lam at the river, based on what the investigators had suggested to him. It would be open to the jury to conclude that the witness, at least in part, had agreed with the general tenor of that cross examination. Following this cross-examination by counsel for Cuong Lam, who was the first accused listed on the presentment, and before other defence counsel had cross-examined Mark Ung, the prosecutor put other defence counsel on notice that if permitted to do so, he intended to re-examine the witness to place the substance of the witness’s first statement before the jury and play three passages of his video interview of 30 July 2002 with investigating police. If the introduction of such evidence was to be allowed it had the potential to affect the nature of the cross-examination undertaken by other defence counsel. With the concurrence of all counsel, I heard argument before other defence counsel cross-examined Mark Ung, as to whether the Crown would be permitted to re-examine the witness on the subjects and in the manner proposed.
No issue was taken with the prosector’s right to re-examine as to the first police statement or the playing of the first passage (Questions 1-74) of the video interview on the ground that these matters had been opened up in cross-examination. Argument was confined to the question as to whether the Crown should be permitted in re-examination to play the second and third passages of his video interview to the jury and ask leading questions in relation thereto. Only counsel for Cuong Lam and Hung Van opposed such a course. It was contended by counsel for Cuong Lam that as the prosecution had cross-examined the witness in evidence-in-chief it had no right to re-examine and that it should not be allowed to do that which it could have done in evidence-in-chief. Alternatively it was argued that if re-examination was allowed, it should not be permitted to elicit evidence that was repetitious of the evidence in chief. Finally it was said that if re-examination was permitted, the prosecution should not be permitted to ask leading questions. Counsel for Cuong Lam indicated that he may wish to further cross-examine the witness if re-examination on these matters was permitted.
I ruled that the prosecution was entitled to re-examine the witness in a leading manner in relation to each of these passages; the three excerpts were played and the witness acknowledged those passages as being part of his video interview. With certain qualifications which he volunteered, the witness acknowledged the truthfulness of his answers in those passages.
No objection was taken to the form of any questions asked by the senior prosecutor during the course of re-examination. No request was made on Cuong Lam’s behalf to further cross-examine the witness
These are my reasons for permitting the prosecution to re-examine, and in re-examination to play the three identified passages from the witness’s video interview and to ask the witness questions in a leading form in relation to those passages.
Re-examination as to Mark Ung’s first statement
In response to leading questions in evidence-in-chief, the witness had said that he had told the police the truth in his video interview when he said he saw Cuong Lam at the river. Counsel for Cuong Lam then cross-examined the witness about his statement to police of 8 July 2002. (First Statement.) The witness agreed that he had said things in the first statement which were false, but the jury was not told what those matters were. Counsel for Cuong Lam then put to the witness that he had never referred to Cuong Lam at all when he made the first statement. This cross-examination had the potential to mislead the jury as they may have been left with the impression that the witness had spoken of events at the river, but had omitted to make any reference to Cuong Lam. In fact, the witness’s first statement made no reference to events at the river as the witness had falsely denied that he ever went to the river.
At the conclusion of cross-examination by counsel for Cuong Lam, the senior prosecutor foreshadowed his intention to re-examine the witness to establish that in the first statement the witness had falsely denied that he went to the river. It was submitted that this would explain why he had made no reference to his observation of Cuong Lam at the river, a matter he had deposed to in his evidence-in-chief. Counsel for Cuong Lam did not dispute that the nature of his cross-examination entitled the prosecution to identify before the jury what it was in Ung’s first statement that was false[1] and hence why there would be no reference to Cuong Lam in the first statement.
[1]T at 5205.
The first statement also contained a false claim that the accused Hoang Tran was at all material times in Mark Ung’s company in his car, carrying with it the implication that Hoang Tran could have played no role in the murder of any of the deceased. Such evidence, if elicited, would be prejudicial to Hoang Tran particularly as Hoang Tran had also made an initial false statement to the same effect. The prosecutor stated that if he was permitted to do so he would summarise the falsity of the witness’s first statement by making reference only to the fact that the witness had falsely denied going to the river and would make no reference to Mark Ung’s false account of Hoang Tran’s movements. No objection was taken by any defence counsel to this proposed course which was in my view appropriate. The prosecution disavowed any intention to rely on the fact that Hoang Tran and Ung had both initially provided the same false account to police that Hoang Tran was at all material times in Mark Ung’s car.
