Cross-examination — improper; of defendant

[1-340] Improper questions put to witness in cross-examination

Section 41 Evidence Act 1995 empowers the court to disallow improper questions put to a witness in cross-examination. The Evidence Amendment Act 2007 (which applies to proceedings commenced on or after 1 January 2009) repealed s 275A Criminal Procedure Act 1986 and re-enacted s 41 in the terms quoted below. Section 41 applies to criminal and civil proceedings and is not restricted to sexual assault matters. Section 41 provides:

(1) 

The court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a “disallowable question”):

(a) 

is misleading or confusing, or

(b) 

is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, or

(c) 

is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate, or

(d) 

has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability).

(2) 

Without limiting the matters the court may take into account for the purposes of subsection (1), it is to take into account:

(a) 

any relevant condition or characteristic of the witness of which the court is, or is made, aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality, and

(b) 

any mental, intellectual or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject, and

(c) 

the context in which the question is put, including:

(i) 

the nature of the proceeding, and

(ii) 

in a criminal proceeding—the nature of the offence to which the proceeding relates, and

(iii) 

the relationship (if any) between the witness and any other party to the proceeding

(5) 

However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question.

(6) 

A failure by the court to disallow a question under this section, or to inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question.

[1-341] Notes

1. 

Section 41 imposes a mandatory duty on the court to disallow a question if the court forms the opinion that the question is a disallowable question: see further Uniform Evidence Law, ALRC Report 102 (Final Report), 2005 at [5.90], [5.114]. The Court of Criminal Appeal confirmed that the now repealed s 275A(5) Criminal Procedure Act 1986, which had materially similar language to s 41(5), imposed an obligation on a court to disallow an improper question. This was the case regardless of whether an objection was taken by a party to the question: FDP v R (2009) 74 NSWLR 645 at [26]–[28]; Gillies v DPP [2008] NSWCCA 339 at [65].

2. 

Spigelman CJ said when dealing with a previous statutory form of s 41 in R v TA (2003) 57 NSWLR 444 at [8]:

Judges play an important role in protecting complainants from unnecessary, inappropriate and irrelevant questioning by or on behalf of an accused. That role is perfectly consistent with the requirements of a fair trial, which requirements do not involve treating the criminal justice system as if it were a forensic game in which every accused is entitled to some kind of sporting chance.

3. 

Section 41 is premised on an assumption that the question will elicit relevant evidence: R v TA at [12]. The court must balance the probative value of the (relevant) evidence sought to be elicited with the effect of the cross-examination upon the witness: R v TA at [8], [13]. If the probative force of an anticipated answer is likely to be slight, even a small element of harassment, offence or oppression would be enough for the court to disallow the question: R v TA at [12].

4. 

Section 41 is not the only source of law for improper questions. In Libke v The Queen (2007) 230 CLR 559, Heydon J detailed the law governing cross-examination generally, including the powers of a cross-examiner: at [118]; offensive questioning: at [121]; comments by a cross-examiner during the course of questioning: at [125]; compound questions (simultaneously pose more than one inquiry and call for more than one answer): at [127]; cutting off answers before they were completed: at [128]; questions resting on controversial assumptions: at [129]; argumentative questions: at [131] and the role of the judge: at [133]. The court held the judge should have intervened to control persistently inappropriate commentary by the prosecutor to prevent any later suggestion of unfairness: at [41], [53], [84], [133]. Hayne J discussed the role of the judge at [84]–[85].

See also P Johnson, “Controlling unreasonable cross-examination” (2009) 21(4) JOB 29.

[1-342] Cross-examination concerning complainant’s prior sexual history

Sections 293(2) and 293(3) Criminal Procedure Act 1986 provide that evidence relating to the prior sexual history of the complainant is inadmissible subject to exceptions outlined in s 293(4)(a)–(f). Evidence falling within the exceptions can only be admitted if its probative value outweighs any distress, humiliation or embarrassment the complainant might suffer as a result of its admission: s 293(4).

Sections 293(5) to 293(8) set out the procedure for determining whether evidence said to fall within the identified exceptions in s 293(4) may be admitted. In summary:

  • evidence related to the complainant’s sexual reputation, sexual experience or sexual activity cannot be given unless the court has first decided the evidence is admissible: s 293(5)

  • questions of the admissibility of the evidence are determined in the absence of the jury: s 293(7)

  • the accused may be permitted to cross-examine a complainant concerning evidence of the complainant’s sexual experience, or lack of it, or participation or lack of participation in sexual activity, if the evidence was disclosed or implied in the prosecution case, and the accused would be unfairly prejudiced if not able to do so: s 293(6)

  • if the court decides the evidence is admissible, written reasons must be given identifying with clarity the nature and scope of the evidence and the reasons for concluding it is admissible, before the evidence is led: s 293(8).

