cross examination & prior inconsistent statements chris hoy sc€¦ · anyone – judges...

© The New South Wales Bar Association - Professional Development Department of 27

Cross Examination & Prior Inconsistent Statements

Chris Hoy SC

May 2011

1. Introduction

I am sure you’ve all read dozens of advocacy papers and books and had far more illustrious

lectures (and lecturers) about the how to cross examine, the objectives of cross examination

and of course (if the lecturer is a barrister) the mandatory “war stories”.

In this paper I thought I would deal with the Evidence Act 1995 (NSW) in a very general way

and then touch upon an important aspect of cross examination, that is, prior inconsistent

statements. In so doing forgive me if you already know it or have heard it all before. 1

Overall, cross examination is probably the most demanding but also most exciting part of being

an advocate. For me it is one of the highlights of the best job in the world!

2. Evidence Act 1995 – NSW (“Act”)

As litigators and counsel we all wrestle with the various rules and requirements of the Evidence

Act 1995 both as it applies to the Commonwealth and in New South Wales. The

Commonwealth Evidence Act 1995 commenced on 18 April 1995 and the Evidence Act, 1995

(NSW) commenced on 1 September 1995. They have been with us now for over 15 years.

Unsurprisingly they have been subject to review and amendment ever since. That said we are

meant to understand and apply both Acts wherever necessary. That said we as the humble

tradesmen/persons are meant to understand and apply both Acts wherever necessary.

1 As a starting point for this paper I am grateful for the use of the Bar Practice Course paper “Cross Examination on Documents” by

R S McIlwaine SC and A J Stone updated August 1998 and reviewed August 2007 and Bar Practice Course paper by P Greenwood SC (2006). This paper is also a revamped version of my paper presented as a part of the University of New South Wales Litigation Class Lecture series in March 2011.


3. Starting Point

Naturally whatever jurisdiction and/or Court and/or tribunal you go to, it is sensible to check

beforehand whether the Act applies. If it does then check any admissibility issues that you think

may arise and refresh your memory as to the relevant provisions. No matter what sort of case it

is, I always check the relevant legislation. Even if I’ve done cases there many times before, I still

check. There’s always the possibility of an eager opponent (for whom the facts aren’t too good)

ready to show you up.

As you probably know there are a number of tribunals to which the Act does not apply. Section

4 prescribes “all Courts and proceedings to which the Evidence Act applies”. The Dictionary

within the Act also defines “NSW Court”:

“NSW Court means: (a) the Supreme Court, or (b) any other court created by Parliament, and includes any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of evidence. Note: The Commonwealth Act does not include this definition.”

4. Structure of the Act

When I started to think about writing the Paper I was minded (as with any case) to go back to

the Act itself. Coming from a criminal and civil penalty background this was my automatic

reaction. As with criminal charges and/or various corporate fraud and/or regulatory jurisdictions

I always check the relevant legislation as soon as I receive the brief – no matter how many

times I have seen it before it is always worthwhile to have another look. This is also the case

when it comes to looking at the evidence and admissibility – again I refer to the Act. Indeed

particularly so, if you come from the pre Act era, where after much angst as a young (-ish)

barrister I confess I took great glee in coming to the startlingly epiphany that the best objections

were simply phrased as being based on a very confident “Objection - form/substance, Your

Honour!” and then sitting down knowingly. This works no longer – the Act has ensured we have

to be far more zealous and appropriate in our consideration of the evidence and its admissibility.


The Act itself fosters this approach - It is divided into a series of chapters. Each Chapter

address a particular aspect of the laws of evidence and admissibility. I therefore thought you

may be therefore be assisted by me listing the contents of those chapters as a style of “ready

reckoner”.

Chapter 2 is all about how evidence is adduced in proceedings.

Part 2.1 deals with the adducing of evidence from witnesses.

Part 2.2 deals with the adducing of documentary evidence.

Part 2.3 deals with the adducing of other evidence e.g. views, demonstrations and/or

inspections.

Chapter 3 deals with a wide number of inclusionary and exclusionary rules as to the

admissibility of evidence.

Part 3.1 sets out the general inclusionary rule that relevant evidence is admissible.

Part 3.2 is about the exclusion of hearsay evidence and exceptions to the hearsay rule.

Part 3.3 is about exclusion of opinion evidence and exceptions to the opinion rule.

Part 3.4 is about admissions and the extent to which they are admissible as exceptions to the hearsay rule and the opinion rule.

Part 3.5 is about exclusion of certain evidence of judgments and convictions.

Part 3.6 is about exclusion of evidence of tendency or coincidence, and exceptions to the tendency rule and the coincidence rule.

Part 3.7 is about exclusion of evidence relevant only to credibility, and exceptions to the credibility rule.