Re-examination to play three identified passages in Mark Ung’s video interview
I had ruled the witness Mark Ung be treated as hostile during his evidence-in-chief and gave the prosecution leave to cross-examine him as to the content of his video interview.[2] In reaching that conclusion, I relied upon his demeanour and the inconsistency of his evidence with the facts asserted in his video interview and the evidence of independent witnesses who had already testified as to movements of his car and people at the scene of the murder.
[2]See Ruling 12 [2005] VSC 286.
The witness adopted his statement of January 2005, as his evidence-in-chief at the Basha Inquiry. The witness in substance testified that he saw Cuong Lam armed with a sword jogging across Alexandra Avenue toward the river when he did the U-turn in his car. He also said he could not say who the person was that got into the front of his car when it was parked at the river. Counsel for Cuong Lam at the Basha Inquiry, ignoring that evidence-in-chief, suggested that what the witness was saying to the Court was that at no stage was Cuong Lam in his car and that at no time did he see Cuong Lam at the river. The witness at the Basha Inquiry in contradiction of his evidence-in-chief readily adopted these suggestions. These propositions were put without any attempt to challenge or refer to the contrary evidence which the witness had already given.
During the course of the witness’s testimony on the Basha Inquiry and his evidence before the jury, I detected a degree of familiarity between counsel for Cuong Lam and the witness. After the witness’s testimony had concluded, counsel for Cuong Lam informed me, in the absence of the jury, that he had conferred with the witness prior to the committal proceedings and had advised the witness to seek a lawyer’s advice. The witness subsequently refused to testify at the committal.
After giving the prosecution leave to cross examine in evidence-in-chief before the jury, Mr Ung testified that his account to investigators in July 2002 was the truth, that he had seen Cuong Lam at the river armed with a sword and that he could not say whether he got into his car. In cross-examination by counsel for Cuong Lam the witness, in contradiction of his evidence-in-chief, readily agreed that the answers which he had given on the Basha Inquiry, to which I have referred, were the truth, namely that he did not see Cuong Lam at the river and that Cuong Lam did not get into his car at the river. Again, no attempt was made to challenge or refer to the evidence-in-chief he had given. In further cross-examination he said he had seen Cuong Lam with a sword that night, but could not say where he saw him with the sword and further he could not say whether it was Cuong Lam who got into his car.
Mr Ung was reluctant in evidence-in-chief to narrate what he actually observed and heard. In a previous ruling, I have discussed the motives which may explain his unwillingness to be truthful in relation to the events outside the Salt Nightclub and the events at the river.[3] By contrast to his demeanour whilst answering questions of the prosecutor when he frequently claimed to be unable to remember, in cross-examination he willingly assented to propositions with which he was invited to agree which were inconsistent with his evidence-in-chief. No objection was taken by the prosecution to this form of cross-examination in the Basha Inquiry or before the jury.
[3]See Footnote 2 Ruling 12.
The witness also agreed in cross-examination that immediately following questions 1-69 of his interview, in which he had said nothing about Cuong Lam, he had given the following answer to investigators:
“and sitting, I mean parked at the river all I remember was what I said to you before, just may be seeing Cuong at the river”.
Defence counsel then suggested to the witness that he gave that answer in the interview because the police had mentioned Cuong’s name to him prior to the interview. He agreed. The witness then appeared to adopt the suggestion in cross-examination that the police had conveyed to the witness that Cuong Lam was at the river and that he thereafter gave a false account in his interview to avoid prosecution for making an initial false statement.
As a consequence of the manner in which the witness had been cross-examined, the prosecution submitted it was entitled to clarify what the witness observed at the murder scene and what he had told the investigators about it in his video interview. The senior prosecutor submitted that he should be permitted to play three passages in the video interview before the jury to demonstrate how the witness had come to speak about Cuong Lam at the river. He submitted that that these passages would show the manner in which he had recounted his observations of Cuong Lam at the river and would throw light on the role of the investigators during the interview and the witness’s motives for co-operation.
It could not be disputed that cross-examination had opened up the circumstances in which the witness came to be interviewed and in particular when and in what manner he came to speak of the incident at the river concerning Cuong Lam. Counsel for Cuong Lam did not object to the prosecution playing the first passage of the video interview being questions and answers 1 to 74 in re-examination. He objected to the playing of the second passage (questions and answers 221 to 359) and the third passage (questions and answers 528 to 533) of the video interview. It was not submitted that his cross-examination did not open up these matters, but, it was said that the prosecution, having been given general leave to cross-examine could have taken the witness to any of these parts of the interview in evidence-in-chief had it wished to do so.
