Public Defenders

Evidence - The Use of Documents in Cross-Examination and Examination in Chief in Criminal Trials


by Dina Yehia SC


1. This paper will discuss a number of provisions under the Evidence Act 1995 that deal with the use of documents, during both cross-examination and examination-in-chief, in criminal proceedings. I will deal specifically with sections 32, 38, 43, 44, 45 and 108 (3).


Section 43 Prior Inconsistent Statements of Witnesses

(1) A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness whether or not:
(a) complete particulars of the statement have been given to the witness; or

(b) a document containing a record of the statement has been shown to the witness.

(2) If, in cross-examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner:
(a) informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement; and

(b) drew the witness's attention to so much of the statement as is inconsistent with the witness's evidence.

(3) For the purpose of adducing evidence of the statement, a party may re-open the party's case.

2. A prior inconsistent statement is defined in the Dictionary as 'a previous representation that is inconsistent with evidence given by the witness'.

3. Where a witness acknowledges the making of a prior inconsistent statement, it is not necessary to show the witness the document containing that statement.

4. However, where the cross-examiner intends to adduce evidence of a prior inconsistent statement that the witness does not acknowledge, the cross-examiner must do two things:

Identify the circumstances in which the statement was made; and

Identify the inconsistencies between the representation in court and the statement that appears in the document.

5. Section 43 imposes procedural requirements on the cross-examiner where the witness does not acknowledge making the prior inconsistent statement. The primary purpose of s 43(2) is to allow the witness a proper opportunity to consider precisely what he/she is asserted to have said and precisely how that is asserted to be inconsistent with the in court evidence: Aslett v The Queen [2006] NSWCCA 49 per Barr J (with whom Spigelman CJ and Howie J agreed at [75]-[76]). Odgers 'uniform Evidence Law', 9 th edition at page 152

6. In practical terms, where a witness does not acknowledge making the prior inconsistent statement the cross-examiner should:

Show the document to the witness.

Outline the circumstances in which the prior inconsistent statement was made.

Draw the witness's attention to the point of inconsistency.

If the witness continues to deny making the statement, have the document marked for identification until you can call evidence of the making of the statement, for example, evidence from the police officer who took the statement, at which point the document could be tendered.

7. Failure to follow this procedure could lead to the exclusion of the document containing the prior inconsistent statement. In JCS v The Queen [2006] NSWCCA 221, a letter containing a prior inconsistent statement was inadmissible because counsel had not informed the witness of the provenance of the letter. There had been no evidence of where the letter had been obtained and limited evidence that it had been written by the witness.

8. A brief summary of some of the relevant cases illustrates circumstances where section 43 has operated:

R v Gee [2000] 113 A Crim R 376: This case involved a charge of armed robbery. The Crown called the appellant's de-facto partner and his daughter's de fact partner to give evidence that the recognised the appellant in CCTV photographs. The witnesses gave evidence that they were unsure. The Crown was permitted to lead evidence from the police that each witness had previously positively identified the appellant from the CCTV footage.

The Court held that having been given leave to cross-examine under s 38, the Crown was entitled by s 43 (1) to put to witnesses their earlier positive identification and entitled under s 43(2) to call evidence from police witnesses of such identification. The evidence of the prior inconsistent statements was admitted as going to the truth of the facts asserted: s60.

R v Aslett NSWCCA 49 (24.3.2006): Four offenders had broken into a home unit and robbed the occupants. During the course of the home invasion, a 16-year old occupant was sexually assaulted. During the course of the trial, records of interview of two of the co-accused were admitted against the appellant after the co-accused refused to give evidence.

The appeal was dismissed. The Court stated that s43(2) does not prevent the tender of prior inconsistent statements to prove the truth of the facts asserted: s60.

JCS & JMS [2006] NSWCCA 221, 164 A Crim R 1: Charges were brought against the complainant's natural mother and stepfather that included unlawful imprisonment and failure to provide for the child. The defence sought to tender a letter alleged to have been written by the complainant containing prior inconsistent statements. The complainant denied writing the letter. The trial judge refused the tender.

The Court held that there was no error in excluding the letter as the defence had failed to establish provenance of the letter: s43(2)(a).