Part 3.8 is about character evidence and the extent to which it is admissible as exceptions to the hearsay rule, the opinion rule, the tendency rule and the credibility rule.

Part 3.9 is about the requirements that must be satisfied before identification evidence is admissible.


Part 3.10 is about the various categories of privilege that may prevent evidence being adduced.

Part 3.11 provides for the discretionary and mandatory exclusion of evidence even if it would otherwise be admissible.

Chapter 4 describes the various standards and requirements relating to proofs.

Part 4.1 is about the standard of proof in civil proceedings and in criminal proceedings.

Part 4.2 is about matters that do not require proof in a proceeding.

Part 4.3 makes easier the proof of the matters dealt with in that Part.

Part 4.4 is about requirements that evidence be corroborated.

Part 4.5 requires judges to warn juries about the potential unreliability of certain kinds of evidence.

Part 4.6 sets out procedures for proving certain other matters.

Chapter 5 deals with a variety of miscellaneous provisions including:

Inferences

Admissions

No Self-Incrimination Privilege for Body’s Corporate.

Voir Dire.

Waiver of Rules of Evidence.

Agreements as to Facts.

Leave for Admissible Directions

Advance Rulings and Findings

Additional Powers

Witness Failing to Attend

Non-Publication of Prohibited Questions.


5. Purpose – Cross Examination

I know turn to the best part of being an advocate. Once you have embraced the Hoy “get

across the facts” then “analyse the relevant statutes” and then “analyse the evidence and does

it get in under the Evidence Act” approach, you need to think about your approach to cross

examination.

The starting point is always whether or not you cross examine the witness. You should go

through this mental exercise every time you have to consider a witness.

If you stand up to cross examine a witness, the preliminary assumption from the fact finder

(Judge or jury) will be that the witness must damage your case. Otherwise, why would you be

standing up!

Always consider whether you can actually not ask any questions. If so it can sound pretty cool

to say “I have no questions!” (in a relaxed and slightly exasperated “Is this as good as it gets”

tone).

Generally the purpose of cross examination is:

(i) to elicit favourable evidence for your case, and/or

(ii) to damage a witness’ credibility (so as to minimise the damage that witness’

evidence does to your case).

There are also ancillary purposes; providing the foundation for criticism if your opponent does

not call a certain witness; to prove a document you wish to have admitted into evidence or

compliance with Browne v Dunn (1893) 6 R 67.2

These two objectives must be kept in mind at all times because, naturally enough, the course of

a cross examination may vary from proposition to proposition and answer to answer. There

2 See also Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) (1983) 1 NSWLR 1 and MWJ v The Queen (2005) 80

ALJR 329


may be changes in response, attitude and/or co-operation by the witness. You must be alert to

these changes. The key is to listen to the answer. I cannot emphasise this too highly.

It is also important to be alert to your success midstream. If you obtain favourable evidence or

important concessions that help your case, you may not need to go any further and/or damage

the witness’ credibility. Drop it. This possibility should always be in the back of your mind.

6. Practical Hints

1. Only cross examine if you can achieve some positive result. Must be able to answer “Why

am I asking this question?”, “What is the positive benefit?”

2. If you can: “No questions”. Often the hardest thing for any advocate is to not ask any

questions. If there is no value in doing so, don’t.

3. Always ask leading questions.

4. Do not ask questions that you do not know the answer to. This mantra is qualified in that

sometimes you will have to take the risk and follow a line of questions that you do not

know the answers to. Generally the situation will suddenly present itself and you will have

to follow that line - It is a question of risk vs. reward.

5. If you get a clanger, move on as if it did not trouble you at all. Don’t dig yourself in deeper.

There will always be answers and assertions that hurt your case – that is why there is a

case! Try and avoid any “extras” – whatever occurs you will still need to deal with it in

your evidence or address/submissions.

6. Try and make your questions short and concise. This enables all to understand and follow

your path. It will also enable you to more easily refresh the fact finder of the answers in

address/submissions.

7. Do not allow the witness an opportunity to explain what they are saying, i.e. How? What?

Why? If you do, you are opening the gates instead of closing them! Both for the witness


and the re-examiner. This can only damage your case. If you can adhere to the “only

asking leading questions” rule, the witness should be more easily and politely controlled,

as will the evidence/responses.

8. Try not to argue with the witness – Generally speaking this does not go down well with

anyone – Judges included. Cross examination does not mean examine crossly!

9. Always listen to the answers given by the witness. It will be obvious to the fact finder if

you do not. This is where you need to be alert to the responses given and be intellectually

flexible enough to move with the witness.

10. Be prepared to abandon some of your preconceived plans and/or questions. You can

come back to them later if need be. It is very important to appear to be going with the

witness and allowing them the courtesy of being listened to. It also helps if you can

instinctively cover the various areas, contentious or not, when brought up by the witness

rather than merely following your script. If you can do this it demonstrates you are totally

across the case, whichever way it goes. It also shows confidence in your case and how

you are untroubled by the witness’ testimony. Again all a part of the art of persuasion.