The prosecution had not in fact been given leave to cross-examine at large and senior counsel did not attempt to cross-examine generally. Whatever the extent of the leave granted, the passages which would bear upon how the witness came to tell police of his observations of Cuong Lam, his reasons for co-operating and the role of the police in questioning him about such things had not yet been put in issue. They assumed no relevance, until made so by cross-examination. Until then the prosecutor had no cause to examine on such matters.
Alternatively, Counsel for Cuong Lam submitted that the prosecutor was intending to play some parts of the video interview which he had already put to the witness in the form of leading questions in evidence-in-chief and that to do so would merely be repetitious and should not be permitted. Implicit in the submission was the contention that even though his cross-examination explored such matters they could not be revisited in re-examination. I have already observed that the cross-examination by defence counsel was conducted as though the witness had not spoken on these subjects in evidence-in-chief. Counsel for Hung Van also contested the Crown’s right to re-examine on the second and third passages. He submitted that to permit the prosecution to do so would cause Hung Van “irremediable prejudice”. When pressed, counsel for Hung Van was unable to point to any matter contained in the video interview that directly related to his client; nor did he articulate how such prejudice would arise. He did not pursue this submission beyond adopting counsel for Cuong Lam’s submission that to play the video interview would involve repetition. No other counsel supported these submissions.
Senior counsel for the prosecution submitted that only some portions of the second and third passages which he wished to play to the jury in re-examination had been read to the witness in the course of his evidence-in-chief. He submitted that the nature of the cross-examination had opened up the issue of the context and manner in which the witness had come to provide answers to the investigators concerning Cuong Lam and the role played by the investigators in eliciting those answers.
Purpose of re-examination
The contention that the prosecution was not entitled to re-examine upon these subjects or to ask leading questions must be considered from the standpoint of principle.
The basic rule is that re-examination is confined to matters arising out of cross-examination.[4] Re-examination is not confined to the clearing up of ambiguities that have arisen in the course of cross-examination, but extends to cases where answers given in cross-examination may not, if left unexplained, constitute the whole truth[5] or would leave the tribunal of fact with a distorted or incomplete account by the witness which would disadvantage the side who called the witness.[6]
[4]Heydon, J.D. (2004) Cross on evidence (7th Australian ed.), Sydney, LexisNexis Butterworths, at [10.63].
[5]Wells, W.A.N. (1991) An introduction to the law of evidence: for police officers (4th ed.), Adelaide, Government Printer at 179; Waight P.K. and Williams, C.R. (1998) Evidence: commentary and materials (5th ed.), North Ryde, NSW, LBC Information Services at 365.
[6]Rv Nation [1954] SASR 189; R v Lavery (No. 2) (1979) 20 SASR 430; Szach v R (1980) 23 SASR 504 per Wells J at 517-8 and per King CJ at 568; R v Clune [1975] VR 723 at 734
The trial judge is entitled to examine the entirety of the witness’s evidence for the purposes of determining what are the implications of the cross-examination so as to determine the extent of the right to re-examine. As Wells J stated in Szach v R[7], an answer given in cross-examination, though clear and unequivocal, may give rise to extensive re-examination in order to place the answer in a true and fair perspective.
[7]Footnote 6 Szach at 512.
A party in re-examination may elicit facts from a witness they have called which will explain away or qualify facts that have been elicited from that witness in cross-examination; which are prejudicial to that party’s case or the witness’ credit; or from which prejudicial inferences could be drawn.[8] The limits on the extent of such re-examination were comprehensively examined by Doyle CJ in R v Martin (No.2).[9]
[8]Wojcic v Incorporated Nominal Defendant [1969] VR 323 at 327; Szach Footnote 6 per King CJ at 569; R v Haydon [2005] SASC 23 per Sulan J at [24]; Wigmore, John Henry (1969-1988), Evidence in trial at common law, Boston, Little Brown at section 1896.
[9](1997) 68 SASR 419 at 431-441.