Section 108(3) Re-establishing Credibility

9. Prior to the Evidence Act, the common law allowed evidence of a prior consistent statement where a suggestion of recent fabrication was put to a witness. However, under section 108(3) a prior consistent statement can be led, with the leave of the court, if:
evidence of a prior inconsistent statement has been admitted;

it is or will be suggested that the evidence is fabricated, reconstructed (deliberately or otherwise) or is the result of suggestion.

10. Simply putting to a Crown witness that the alleged crime never happened will not enliven s 108(3). For a prior consistent statement to be admissible, it must be capable of rationally answering the suggestion that the evidence is a fabrication or reconstruction. Where it is put to the witness that the evidence is a fabrication and the prior consistent statement is simply an account the same as that of the in court evidence, it adds nothing to that evidence and is inadmissible: R v Ali [2000] NSWCCA 177 at [46].

11. However, where the cross-examination relates the fabricated evidence to a particular event or time, then a prior consistent statement is admissible if capable of rebutting the suggestion: R v Ali at [47].

Section 44 Previous Representations of Other Persons

(1) Except as provided by this section, a cross-examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness.

(2) A cross-examiner may question a witness about the representation and its contents if:

(a) evidence of the representation has been admitted; or

(b) the court is satisfied that it will be admitted.

(3) If subsection (2) does not apply and the representation is contained in a document, the document may only be used to question a witness as follows:

(a) the document must be produced to the witness;

(b) if the document is a tape recording, or any other kind of document from which sounds are reproduced the witness must be provided with the means (for example, headphones) to listen to the contents of the document without other persons present at the cross-examination hearing those contents;

(c) the witness must be asked whether, having examined (or heard) the contents of the document, the witness stands by the evidence that he or she has given;

(d) neither the cross-examiner nor the witness is to identify the document or disclose any of its contents.

(4) A document that is so used may be marked for identification.

12. The general rule is that a cross-examiner cannot question a witness about a previous representation alleged to have been made by another person. There are some exceptions to this general rule:

Where the evidence about the representation has been admitted; or

The court is satisfied it will be admitted.

13. In R v S [2003] NSWCCA 122 Mason P observed at [49]:

Section (2) of 44 conditionally lifts the barriers that prevent identification of the document or disclosure of its contents to the jury. It permits the cross-examiner to question a witness about the previous representation and its contents but only if s 44(2) (a) and (b) are satisfied.

14. Where the evidence has not been and will not be admitted, the cross-examiner cannot ask questions of the witness that would tend to identify the document or its contents. The cross-examiner should do the following:

Show the witness the document.

Ask the witness to read the document to him/herself.

Ask the witness whether he/she adheres to their evidence.

15. Merely showing such a document to the witness does not require the cross-examiner to tender the document: s 45(5). However, a cross-examiner should not use this procedure in an effort to confuse or mislead a witness or to suggest that the document asserts something contrary to the witness's evidence. Where a cross-examiner uses a document in cross-examination he/she may be ordered to produce the document to the court or the other party.

16. Some relevant cases are:

Regina v Morgan [2000] NSWCCA 7: the appellant was convicted of an offence of robbery. The Crown had relied upon photographs taken from the bank security camera. The accused called a photogrammetry expert to cast doubt on the evidence that the offender was the appellant.

The Crown was permitted to cross-examine the expert on a report prepared by another expert in a different case. The report was identified and the contents described before the jury. The court, allowing the appeal, held that the cross-examination was a breach of s44. The Crown had gained a substantial advantage from the breach.

Regina v Bevan [2002] NSWCCA 224: the appellant was charged with on going supply of drugs. The Crown, in cross examination of the appellant, suggested that the accused had accumulated large amounts of money from illicit dealings well prior to the subject offences and had laundered that money through playing poker machines.

During cross-examination the Crown put to the appellant that she and her husband had put through the poker machines approximately $95,000. The Crown was referring to a RSL document that was not that of the witness. In doing so there was a breach of s 44. There was no attempt to link temporally the RSL information with the offending behaviour. The appeal was upheld.

Regina v S [2003] NSWCCA122: the appellant was convicted of a sexual assault offence. The Crown called a complaint witness (Ms Singleton) who gave evidence that the complainant had complained to her of being sexually assaulted by the appellant. Defence counsel cross-examined Ms Singleton about the complaint evidence, putting that the complainant had not complained of a sexual assault. The complaint, at paragraph 40 of her statement, gave an account of complaining to Ms Singleton about a physical, non-sexual assault.