11. Do not merely reinforce/repeat that which has been led in chief – What’s the benefit for a

fact finder to hear the evidence in chief twice? e.g. “He raped me hard” or something

similarly offensive and damaging. “I saw the knife because it was near my throat” or “No it

was 8.00 pm because there was a solar eclipse at the time and I had just come out of a

Bar Readers course night time lecture and it was my birthday!” or “Yes he did buy the

shares, 150,000 of them the day before the public announcement as to the Takeover” is

not good. This is the evidence you want to negate and if it is already there in chief you

really want to get through it without having it re-stated. No need to give the witness a

“free-kick”. Otherwise you are merely revisiting and emphasising the worst points of your

case.

12. Try and make some of your good points at the beginning and end of your cross

examination. If the matter is proceeding over a day and the case is about to adjourn

overnight or for the weekend, and you will be continuing your cross examination on the


next hearing day, try and finish on a high point. This should leave a good impression for

the Judge or jury over the break. There is a similar benefit in this approach at the

commencement and conclusion of your cross examination. These are generally the

occasions the fact finder is most likely to remember. (Sadly they can then have a nap in

the middle or play sudoko3. Although no doubt your cross examination will keep them fully

attentive!)

13. Be alert to the pressures of dealing with those who instruct you and/or the client

demanding you ask certain questions and/or take a certain approach. You may disagree.

It is a fine line for you to resist the helpful hints from those who instruct you. Respect and

consider their views and tell them you have done so. Then gently move on.

14. Do not slouch or look away from the witness – remain confident with your questions,

dominant in your presence (or at least remain vertical), always polite and maintain eye

contact with the witness (video moots are excellent tools for self analysis!).

Obviously these points are offered only as suggestions. How you approach your cross

examination will always depend on a wide variety of ever changing circumstances. If you start

with these hints in mind however you should be able to focus on and identify the material you

need to extract and how best to do so.

7. Relevant Texts

Whenever approaching particular problems regarding cross examination or trials in general, the

followings texts may be useful:

Mauet & McCrimmon, Fundamentals of Trial Techniques

In my view, this is a tremendous text. It provides guidelines and examples in a very practical

way as to performing your role in both civil and criminal trials. There are guidelines and extracts

as to all aspects of running a trial including opening and closing addresses, examination in chief,

cross examination and objections.

3 Cesan v R (2008) 236 CLR 358; R v CX (2006) QCA 409


The authors set out various procedures and helpfully provide examples of how to ask questions

and address. It is a text that you can refer to for guidance and often answers to the simplest and

perhaps most embarrassing questions, the questions I hope you will always be able to ask your

tutors (or me if you are totally stuck).

Odgers, Uniform Evidence Law

Anderson, Hunter & Williams, The New Evidence Law

Butterworths Criminal Practice and Procedure, NSW Service

Ritchie’s Uniform Civil Procedure NSW – Evidence Act Annotated

I often check these texts and Services for summaries, extracts or commentaries on propositions

that I may encounter in civil hearings or criminal trials. Access to the separate publications

sometimes gives a different slant on the same problem. This way you can at least cover most

of the field.

8. Prior inconsistent statements and credit

I thought I would now turn to a specific aspect of cross examination – prior

inconsistent statements.

Prior inconsistent statements and/or material on credit are often the best and sometimes the

only feasible bases for effective cross examination.

The Evidence Act, 1995 provides the parameters:

“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.

44 Previous representations of other persons

...

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.”


Credit

Limited time only allows me to make some brief comments concerning credit and credibility.

Rather than extract the relevant sections I refer you to Part 3.7 - Sections 101A, 102, 103, 104,

105, 106, 108 and 108A.

Relevant “starting point” cases

Adam v The Queen [2001] 207 CLR 96

R v Papakosmas v The Queen [1999] 196 CLR 297

KNP v The Queen (2006) 67 NSWLR 227

Friend v The Queen [2007] NSWCCA 41

In Adam, the witness said he had seen Adam commit the crime. He then recanted from this.

Because the evidence was sought to be used both for credibility purposes (i.e. he shouldn’t be

believed because he has previously told a different story) and for the hearsay purpose (i.e.

Adam committed the crime), it was admissible for both purposes without needing to comply with

either rule. This decision resulted in amendment of the Evidence Act 1995 by the insertion of ss

101A and 102 and consequentially ss 103.