Re-establishing credit in re-examination in relation to prior statements
As a general rule statements made by a witness out-of-court and of a self-serving nature are inadmissible and care is called for before a prior consistent statement may be introduced in re-examination. One definite exception is where the credit of the witness is impugned on the basis that the evidence is a recent invention. Where certain conditions are met, a prior consistent statement may be admitted into evidence where it “rationally tends to answer the attack” made upon the witness.[10] Although an earlier statement made by a witness is not admissible merely as confirmation of the evidence given by the witness, the nature of the imputations actually thrown out in cross-examination may make the statement or the circumstances in which it came to be made, admissible.[11]
[10]Nominal Defendant v Clements (1960) 104 CLR 476 per Dixon J at 480.
[11]Ibid per Menzies J at 484 and per Windeyer J at 491.
In Wojcic v Incorporated Nominal Defendant[12] the party calling the witness was permitted in re-examination to tender a report made by the witness which answered the imputations raised in his cross-examination.[13] The admissibility of the report during re-examination did not depend on it being referred to in cross-examination.
[12]Footnote 8 at 327.
[13]See Wentworth v Rogers (No. 10) (1987) 8 NSWLR 398; R v Phair [1986] 1 Qd R 136; Singletonv R [1986] 2 Qd R 535.
Where a motive is suggested to a witness for distorting the truth, the witness in re-examination may explain or clarify the nature of the motive and its effect.[14] Where a prior out-of-court statement is put to a witness in cross-examination which bears upon the credit of the witness or the facts about which the witness has testified, evidence which explains or qualifies the prior statement may be put and, if in writing, proved through re-examination.[15] Previous consistent statements may be introduced to restore the witness’s credit where allegations of fabrication have been made in cross-examination.[16]
[14]Footnote 6 Nation; Saleam v R 1(989) 41 A Crim R 108.
[15]Queen's Case (1820) 2 Brod & Bing 284 at 297; (1820) 129 ER 976 at 981; Alchin v Commissioner of Railways (1935) 35 SR (NSW) 498 per Jordan CJ at 509; Ligertwood, Andrew (1998) Australian Evidence (3rd ed.), Sydney, Butterworths at [7.109].
[16]Footnote 8 Wojcic v Incorporated Nominal Defendant; R v Lawless [1974] VR 398 at 404; Footnote 6 R v Clune at 734.
The right to re-examine to explain away or qualify facts elicited in cross-examination and which are prejudicial to a witness’s credit or from which prejudicial inferences could be drawn marches in tandem with the related principle that a witness who has been cross-examined as to part of a statement made by him may be re-examined as to other parts of the statement necessary to explain or qualify it.[17]
[17]See Footnote 13 Wentworth v Rogers at 409; R v Ambrosi (2004) 144 A Crim R 67; [2004] NSWCCA 23.
Street CJ in Meredith v Innes[18] referred to Prince v Samo[19] as authoritatively laying down the rule of law that a party in re-examination may be asked about so much of the subject matter of a conversation as was connected with the assertions to which the cross-examination related. Ever since The Queen’s Case[20], re-examination has been permitted to explain how and for what reason a witness came to make an out-of-court statement which has been referred to in cross-examination. Where a witness acknowledges in cross-examination that he made a statement with respect to a specified subject, counsel may in re-examination elicit from him the whole or such part of the conversation relative to that subject matter which is necessary to explain or qualify the part cross examined upon..
[18](1930) 31 SR (NSW) 104 at 112.
[19](1838) 7 Ad & El 627; (1838) 112 ER 606.
[20]See Footnote 15 (1820) 2 Brod & Bing 284 at 295 and (1820) 129 ER 976 at 980.
In Regina v Newall,[21] the Canadian Court of Appeal faced with circumstances similar to the present, held that a prior statement was admissible within re-examination as the witness’s credit had been impugned on the basis that she made a damaging statement against the accused and the suggestion could be inferred that the words in the statement had been put “into the mouth of the witness”. The Court found on the ground alone of that suggestion that the circumstances would have required that the statement be placed before the jury.[22] The same rationale underlies the proposition that a witness who admits making a former inconsistent statement may in re-examination explain his motives for doing so.[23]
[21](1984) 5 DLR (4th) 352 at 361-362.
[22]Ibid at 362.
[23]See Footnote 15 The Queen's case; See Footnote 6 Szach per King CJ.