There has been some controversy associated with s 293 since it was first enacted, principally because of its capacity to prejudice an accused in the conduct of their trial. A five-judge Bench was convened in Jackmain (a pseudonym) v R [2020] NSWCCA 150 to consider how s 293 applied in the context of allegations of previous unrelated false complaints and the correctness of M v R (unrep, 15/9/93, NSWCCA) (where it was held, in respect of an earlier version of s 293, that it extended to exclude such evidence). The controversy concerning the section and the relevant case law was summarised by Leeming JA at [88]–[178].

Section 293 was designed to exclude, to a significant degree, cross-examination of a complainant’s sexual activity or experience with only limited exceptions: Jackmain v R at [15]. Its purpose is to protect sexual assault complainants and prevent embarrassing and humiliating cross-examination of a complainant about their past sexual activities: Jackmain v R at [23]–[24]; [233]; [246]–[247]; GP v R [2016] NSWCCA 150 at [40].

Section 293 renders otherwise relevant evidence inadmissible; if the evidence in question is irrelevant, or otherwise inadmissible, it does not fall within the parameters of s 293: Decision Restricted [2021] NSWCCA 51 at [42]; R v Morgan (1993) 30 NSWLR 543 at 544; see also HG v The Queen (1999) 197 CLR 414 at [24].

The procedure for determining admissibility

The procedure contemplated by s 293(7) for determining whether evidence is admissible is a voir dire: Uddin v R [2020] NSWCCA 115 at [56]. To facilitate the conduct of the voir dire, s 293 must be read down to permit evidence that would otherwise be inadmissible to be given so the task under ss 293(6) and 293(7) can be performed. The effect is that the exclusionary rules in ss 293(2) and 293(3) do not apply to evidence given during the voir dire: Uddin v R at [53]–[58]; [94]; Jackmain v R at [16]; [91]–[95]; [248].

Generally, counsel should provide a detailed written statement of the evidence proposed to be led so the trial judge can determine whether the evidence falls within the parameters of s 293(4) and its probative value: Taylor v R (2009) 78 NSWLR 198 at [44]–[45]. In Jackmain v R, at [248], Wilson J (Johnson J agreeing at [234]) observed that ordinarily the voir dire would be conducted on the documents as “it would be wholly inconsistent with the intention of the legislature … for a complainant to be required to give evidence viva voce and endure the sort of humiliating and distressing cross-examination that the Parliament sought to prevent.” In an appropriate case, however, it may be necessary for oral evidence to be given: see for example Uddin v R at [94], where the oral evidence was to be given by persons other than the complainant.

Before the evidence is given, precise written reasons must be given for admitting the evidence and recording the nature and scope of the admitted evidence (s 293(8)): Taylor v R at [44]–[47]; Dimian v R (unrep, 23/11/95, NSWCCA). However, there is no need for the questions that are to be asked to be specifically identified: Taylor v R at [48].

Whether the evidence discloses the complainant has had sexual experience or taken part in sexual activity in s 293(3) is determined according to ordinary evidentiary principles: Uddin v R at [107].

The exclusions in s 293(4)

Within the very narrow parameters of the provision, s 293(4) should be construed broadly in the interests of the accused: R v Taylor at [36]; Decision Restricted [2021] NSWCCA 51 at [55]–[57]. However, it is important to bear in mind the intent of the legislature in introducing s 293 and its predecessors. In GP v R [2016] NSWCCA 150, Payne JA (McCallum and Wilson JJ agreeing) said at [40]–[41]:

Section 293 … clearly strikes a balance between competing interests being, on the one hand the interest of preventing distressing and humiliating cross-examination of sexual assault victims about their prior sexual history and on the other, the interest of permitting an accused person to cross-examine victims about defined aspects of their sexual history in the circumstances prescribed in the exceptions contained within s 293.

[A]n approach to construction which seeks to discern a single purpose, and construing the legislation as though it pursued that purpose to the fullest extent possible may be contrary to the manifest intention of the legislation.

A number of cases have considered aspects of the exclusions in s 293(4). As to:

  • the meaning of the expression “connected set of circumstances” and “at or about the time of” in s 293(4)(a) see: Jackmain v R at [189]–[195] and particularly at [191] where emphasis was given to the very short temporal period intended to apply; R v Morgan (1993) 30 NSWLR 543 (decided under s 409B, the predecessor provision); R v Edwards [2015] NSWCCA 24 at [25]–[30]; GEH v R [2012] NSWCCA 150 at [11]–[13] (Basten JA) and [35] (Harrison J); Decision Restricted [2021] NSWCCA 51 at [59]–[60] (Leeming JA, Walton J agreeing) but cf Adamson J at [88]–[91].

  • the fact false complaint evidence may have the capacity to fall within the exceptions in s 293(4) see: Adams v R [2018] NSWCCA 303 at [163]–[177]. Where there is false complaint evidence years remote from the alleged offending, the temporal requirement in s 293(4)(a) cannot be satisfied: Jackmain v R at [25]; [190]; [235]; [238]; [240].