Aslett v The Queen [2006] NSW CCA 49

JCS v The Queen [2006] NSW CCA 221

Aslett held that evidence of a prior inconsistent statement is admissible even though s 43 is

concerned only with the adducing of evidence (and not admissibility). It is a provision concerned

with fairness to the witness in that its purpose is to ensure that if a party intends to adduce

evidence of a prior inconsistent statement “otherwise than from the witness” that the witness

refuses to acknowledge, that party may only do so after drawing that witness’’ attention to the

circumstances of the statement so the witness can identify it and the asserted inconsistency.

As stated by Barr J (with whom Spigelman CJ and Howie J agreed):


“The purpose is to ensure that such a witness has a proper opportunity to consider precisely what he or she is asserted to have said and precisely how that is asserted to be inconsistent with what the witness now says.”4

Guidance as to s 43(2)(a) or “provenance” of the prior inconsistent statement can be drawn from

JCS v The Queen where the CCA specifically considered the necessity for counsel to identify

the provenance of the document relied upon (that is the prior inconsistent statement) before it

could be tendered. This case involved a letter apparently containing prior inconsistent

statements made by the witness. At trial she was shown the letter and prior committal hearing

questions and answers were recited to her. Her answers at committal were generally that she

did not recall writing the letter. After running through these questions and answers at trial it was

then suggested to her that she wrote the letter. She denied the suggestion. The tender of the

letter was rejected at trial. The CCA agreed with the rejection, essentially on the basis that no

evidence of its provenance had been led.5

9. Potential Sources of Prior Inconsistent Statements

Often this material will be provided to you by way of disclosure, discovery or under subpoena.

The documents may include:

Company Records

Correspondence

Minutes of Meeting

Director’s Reports

Diaries

Investigator’s reports.

Insurance claim form.

Statement to police officer at scene.

Notebook entry of police officer.

Subsequent ERISP with police officer.

Subsequent statement to police officer.

4 Aslett v The Queen [2006] NSW CCA 49 at [75] – [76]

5 JCS v The Queen [2006] NSW CCA 221 at [67] – [71]


Conversation with eye witness at scene (if signed off).

Statement to ambulance officer/fireman/emergency services at scene: e.g. “Sorry,

I was going too fast!” “I got some kerosene in my eyes!” “I burnt my toes running

away!”

Statements at reception/secretarial/appointment diaries “I’m here for the job

interview”

Statements to police officers as contained in their statement (you may be able to

play one witness off against the other).

COPS reports.

DOCS files

10. How do we cross examine on prior inconsistent statements?

As trite as this may sound and as tempting as it may be, do not flag the fact that you have the

“killer” document or material. It is best to sneak up on the witness and close the gates first.

If you have a prior inconsistent statement always be alert to the possibility that the witness may

well be expecting it (if they are well briefed).

An important starting point is to make sure that the statements are inconsistent. If you have a

number of inconsistent statements – pick the best of them. You may later use the others if the

witness succumbs to the best one.

The way you approach your questioning will depend on whether you want to discredit the

witness entirely (if you can) or simply get a different answer from the witness to that given in

chief.

You either want to get the inconsistency in as the correct version so that it benefits your case

and therefore erodes that which is contrary and currently relied upon or you want to try and

completely erode the witness’ reliability and credibility. It is rare that you will have sufficient

ammunition to achieve the latter. Even so if it arises be ready to do so.


11. Softly softly

I generally recommend you cross examine softly softly. As suggested earlier in this paper, there

is no need to examine crossly6.

Obtain the concession from the witness because it helps your overall case and don’t otherwise

damage their credit and thus evidence overall. Your aim is to provide a basis for the submission

that the witness is mistaken in his/her recollection as to a (or several) crucial feature/s and

cannot be relied upon. In a civil case, you will be thus submitting your client’s version is to be

preferred. Consequently it may not matter that the balance of the witness’ testimony remains –

unscathed or otherwise.

If however you need to discredit the witness I also recommend you generally go softly softly. It

may come down to a comparison of versions and then the fact finder preferring one over the

other. That may be inevitable. To achieve this end you will probably have to provide some

reasons as to why the witness may be telling untruths or contrary evidence. These may be

suggestions such as the witness disliking your client, bias or prejudice, promises given by Police,

financial reward or other benefits if the case is successful, or whatever else your client’s

instructions reveal to you as being possible reasons. Needless to say you need to carefully

consider these suggestions before raising them. If totally impractical or unlikely, do not use

them. As an aside challenges such as these sometimes prompt extraordinary and/or

unreasonable responses from the witness. The actual demeanour of the witness and

vehemence of the responses could of themselves assist your case.

The witness may also have an atrocious criminal record or history of untruthfulness – If so, only

focus on aspects that truly erode the credit of the witness – e.g. a drink driver does not mean

he/she is a liar – also remember members of the jury may be drinkers, or have similar records.

Before pursuing this line you need to ensure you have the ammunition.