R v Singleton[24] was a case in which cross-examination had explored the nature and content of a prior inconsistent statement and the motive of the witness for bringing it into existence. After reviewing a number of authorities including Wojcic v Incorporated Nominal Defendant, R v Clune and R v Phair , Macrossan J stated:
“Notwithstanding the assistance which a consideration of these cases affords, I do not think it is possible to formulate an inflexible rule which will determine the decision which should be made in all similar cases. If a cross-examination, either explicitly or by implication, substantially affects the credit of a witness in respect of his present testimony, then it will ordinarily be legitimate to seek to restore that credit by relevant re-examination of the witness’s reason for an attitude revealed or his motive for having acted in a certain way or having made a certain prior statement in the past when such matters elicited in cross-examination have, if unexplained, a tendency to damage the witness’s credit.”[25]
[24]See Footnote 13.
[25]Footnote 13 Singleton at 539.
De Jersey J similarly held that where the credibility of the witness has been damaged by virtue of a prior inconsistent statement, an explanation for the falsity of such statement, and how such a statement came into being, might re-establish the credit of the witness and provide a compelling reason why it should be elicited in re-examination.[26]
[26]Ibid at 546.
These well defined principles make plain that it could not be contended that the prosecution here would not ordinarily have had a right to re-examine on these subjects.
The right to re-examine where witness hostile
Beyond the assertion that there was no right to re-examine where the witness had been cross examined in chief by the party who called him, no submission was advanced as to why this should be so. No authority was cited in support of the contention.
In substance, defence counsel submitted that the prosecution lost the right to re-examine where the prosecution had been given general leave to cross-examine during the evidence-in-chief of the witness and could have, or alternatively did cross-examine on these subjects.
The senior prosecutor submitted that there was no basis upon which the prosecution should be precluded from re-examination of a witness because the witness, having been found to be hostile, was cross-examined by the prosecution in the course of evidence-in-chief.
I can see no reason grounded in principle why the party who called the witness should be denied the right to re-examine as to matters that have arisen out of cross examination by the other party, because the witness called by it was declared hostile and was cross-examined in evidence-in-chief. The fact that a witness has been declared hostile in evidence-in-chief does not call for the application of different principles to those which apply to re-examination of any other witness.
The trial judge clearly has a discretion to exclude or restrict the evidence that may be led in re-examination if it would be unfair or where its probative value to the facts in issue or the witness’s credit is outweighed by its prejudicial effect upon the accused.[27] The prejudice to the accused, arising from the risk of the improper use of the evidence, is discussed by Gleeson CJ in Festa v R.[28] No discretionary considerations have been raised which would require me to deny the prosecution its right to re-examine the witness.
[27]Ibid Singleton at 539.
[28](2001) 208 CLR 593
As the present circumstances illustrate, it is more likely that a witness hostile to the party that has called it, will assent to propositions put by the party cross-examining the witness and which in fairness should lead to the party who called the witness having an opportunity to re-examine on such a subject. The continuing hostility of the witness towards the prosecution and the manner and substance of the cross-examination of the witness by counsel for Cuong Lam provided additional reasons for permitting the prosecution to re-examine.
The suggestions made in cross-examination and the nature of the answers given by the witness entitled the prosecution to play the video interview of these passages in re-examination. The playing of the video would enable the jury to hear and observe the witness’s demeanour when recounting his observations. It would provide the context in which the jury could assess the attack made upon the truthfulness of the witness’s account given in the video interview. It may have thrown light upon the role played by the investigators and whether the account given by the witness was in fact his account or whether words were put in his mouth as suggested. It may have assisted the jury in making a determination as to whether the witness was truly speaking from memory or was fabricating his account to appease the investigators. The playing of the video in order for the jury to observe the manner in which the witness gave his account, including his detailed explanation as to how he came to see the accused Cuong Lam at that time and his use of a white board and map in the interview to show where he said he had made particular observations involved much more than the oral repetition of the words he used, some of which had been put to the witness during his evidence-in-chief.[29]
[29]See Footnote 9 Martin (1997) per Doyle CJ at 440.
Although parts of the passages which were to be played had been referred to in the witness’s evidence-in-chief, in the light of the conflict between the witness’s evidence-in-chief and cross-examination, the prosecution was also entitled to seek clarification and explanation of the witness’s position.