  • whether evidence of fear and anxiety constitutes “disease or injury…attributable to the sexual intercourse so alleged” referred to in s 293(4)(c) see: GP v R [2016] NSWCCA 150 at [34], [44]; a psychological condition of diagnosed depression and suicidal ideation falls within the term “disease or injury”: JAD v R [2012] NSWCCA 73 at [83].

  • the phrase “sexual intercourse so alleged” in s 293(4)(c)(i) includes only the physical act and excludes issues of consent: Taleb v R [2015] NSWCCA 105 at [93].

In Decision Restricted [2021] NSWCCA 51, Leeming JA (Walton J agreeing; Adamson J dissenting) observed, at [64], that when weighing the probative value of the evidence “the distress, humiliation or embarrassment” to the complainant that was relevant was that which was over and above that which would inevitably occur by giving evidence even without reference to the matters caught by s 293.

[1-343] Cross-examination of defendant as to credibility

Section 104 of the Evidence Act 1995 provides for further protections in relation to cross-examination as to credibility in addition to those prescribed in ss 102 and 103. The section outlines the circumstances where leave is, and is not, required to cross-examine a defendant as to his or her credibility. Section 104 provides:

(1) 

This section applies only to credibility evidence in a criminal proceeding and so applies in addition to section 103.

(2) 

A defendant must not be cross-examined about a matter that is relevant to the assessment of the defendant’s credibility, unless the court gives leave.

(3) 

Despite subsection (2), leave is not required for cross-examination by the prosecutor about whether the defendant:

(a) 

is biased or has a motive to be untruthful, or

(b) 

is, or was, unable to be aware of or recall matters to which his or her evidence relates, or

(c) 

has made a prior inconsistent statement.

(4) 

Leave must not be given for cross-examination by the prosecutor under subsection (2) unless evidence adduced by the defendant has been admitted that:

(a) 

tends to prove that a witness called by the prosecutor has a tendency to be untruthful, and

(b) 

is relevant solely or mainly to the witness’s credibility.

(5) 

A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to:

(a) 

the events in relation to which the defendant is being prosecuted, or

(b) 

the investigation of the offence for which the defendant is being prosecuted.

(6) 

Leave is not to be given for cross-examination by another defendant unless:

(a) 

the evidence that the defendant to be cross-examined has given includes evidence adverse to the defendant seeking leave to cross-examine, and

(b) 

that evidence has been admitted.

[1-347] Notes

1. 

Section 104 applies “only to credibility evidence in a criminal proceeding”: s 104(1). If the evidence is relevant for some other purpose and admissible under Pt 3.2–3.6, s 104 does not apply: s 101A; R v Spiteri (2004) 61 NSWLR 369 at [35]. The issue of whether a particular item of evidence is relevant only to the credibility of a witness or not will depend upon the facts and circumstances of each individual case: Peacock v R [2008] NSWCCA 264 at [51].

2. 

A defendant must not be cross-examined about a matter that is relevant to the assessment of the defendant’s credibility, unless the court gives leave: s 104(2). Leave to cross-examine a defendant by the prosecutor is not required where it is directed to whether the defendant: is biased or has a motive to be untruthful; is unable to recall matters to which his or her evidence relates; or, has made a prior inconsistent statement: s 104(3). There is a general discussion of the credibility provisions in Tieu v R (2016) 92 NSWLR 94 at [26]–[47], [135]–[136].

3. 

Where leave is required under s 104(2), it is essential that the court give proper attention to the requirements of s 104 and make a specific determination as to leave: Tieu v R at [142], [136], [139]. The court should ask the prosecution to address in submissions the gateway provisions in ss 104(4), 103 and 192: Tieu v R at [141]–[143]. The general leave provision under s 192(2) is engaged: Tieu v R at [36], [135]. The court must take into account the non-exhaustive list of matters in s 192 in deciding whether to grant leave: Stanoevski v The Queen (2001) 202 CLR 115 at [41] (also discussed in Character at [2-350]); R v El-Azzi [2004] NSWCCA 455 at [270]. The evidence must also satisfy the requirements of both s 104(4) and s 103: R v El-Azzi at [250]. The common law resistance to allowing evidence of prior criminal history is also relevant in guiding the exercise of the s 104(2) discretion: R v El-Azzi at [199]–[200]. Ordinarily the danger of unfair prejudice created by evidence of a serious criminal conviction would substantially outweigh its probative value: R v El-Azzi at [199]–[200]. The judge did not err in the particular case by permitting cross-examination of the defendant about a corruption offence: R v El-Azzi at [200]–[201].

4. 

Section 104(6) addresses cross-examination by another defendant. The provision “applies only to credibility evidence”: s 104(1). To that extent it does not cover the field on the topic of cross-examination by another defendant. The court in R v Fernando [1999] NSWCCA 66 at [287]–[290] made reference to the (common) law on the subject of cross-examination by another defendant. Although leave was not sought under s 104(6), the court noted at [287] that the purpose of s 104(6) is to create a “restriction of cross-examination of an accused person directed to the issue of credibility”.

For commentary and directions on the accused’s right to silence see Silence — Evidence of at [4-100]–[4-130].