Why softly softly? Experience suggests that most witnesses are reasonably

intelligent and are not generally deliberate liars. They are often merely doing their best to recall

circumstances that have been traumatic to them. It is rare that a fact finder will dismiss

6 Practical Hints - Para 8 (above)


somebody’s evidence entirely on the basis that they form the view the witness is deliberately

unfolding a blanket of lies so as to benefit the case.

Tactically it seems to me best to lead the fact finder and the witness to a less direct and perhaps

more dignified way out of the conflict by suggesting they are merely unreliable in recollection; a

human frailty that faces everybody in day to day life.

There are of course occasions were the witness, generally a party, investigator or prosecutor, is

a little more resilient and direct in their contrary views. It is inevitable that witnesses such as

these may have to be shown to be biased and/or and unreasonable when faced with prior

inconsistent statements or material. Overall however I suggest the aim should be to gently

provide “an out” for both the witness and fact finder to achieve your desired result.

12. Tendering the prior inconsistent statement

You have to be careful though when cross examining on a prior inconsistent statement whether

you actually want to tender it or not.

If the witness agrees with the propositions you have elicited from the statement there is no need

to tender it. If on the other hand if he/she disagrees then you may well have to tender the

statement as a prior inconsistent statement. It will then go into evidence. There is a potential

downside with that because there may be other material in the statement that damages your

case. You must consider this well beforehand.

This is where you have to make a judgment as to how far you go with the cross examination

and the use of the prior inconsistent statement – you have to work out whether there is truly an

upside and whether it is worthwhile to pursue the point and go hard. This is a part of the

forensic judgment you have to make – beforehand and sometimes midstream, once you get a

sense for how the witness is going.

Similarly, there is also a risk that the examiner in chief can come back in re-examination and try

and tidy up. For example they may be able to provide some explanation as to why the witness

was mistaken in his/her evidence in chief or mistaken in the prior inconsistent statement.


Examples may be “I thought it was 50 metres away but since the accident I had my eyes

checked and I found I needed spectacles and it was only 20 metres away” “I am colour blind”

“At the time I was scared of the Defendant because he also said to me if I said anything different

he’d kill me!”. There may also be a prior consistent statement about which you were not aware

or which may provide a rational explanation. If so it may be led in reply.7 You need to be aware

of these possibilities and risks.

As stated earlier, ensure you obtain instructions and check with your client as to any reasons

why the witness would be putting them in with the version that is apparently inconsistent and/or

whether the witness has any motive to say something adverse or contrary to that previously

stated.

You do not want to stumble onto anything that will catch you by surprise. If you do I suggest

you just gaze wistfully at the witness and continue as if not a glove was laid upon you. There is

no benefit in reacting with shock, surprise or a sudden inhalation of breath. Similarly there is no

benefit in sighs or clever eyebrow raising, coupled with a look to the ceiling with hands on hips.

On the other hand you may be able to return or follow up the adverse point by taking it on the

chin and suggesting it too forms a part of the bias and/or perverse hatred the witness has of

your client. Again this is a trite example of trying to deal with the body blow and turning it into a

positive if you can.

Sometimes through in their denials or challenges to your propositions, witnesses get quite

strident and appear excessive in their opposition. This conduct may shine through to the fact

finder as revealing unreasonableness, and thus a platform for a finding of unreliability and/or

lacking credibility. It sometimes happens. You need to be alert to this possibility when you

receive the unhelpful answer. You may then seek to emphasise or exaggerate the point of

difference by focussing further questions on the subject. If however you are not confident

enough to deal with it, just move on and take the hit.

7 S 108 Evidence Act 1995 – see also KNP v The Queen (2006) 67 NSWLR 227


13. Scenarios - Practical Examples

I thought it may be helpful to give a short factual scenario with examples to show how you may

wish to cross examine using a prior inconsistent statement.

Scenario 1 - Criminal

The basic proposition we are faced with is that you as the cross examiner wish to get

agreement from an apparently reactive and unhelpful witness that he/she went to the hotel at

8.00 pm. You are armed with a statement that the witness gave to an investigator (private or

police) within 2 days of the incident. See Annexure.

The witness (in evidence in chief) asserts he/she went to the hotel at 9.15 pm that night. The

timing is crucial to the plaintiff/prosecution case. If established it was the earlier time that is 8.00

pm, it will be exculpatory. You therefore want the witness to concede that he/she arrived at the

hotel at 8.00 pm.

Past presenters of a Bar Practice Course dealing with an example of cross examination on a

prior inconsistent statement provided a sample series of questions8. I have made a few

amendments and provide them to you as simple examples of how to not cross examine together

with a series of suggested questions as to how you may successfully cross examine when using

a prior inconsistent statement.

Version 1

Q. You went to the hotel that night at 8 o’clock didn’t you? A. No – it was 9.15. Q. It was 8 o’clock wasn’t it? A. No. Q. Look at this answer that you gave to an investigator. A. Yes. Q. That’s correct isn’t it? A. No.