Questions which do not bring the witness’s attention to any inconsistency between the evidence that the witness has already given and the proposition with which the witness is invited to agree may produce unfairness. Even an impartial witness may not be sufficiently astute to appreciate that when counsel invites a witness to agree with a fact or, as in this case, makes a positive suggestion to the witness that the witness says a fact is correct[30], counsel may be suggesting something which is contradictory to the witness’s evidence-in-chief. Many witnesses, through complacence, are disposed to assent to the propositions of counsel from the Bar table, and to answer in accordance with counsel’s suggestion.[31] When such a proposition is assented to, and the inconsistency with the witness’s prior evidence is ignored, the tribunal of fact is left with two versions of the witnesses account and no exploration of the inconsistency between them. Where a witness gives what appears to be conflicting testimony in evidence-in-chief and cross-examination, particularly where cross-examining counsel ignores that conflict, the party calling the witness may seek, in re-examination, to have the witness clarify their position in relation to that evidence.
The circumstances which justify leading questions
[30]The witness prior evidence was to the opposite effect. The question so framed is objectionable.
[31]Mooney v James [1949] VLR 22 at 27.
It was also submitted that if there was a right to re-examine in such circumstances the prosecution should not be permitted to ask leading questions and that to permit the prosecution to play the video interview was akin to asking leading questions.
The principle that a party calling a witness may not generally ask the witness leading questions is designed to protect the integrity of the evidence and requires the witness to testify in their own words. The party calling the witness is not permitted to suggest a desired answer or base a question upon a set of assumptions.
The trial judge has the power to control the form in which questions are put during any stage of a witness’s testimony, the discretion being exercised in accordance with the judge’s duty to ensure that a trial is conducted in a way which is fair to all parties.[32] Where the prosecution, in accordance with its obligations, is obliged to call a witness notwithstanding that the evidence which the witness will give is likely to be unfavourable, Hunt CJ at common law in R v Milat considered it to be unjust for the prosecution to be denied leave to cross-examine such a witness.[33]
[32]See Footnote 30 Mooney v James; GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No. 3) (1990) 20 NSWLR 15 at 22-23; Stack v State of Western Australia (2004) 29 WAR 526; [2004] WASCA 300 at [28]; Rawcliffe v R (2000) 22 WAR 490; (2000) 115 A Crim R 509.
[33]R v Milat, Unreported, NSWSC, 23 April 1996.
The circumstances in which the common law recognises a right by a party to cross-examine a witness called by that party was extensively considered in the judgments of Kennedy ACJ and Miller J in Rawcliffe v R.[34] In Clarke v Saffery[35] Best CJ held that where a witness by his conduct showed himself to be adverse to the party calling him, that party’s counsel may “as a matter of right cross-examine him.” Immediately following Clarke in the report is Bastin v Carew[36] in which Lord Abbott CJ, stated that the presiding judge has a discretion as to the mode in which examination should be conducted in order to best serve the purposes of justice. Subsequently, Coleridge J in R v Murphy[37], Lord Abinger CB in R v Chapman[38] and subsequently the Court of Appeal in Price v Manning[39], disapproving of Clarke v Saffery, expressed a preference for the view that the trial judge has a discretionary power to permit leading questions where a witness shows bias. This reflects the present common law position.
[34]Footnote 30 Rawcliffe.
[35](1824) Ry & M 126.
[36](1824) Ry & M 126.
[37](1837) 8 C & P 297 at 306.
[38](1838) 8 C & P 558 at 559.
[39](1889) 42 Ch D 372 per Cotton LJ at 373 and per Fry LJ at 374.
The power of the trial judge to control the form in which questions may be couched was discussed in the well known judgment of Barry J in Mooney v James[40] who reviewed the decision of a Magistrate who had held that leading questions could not be put to a witness in cross-examination, as the witness had showed partisanship towards the party cross-examining. Barry J observed:
[40]See Footnote 30.
“The writers on evidence are also in agreement that as a general rule leading questions are permissible in cross-examination (Phillips, op cit, at 472; Starkie, op cit, at 196; Best, op cit, at 561; Taylor, op cit, at 912; Wigmore, op cit at 130 and 430; Phipson on Evidence (1942), (8th ed.), at 468). The most qualified statement is by Chitty (op cit, at 772-3) who, observes:
‘As regards the mode of cross-examination, it is a common doctrine, that when a witness has been examined in chief, the counsel of the opponent, whether plaintiff or defendant, may put any question at all relevant to the cause he may think fit, and in a manner however leading. But we have attempted to show that the principle on which objections to leading questions is founded is much more extensive, and is not confined to questions to a witness in chief, but equally extends to a witness when under cross-examination, unless it appears that the person is not the witness of truth, but evidently endeavouring to conceal the truth from the counsel who was examining him, whether for or against the plaintiff, and in which case the most leading questions ought to be permitted. And in practice the position that leading questions may be put in cross-examination is now considerably qualified; for if the witness betray an anxiety to serve the party against whom he was examined as a witness in chief, a direct leading question will not then be permitted in cross-examination’.
