Cross-examination — improper; of defendant

[1-340] Improper questions put to witness in cross-examination
[1-341] Notes
[1-342] Cross-examination concerning complainant’s prior sexual history
[1-343] Cross-examination of defendant as to credibility
[1-347] Notes

To top [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 The Evidence Amendment Act 2007 (which applies to proceedings commenced on or after 1 January 2009) repealed s 275A Criminal Procedure Act 1986 and re-enacted s 41 in the terms quoted below.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.

To top [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.

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

Section 293(2) Criminal Procedure Act 1986 provides that evidence relating to the prior sexual history of the complainant is inadmissible subject to exceptions outlined in s 293(4)(a)–(f). See GEH v R (2012) 217 A Crim R 487, JAD v R [2012] NSWCCA 73. The procedure that should be adopted by counsel making an application under s 293 is as stated by the court in R v McGarvey (1987) 10 NSWLR 632: Taylor v R (2009) 78 NSWLR 198 at [44]. For s 293 to be workable, counsel and the judge must know in advance the substance of the evidence that will be elicited. To that end, counsel should provide the trial judge with a detailed written statement of the evidence proposed to be led. Some detail is required to determine whether the evidence falls within the parameters of s 293(4) and to determine the probative value of the evidence. Before the evidence is given, the court is required by s 293(8) to give precise written reasons for admitting the evidence and recording the nature and scope of the admitted evidence: Taylor v R at [44]–[47]. The judge’s ruling should be made “with some precision”: Dimian v R (1995) 83 A Crim R 358 at 367. However, there is no need for the questions that are to be asked to be specifically identified: Taylor v R at [48].

To top [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.

To top [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) 190 A Crim R 454 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] NSWCCA 111 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].