Defence Counsel sought to show the witness paragraph 40 of the complaint's statement and ask her whether she adhered to her evidence. The trial judge criticised counsel in front of the jury and insisted that he was entitled to be informed that the document was not that of the witness before the witness was confronted with it.

The court held that defence counsel did not breach s 44. Counsel was not at fault in putting to the document to the witness without prior permission from the judge as long as she did not transgress s 44(3)(d). If counsel sought to go the next step (ie revealing the contents of paragraph 40) it would have been necessary to inform the judge and satisfy the court that the evidence will be admitted. Section 45 gave the trial judge discretion to require production of the document and admit it into evidence.

Section 45 Production of Documents

(1) This section applies if a party is cross-examining or has cross-examined a witness about:

(a) a prior inconsistent statement alleged to have been made by the witness that is recorded in a document; or

(b) a previous representation alleged to have been made by another person that is recorded in a document.

(2) If the court so orders or if another party so requires, the party must produce:

(a) the document; or

(b) such evidence of the contents of the document as is available to the party;

to the court or to that other party.

(3) The court may:

(a) examine a document or evidence that has been so produced; and

(b) give directions as to its use; and

(c) admit it even if it has not been tendered by a party.

(4) Subsection (3) does not permit the court to admit a document or evidence that is not admissible because of Chapter 3.

(5) The mere production of a document to a witness who is being cross-examined does not give rise to a requirement that the cross-examiner tender the document.

17. While there is no obligation on the cross-examiner to tender a document that has been used in cross-examination, the court may admit it even if it has not been tendered by either party: s 45(3)(c). It is unclear as to the circumstances in which a court would do so. One example may be where there has been a breach of s 44(3)(d) by a cross-examiner who identifies a document that is made by a third person or discloses some of its contents. Odgers, Ibid at page 159

18. Another circumstance in which the court may admit a statement that has been used in cross-examination is where it has been falsely suggested that the statement contains a prior inconsistent statement.


Section 32: Attempts To Revive Memory In Court

(1) A witness must not, in the course of giving evidence, use a document to try revive his or her memory about a fact or opinion unless the court gives leave.

(2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account:

(a) whether the witness will be able to recall the fact or opinion adequately without using the document; and

(b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that:

i. was written or made by the witness when the events recorded in it were fresh in his or her memory; or

ii. was, at such a time found by the witness to be accurate.

(3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion.

(4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party.

19. Some important factors are:

A witness cannot use a document to try to revive his/her memory unless leave is granted.

You must therefore address the matters set out in s 32(2) and s 192 which deals with the grant of leave generally

The Court is to take into account whether the witness will be able to adequately remember the evidence without reference to the document.

The Court is to take into account whether the document was written or made by the witness when the events recorded in it were fresh in his/her memory.

Under s 32(3), if a witness has used a document to revive his/her memory about a fact or opinion, the witness could, with the leave of the Court, read aloud as much of the document as relates to that fact or opinion. However, where the document contains an account that is in objectionable form, leave should not be granted.

Under s 32(4) a direction to produce a document to a party may be made. Note that under s 35(1) a party is not required to tender a document simply because he/she called for its production. Equally, the party producing the document is not entitled to tender it on the basis that it has been produced to or inspected by the other party: s 35(2).

20. What then is meant by the phrase 'fresh in the memory'? This phrase has been judicially considered in the context of s 66 and the application of that section particularly in relation to sexual assault complaint evidence. Prior to the insertion of s 66 (2A), the term 'fresh in the memory' had been considered in the High Court decision of Graham v The Queen (1998) 195 CLR 606. In the majority decision (by Gaudron, Gummow and Hayne JJ at 405), it was stated:

The word 'fresh', in its context in s 66, means 'recent' or 'immediate'. It may also carry with it a connotation that describes the quality of the memory(as being not deteriorated or changed by lapse of time) but the core of the meaning intended is to describe the temporal relationship between the 'occurrence if the asserted fact' and the time of the making of the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years.