In Dickinson v Shee [1801] 4 Esp 67, Lord Kenyon CJ, ruled that a leading question that went to the essence of the defence was permissible in cross-examination, and in Parkin v Moon [1836] 7 C & P 408, an unwilling witness for the defendant was being cross-examined by counsel for the plaintiff ‘by putting leading questions in the usual way’ as the report expresses it, and upon objection taken, Alderson B, said:
‘I apprehend you may put a leading question to an unwilling witness on the examination in chief at the discretion of the Judge; but you may always put a leading question in cross-examination, whether a witness be unwilling or not’.
I consider the learned Baron overstated the position, however, and that there is no absolute right to put leading questions in cross-examination. The basis of the rule that leading questions may be put in cross-examination is the assumption that the witness’s partisanship, conscious or unconscious, in combination with the circumstance that he is being questioned by an adversary will produce a state of mind that will protect him against suggestibility. But if the Judge is satisfied that there is no ground for the assumption, the rule has no application, and the Judge may forbid cross-examination by questions which go to the length of putting into the witness’s mouth the very words he is to echo back again. (Compare R v Hardy [1794] 24 How St Tr 659 per Buller J at 755). Answers given in such circumstances usually would not assist the Court in its investigation because they would be valueless, and in the exercise of his power to control and regulate the proceedings the Judge may properly require counsel to abandon a worthless method of examination. This brings out an essential feature of trial by British Courts, namely, that it is the duty of the Judge to regulate and control the proceeding so that the issues for adjudication may be investigated fully and fairly.
The circumstances that the proceeding is one between adversaries each contending for the decision imposes limits, as was pointed out by Professor Morgan in the passage quoted above, upon the effectiveness with which the Judge can perform his duty. Within these limits, however, the existence of this duty clothes the Judge with all the discretionary powers necessary for the discharge of the duty, and he may therefore control and regulate the manner in which the evidence is presented or elicited. Rules that would exclude the trial Judge’s discretion upon such matters have never taken firm root. … Usually it will be the duty of the Judge to prevent counsel for the party who calls the witness from putting questions that suggest the desired answers, and to permit counsel for the opposing party to put such questions. But in his discretion, which must be exercised upon judicial grounds, the judge, if he thinks the interests of justice require it, may permit questions which suggest the desired answers to be put in examination in chief, and may forbid them in cross-examination.”[41]
[41]Ibid at 27-29.
There has been a general judicial acceptance that these observations are an authoritative guide as to when cross-examination should be allowed.[42] They are relevant to the right to ask leading questions in evidence in chief, cross-examination, and re-examination.
Leading questions in re-examination of a witness declared or treated as hostile
[42]Alcoa of Australia Ltd v McKenna (2003) 8 VR 452 [at 26]; R v Lawless Footnote 16 at 415; R v Richards (2001) 123 A Crim R 14; [2001] NSWCCA 160; Kranz v R (1991) 53 A Crim R 331 at 340; Stack v State of Western Australia Footnote 31; B & R & The Separate Representative (1995) 127 FLR 438; (1995) 19 Fam LR 594; Gordon v Carroll, Catoni & Hospital Employees Federation of Australia (1975) 6 ALR 579.
The provisions of the uniform Evidence Acts of the Commonwealth and New South Wales reflects the common law position which permits a court in the exercise of its discretion to disallow cross-examination where the evidence given by the witness in examination-in-chief was unfavourable to the party who called the witness or the witness demonstrated an interest consistent with the interest of or was sympathetic to the party conducting the cross-examination.[43]
[43]Section 42(2).
In a criminal trial the circumstances may be rare where an accused or his representative should be denied the right to cross-examine a prosecution witness even where they are hostile to the prosecution. But such an adverse disposition may be significant when the manner of re-examination by the prosecution falls for consideration. The prohibition against leading questions by the party calling the witness rests, at least in part, upon the assumption that the witness has a bias in favour of the party calling him.