8 Bar Practice Course paper by P Greenwood SC (2006)


Q. That was what happened wasn’t it? A. No. Q. That is what you told the investigator? A. I don’t think so. Q. Didn’t you sign that document? A. Yes Q. Isn’t it correct? A. No. Q. You went to the hotel that night at 8 o’clock didn’t you? A. No. Didn’t you hear me the first time?

Essentially all you thought was going to happen, didn’t! The signed statement is in your hands – and there it remains – the witness has denied the proposition and you are bound by his/her answer.

Version 2

A better approach may be to firstly establish the accuracy/reliability of the statement. It is also

important to ensure that you leave no opportunity for the witness to give an explanation/excuse

as to the subsequent variation and/or why the earlier account may be incorrect. This requires

the classic “closing the gates”.

Q. You recall that shortly after the incident an investigator came to see you? A. Yes Q. That was within 2 days of the incident? A. Yes Q. Naturally enough you would agree that your recollections as to the details

of the incident would have been better than now? A. Yes Q. Because it would have been fresh in your mind? A. Yes Q. You of course understood that the purpose of the interview was to find out

about the incident? A. Yes Q. Obtain an accurate account of the incident from you? A. Yes Q. You understood it was then in your best interests to assist, co-operate and tell

the truth? A. Yes Q. Nothing to hide? A. No Q. You’d done nothing wrong - in your mind? A. No


Q. So turning to the investigators discussion with you, he asked you a number of questions?

A. Yes Q. And you answered truthfully? A. Yes Q. I of course don’t need to ask you that because of course you answered

truthfully? A. Yes Q. As he asked the questions and as you answered them, he was writing them

down? A. Yes Q. The questions? A. Yes Q. And the answers? A. Yes Q. He told you beforehand that he intended to write down the questions and

answers at the time? A. Yes Q. He also indicated to you that you would be given an opportunity to read

through them so as to ensure the questions and answers given by you were correct? A. Yes Q. And recorded correctly? A. Yes Q. And he also indicated to you at the time that if there was anything you wanted

to change you could do so? A. Yes Q. And you understood that at the time? A. Yes Q. He also indicated that once recorded and checked by you he proposed you

would sign the entry as being accurate? A. Yes Q. And date it? A. Yes Q. And he was going to witness your signature? A. Yes Q. So turning to the night, the investigator asked you a number of questions

about what had occurred that night? A. Yes Q. And as you said the incident was still fresh in your memory? A. Yes Q. And at the time you were telling the investigator the truth? A. Yes Q. They were truthful answers? A. Yes (Where can the witness go? Answer “No”?)

At this time you need to consider whether you are going to show the witness the document in its entirety or not. It may be prudent if the witness has signed every page, to show him/her the signature at the foot of every page. Again obtain the concession that that is their signature on every page. You may then ask:


Q. With each signature you intended to convey that you firstly considered the contents of the page?

A. Yes Q. Secondly read it? A. Yes. Q. And thirdly confirmed that it was accurate. A. Yes Q. And again as earlier indicated they were truthful answers as recorded. A. Yes Q. Because you otherwise would not have put your signature there, correct? A. Yes

You need to identify the provenance of the document if there be a dispute as to its contents. To do so you may ask the following:

Q. You agreed earlier that you signed a document which reflected a series of questions and answers that you gave both truthfully and accurately shortly after the incident?

A. Yes Q. The investigator who spoke with you was a Constable of Police? A. Yes Q. Constable Sherlock Holmes? A. I don’t remember his name Q. It was a male Police Officer in uniform with a hat? (and a pipe?) A. Yes Q. That too would have emphasised to you the necessity to tell the truth? A. Yes Q. And of course you may not have needed reminding to do so but the

presence of a Police Officer asking questions and taking notes would have put you on specific notice that it was important to tell the truth?

A. Yes Q. Because whilst you may be unaccustomed to speaking with Police you

realised that it was an investigation about which there may be serious consequences?

A. Yes Q. Not necessarily consequences adverse to you but to other people involved. A. Yes Q. If criminal proceedings: And that said you also understood that you may

be liable for an offence if you told untruths? A. Yes Q. And that whatever you said may later form the basis of a statement to be

used in Court and/or for evidence? A. Yes Q. And you therefore understood the gravity of the situation? A. Yes Q. The seriousness of the inquiries being made? A. Yes Q. And the importance to tell the truth? A. Yes