16. Cases subsequent to Graham v The Queen indicated that the Court of Criminal appeal was prepared to take a wider approach to the meaning of 'freshness', in line with the ALRC proposed amendment to s 66 of the Evidence Act so as to make it clear that the quality of 'freshness' not be confined to the time which lapses between the occurrence of the relevant event and the making of a representation about the event. ALRC 102 (paragraphs8:122) cited in Odgers 'Uniform Evidence Law' (eighth edition at page 256

17. Following the amendment to s 66 the Court of Criminal appeal has considered the approach to the construction of s 66(2) and s 66(2A) with respect to the phrase 'fresh in the memory of', in the case of Regina v XY [2010] NSWCCA 181. The case came before the Court by way of a 5F appeal by the Crown after the trial judge had excluded some evidence of complaint on the basis that a series of representations were not 'fresh in the memory' of the complainant at the time they were made to the witness.

18. The accused had been charged with 4 counts of sexual assault with a child under 10. The evidence suggested that the offences had taken place between 2003 and September 2005. The first complaint was to a school friend in 2007 and to the complainant's parents in 2009. The question was whether the meaning of 'fresh' was confined to temporal criteria. The Court decided that the quality of 'freshness' should not be restricted to the time which lapses between the occurrence of an event and the making f the representation.

19. It is uncertain as to whether the same interpretation will be applied to the phrase 'fresh in his/her memory' within the context of s 32.

Section 38 Unfavourable Witnesses

(1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about:

(a) evidence given by the witness that is unfavourable to the party; or

(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or

(c) whether the witness has, at any time, made a prior inconsistent statement.

(2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39).

(3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility.

Note:The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7.

(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.

(5) If the court so directs, the order in which the parties question the witness is to be as the court directs.

(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account:

(a)[Cth and NSW Acts only]whether the party gave notice at the earliest opportunity of the party's intention to seek leave; and

(a)[Vic Act only]whether the party gave notice at the earliest opportunity of the party's intention to seek leave; and

Note:Paragraph (a) differs from the Commonwealth Act and New South Wales Act.

(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

(7) A party is subject to the same liability to be cross-examined under this section as any other witness if:

(a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person; and

(b) the party is a witness in the proceeding.

21. Under the common law a party calling a witness could cross-examine that witness in limited circumstances: primarily where that witness was considered 'hostile' or not willing to tell the whole truth. Section 38 has effected significant changes to the common law principles. Section 38 provides that a party calling a witness can, with the leave of the court, cross-examine that witness about:
evidence 'unfavourable' to the party;

matters the witness should know about and where the witness is not making a genuine attempt to give evidence about;

prior inconsistent statement.

22. There are a number of points of importance: the first matter to note is that the term 'unfavourable' does not mean adverse or hostile. It includes a situation where a witness does not genuinely remember the events in question: Lozano NSWCCA unreported 10.6.1997.

23. Secondly, there are different views about how broad the cross-examination can be pursuant to section 38. On a narrow approach, cross-examination is only permissible in respect of the particular evidence that is 'unfavourable': R v Hogan [2001] NSWCCA 292.

24. However, there is authority for the proposition that once evidence is held to be 'unfavourable' a witness can be cross-examined more generally with a view to shaking his/her credibility in the course of establishing the probability or improbability of the witness's account: R v Le [2002] 186 at [67] per Heydon JA; see also R v White [2003] NSWCCA 64 at [66]-[67].

25. Thirdly, the Crown can call a witness even where the Crown knows that the witness will give unfavourable evidence. Section 38 is not restricted to situations where a witness unexpectedly recants from the statement: R v Fowler [2000] NSWCCA 142.

26. Fourthly, where a Crown seeks leave pursuant to s 38, it should do so before the defence cross-examines. However, if the witness gives the unfavourable evidence during the defence cross-examination, the Crown may be successful in obtaining leave to cross-examine under s38: R v Burrell [2007] NSWCCA 65 at [237].

27. The courts have disapproved of section 38 being used as a tactical device, for example, where a Crown is aware that the witness will give unfavourable evidence but delays making an application until after the defence has cross-examined: Regina v Parkes (2003) 147 A Crim R 450 at [71] to [75].

28. Finally, where the Crown calls a witness out of fairness to the defence only and simply adduces the witness's formal details, the Crown can seek leave to cross-examine that witness pursuant to s 38, after the defence has cross-examined: R v Milat NSWSC (unreported 22 April 1996).

Dina Yehia SC
Public Defender
27 October 2010