Some degree of leading in re-examination will often be necessary to bring the witness to the area of cross-examination which requires explanation.[44] Under the Commonwealth and New South Wales Evidence Acts leading questions may be permitted in re-examination with the court’s leave. [45]
[44]See the reference to Taylor’ treatise on the law of evidence in Mooney v James Footnote 30 at 26.
[45]See section 37(1)(a) Evidence Act 1993 (C’th).
In Rawcliffe v R[46] the Court of Appeal rejected the contention that the trial judge did not have a discretion to permit the prosecutor to put leading questions in re-examination.[47] The witness was not declared hostile in evidence-in-chief and did not give any evidence in chief which related to the subject matter of the cross-examination which gave rise to the prosecutor asking leading questions in re-examination. During the course of cross-examination on behalf of the accused the witness was described as a “willing witness” but no objection was taken by the prosecutor or the trial judge to the form of questions being put in cross-examination. In re-examination the prosecutor asked a number of leading questions which were the subject of objection by counsel for the accused. The trial judge permitted the cross-examination to proceed as Her Honour had formed the view that the witness was adverse to the prosecution and partisan to the accused. Kennedy ACJ referred to a number of texts on evidence which suggest that where a witness, although called by the party examining, is biased against that party’s cause and is indisposed to favour it by accepting suggestions of desired testimony, no objection can be taken to leading questions.[48] Where the witness has already been declared or treated as hostile Kennedy ACJ was not in any doubt as to the propriety of asking leading questions in re-examination.[49] His Honour was of the view that a discretion to allow this existed even where the witness was not “hostile”. Miller J concluded that even where a witness had not been treated as hostile the authorities demonstrated that:
“ … In an exceptional case where the issues for adjudication would otherwise not be fully and fairly investigated, leave may be granted to counsel for the Crown to ask leading questions of his witness after a cross-examination in which counsel for the defence has gone so far as to put what Barry J described as ‘into the witness’ mouth the very words he is to echo back again’.”[50]
Miller J was referring to the judgment of Barry J in Mooney v James and the passage to which I have made extensive reference.[51]
[46]See Footnote 30.
[47]Ibid Footnote 30 Rawcliffe per Kennedy ACJ at[26]; per Pidgeon J at [30] and per Miller J at [54]-[55].
[48]Taylor, John Pitt (1931) A treatise on the law of evidence as administered in England and Ireland….., (12th ed.), London, Sweet & Maxwell at [1404]; Ligertwood, Footnote 15 at 405; Wigmore, Footnote 8 Chadbourn Revision at [774]; Best, W.M. (1893) The principles of the law of evidence….., ( 8th ed.), London, Sweet & Maxwell at 594 [645.6].
[49]Footnote 30 Rawcliffe at [26]
[50]Ibid Footnote 30 Rawcliffe at [54].
[51]An application to the High Court for special leave on another ground was refused on 24 October 2001.
The submission that the Crown should not be permitted to re-examine by way of leading questions is unsustainable. Considered from the standpoint of principle, it must always be a matter for the trial judge whether to allow cross-examination of a witness at any stage of the witness’s testimony. In determining whether or not the prosecution should be permitted to cross-examine the witness in re-examination, what occurred in the course of cross-examination of that witness by the other party is of particular importance. So also are the considerations which led to the giving of leave to cross-examine or ask leading questions in chief. Ultimately the question must be resolved by a determination of whether it is fair and just that the prosecution be permitted to further cross-examine or ask leading questions of the witness in re-examination.
This witness during cross-examination by defence counsel, continued to demonstrate his partisan attitude through his gratuitous concurrence with suggestions that were inconsistent with the evidence he had given[52]. His evidence and demeanour in cross-examination conveyed a continued unwillingness to be truthful.[53] The prosecution was entitled to examine him by way of leading questions with reference to the passages of the video interview. In allowing it to do so I was satisfied that the witness was unlikely to assent to propositions put to him in a leading manner by the prosecutor, which were adverse to Cuong Lam, unless they were propositions with which he, upon serious reflection, agreed.
[52]His answers in cross examination were also inconsistent with the witness’s subsequent re-examination.
[53]Footnote 31 Stack v State of Western Australia [2004] WASCA 300 at [44]-[47].
The qualified responses of the witness in the re-examination by the prosecutor that then ensued confirmed my assessment of the witness that he would not necessarily agree with propositions put to him by the prosecutor in a leading fashion that were adverse to Cuong Lam.
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