Q. I want to now show you a notebook that has your signature at the foot of each of 6 pages?

A. Yes Q. Would you look at the notebook and firstly go to the last page and you’ll see

there a date underneath your signature? A. Yes Q. That is in your handwriting isn’t it? A. Yes Q. The signature, as you have already agreed, is yours? A. Yes Q. As it is on each page A. Yes Q. Could you please look at this part of this document and tell me if that is your

signature (or “Might I approach the witness, your Honour? Is that your signature”?) A. Yes Q. And now look at the document – that is the statement that you gave to the

investigator shortly after the incident, isn’t it? A. Yes Q. You have confirmed you signed the statement? A. Yes Q. And you checked through the statement before signing it? A. Yes Q. In doing so you were checking that it was an accurate response to the

questions? A. Yes Q. Of course if inaccurate you would have changed it? A. Yes Q. You were of course given every opportunity to read, check and if need be,

change it? A. Yes Q. Now look at question 4. A. Yes Q. You there told the investigator that you went to the hotel at 8 o’clock? A. Yes Q. At night? A. Yes Q. That was correct wasn’t it? A. Yes Q. That was a truthful answer? A. Yes Q. So now with the benefit of seeing your statement, you agree you went to the

hotel that night at 8 o’clock? A. “Yes” (and of course they might also add “I have to say yes because that

was brilliant cross examination Mr/Ms…..”) Q. You’d not seen this statement since you signed it. A. No. Q. And what you told us as to the time that is 9.15pm was based on your

recollection of events some 27 weeks later when you filed the summons against my client?

A. Yes


Q. That was a mistake? A. Yes Q. Simply put the correct time of the incident was 8.00pm? A. Yes

If there is a challenge to the correctness of the recollection then you may need to move through a series of questions such as these.

Q That was what you told Police/Investigators within 2 days of the event? A. Yes Q. When your recollection was obviously better? A. Yes Q. Than now. A. Yes Q. Because you accept over time your memory has faded hasn’t it? A. Yes Q. And where there be any difference between what is recorded in the

notebook and what you say today (some 58 weeks later) we ought accept that which was recorded earlier as the correct version.

A. Yes Q. And in fairness to you is it the case that you would put down any variance in

what you said earlier in evidence today as compared to what is recorded as being an example of fading memory?

A. I guess so. Q. That’s the case isn’t it? A. Yes Q. And in fairness to you, you didn’t mean to deceive the Court? A. No. Q. But you accept now that the incident occurred at 8.00pm? A. Yes.

By doing this, you have given yourself the best chance of getting a “Yes”. You have given the witness a way out - (if you want to) and still achieved what you need established for your client. Even if the answer is “No”, you have made the point and can address on the probability that the earlier version is that which is the more reliable and that the witness attended at 8.00pm.

Precisely the same approach can apply to civil matters – the same principles apply – commit the

witness to his/her commitment to telling the truth (at an earlier stage and now); establish the

reliability and accuracy of the earlier record, closing the gates as you go.

Scenario 2 - Civil

The basic proposition we are faced with is that you as the cross examiner wish to establish a

lack of bona fides or genuineness in the plaintiff/witness in that in response to a claim for

constructive dismissal and damages, he was actually planning to leave his employment and

take up a far more lucrative job overseas well before he was dismissed. The employee


resigned his employment from the company – allegedly unhappy. He has subsequently taken

up a position in Dubai. You have subpoenaed and obtained his personnel file from his new

employer. It reveals an employment contract of US $10 million over 5 years i.e. US $2 million pa.

This is compared to the salary you were paying him of A $1 million pa. The plaintiff left your

employ in March 2010 and took up the Dubai position in June 2010. The personnel file reveals

negotiations and interview notes as far back as June 2009. You have also subpoenaed and

obtained the plaintiff’s international travel records and passport. These reveal he travelled to

Dubai on 2 previous occasions, both whilst in your employ. The records reveal 2 trips to Dubai

in August 2009 and December 2009 (both were debited as annual leave).

The personnel records reveal interviews taking place during these 2 periods of leave.

The passport reveals stopovers in Dubai on both occasions en route to London. The period of

the stopovers were both 2 days and are the same days noted in the personnel records as the

interview dates and related notes of negotiations. The personnel records also reveal a job offer

addressed to the employee/plaintiff dated January 2010 indicating he could commence work on

1 June 2010 on basis he wanted to take 3 months leave post departure from your employment.

Aside from the usual remedies the Plaintiff is also seeking aggravated damages for the distress

and insecurity attaching to him not having a position to go to!

Unsurprisingly you want to establish the Plaintiff is a liar with no credibility at all (and a greedy

one at that!). At the other end of the scale you want to establish he is a person who is

exaggerating his situation.

The sledgehammer approach:

Version 3

Q. You tell us you were distressed for 2 months whilst looking for a job? A. Yes. Q. You tell us your particular employment and job skill is a niche market? A. Yes. Q. And it is thus hard to find a job as good as the one you held with my clients? A. Yes. Q. And particularly so at the A$1 million per annum? A. Yes. Q. You went to Dubai on 2 occasions? A. Yes. Q. You went to Dubai in August and December 2009?


A. Yes. Q. They were for job interviews weren’t they? A. No. I stopped on my way to London cos the flights were cheap. Q. You had this job arranged from as early as December 2009. A. No Q. The documents say you had interviews with your current employer in August and

December 2009? A. Well they are wrong. Q. You went there for job interviews in August and December 2009? A. No, the dates are wrong. The interviews were in February and May 2010.

Version 4

A better approach may be to firstly establish that the witness travelled overseas in August and

December 2009 whilst on annual leave. It is also important to establish the route he followed

and the fact he stayed in Dubai whilst in transit and in particular ensure he confirms the dates.

In so doing you might want to firstly confirm the journey and secondly the date, timing and

locations visited via the independent immigration/passport records. He could hardly dispute

them.

Q. You went there for job interviews in August and December 2009? A. No, the dates are wrong. The interviews were in April and May 2010. Q. It’s the case isn’t it that you took recreation leave from your employment with my client in

August 2009? A. Yes. Q. You had 2 weeks off and went to England to visit your wife’s parents? A. Yes. Q. You left Australia on 10 August and returned on 25 August? A. I don’t remember the dates. Q. If your passport records reflected that you left Australia on 10 August and returned on 25

August, you wouldn’t dispute that? A. No I wouldn’t. Q. Because the procedure of course is that you present your passport to Australian

customs and immigration officials together with your ticket, boarding pass, visas upon departing from and returning to Australia?

A. Of course I do. Q. And naturally enough they must all match up as to identity, destination and date? A. Of course. Q. And so just confirming therefore you would not dispute those dates if they were so

reflected in your passport records?


A. No, I said that already. Q. The flight you took in August had 1 stopover didn’t it? A. I think so. Q. Again, can I suggest to you that your passport records reflect that you had a stopover for

2 days on 12 and 13 August 2009? A. If the passport says that of course I did. Q. So you agree with me now that you went to London via a stopover in Dubai leaving

Sydney on 10 August, 2009. A. Yes Q. And the stopover was on 12 and 13 August 2009. A. Yes if passport says that. Q. And returned to Australia from London on 25 August 2009. A. Yes if passport says that. Q. Now you agree the stopover was in Dubai? A. Yes I recall that now. I’d never been there. I wanted to have a look around. It was such

a rich and fancy city. Q. The passport records reveal you were there for about 24 hours. Correct? A. Yes I know it was a quick trip. I only had time to look around at some of the fancy hotels. Q. No one was with you, were they? A. Yes that’s right, I was on my own. (This counters the possibility of a corroborative

witness suggesting he didn’t go in for interviews)

The line of questions would be similar for the second stopover in Dubai also - Again to confirm that he was there in Dubai for 36 hours and based on similar irrefutable records. If need be, you would again show the witness the relevant entries in the passport. All documents could be then be “Marked for Identification”. No need to tender them if the witness agreed with the propositions. It would probably not be necessary to show him the latter entries and in particular those of April and May, 2010.

You would then turn to the Personnel records. These are the crucial documents as they firm up

the interviews as having occurred earlier (whilst on those trips) rather than later.

You would then follow with a series of questions confirming the application for the job may be

forgiven for thinking this is all a bit over the top! Document after document! In my view it is not.

You have powerful material that emphasises the deceit that this witness/plaintiff attempted to

found liability upon your client.

14. Overall

As you will appreciate, the use of prior inconsistent statements in cross examination can be

devastating to your opponent’s case. To maximise damage both direct and collateral, the

material should be unfolded methodically, with short sharp questions and at all times with

courtesy. As the material unfolds, the witness will become more and more exasperated at its


content and consequent damage, the witness’ counsel will realise the power of the material, and

most importantly, the fact finder will not only appreciate the gravity of the material and

consequent concessions, but if dealt with courteously, you will also accumulate invaluable

judicial respect.

I hope this paper and talk is of assistance and I wish you well for your future at the Bar.

Chris Hoy SC 17 May 2011

12 Wentworth Selborne Chambers


ANNEXURE “A” NOTEBOOK ENTRY – E 566798 – 19 May 2010 Q My name is Sherlock Holmes and I am a constable of police and part time private

investigator okay? A Yep sure Q As you know I want to ask you about an incident near the hotel last Monday night A No worries Q Were you at the hotel last Monday night the 17 May 2010? A Yep sure was Q Do you recall what time it was that you arrived? A Yep sure do – it was 8 o clock – I checked my watch and wanted to be there in time for

the Manly Eels match. I was late as it had already started. Q Please check these answers and if correct please sign each page and below. A Sure.

These questions and answers are true and correct. Dated this 19 May 2010 E. Witness Const S Holmes (SIGNED) (SIGNED)