Hostile Witnesses (ACT)

In criminal proceedings, each party calls witnesses to give evidence that they expect to support their case. This occurs during a process known as examination-in-chief. However, sometimes a witness proceeds to give evidence that does not help the case of the party that called them and that is inconsistent with earlier statements they have made. A witness who does this is known as a 'hostile witness' or an 'unfavourable witness'. This page deals with hostile witnesses in the ACT.

The concept of hostile witnesses plays a crucial role in ACT criminal law proceedings, as it allows courts to maintain fairness and seek the truth when witnesses become uncooperative or provide contradictory testimony. Understanding how hostile witness provisions work is essential for both legal practitioners and defendants navigating the criminal justice system in the Australian Capital Territory.

Treating a witness as hostile

Definition and characteristics of hostile witnesses

A hostile witness is a witness who appears to be unwilling to give truthful evidence about the matters that are at issue in the proceeding. A witness who is simply forgetful or lacks enthusiasm is not a hostile witness. The distinction is important because hostility implies a deliberate attempt to withhold information or provide misleading testimony, rather than mere memory lapses or reluctance to participate in court proceedings.

Courts in the ACT look for specific indicators when determining witness hostility, including evasive answers, deliberate contradictions of previous statements, refusal to answer questions, or obvious reluctance to provide information that would assist the party who called them. The witness's demeanor, body language, and overall attitude during testimony may also be considered.

Legal framework and procedures

Under the common law, a court may treat a witness as hostile and permit the party that called the witness to cross-examine them. In the ACT, this process is also codified in section 38 of the Evidence Act 2011, which states that if the court gives leave, a party may cross-examine a witness it has called about:

• Evidence the witness has given that is unfavourable to the party that called them;
• A matter that the witness can reasonably be expected to have knowledge of and about which it seems they are not making a genuine attempt to give evidence;
• Whether the witness has, in the past, made a statement inconsistent with their testimony.

However, a witness is not necessarily hostile just because they give evidence that is inconsistent with statements they have made in the past. The court must consider whether the inconsistencies are significant and whether there is an explanation for the discrepancy – such as lapses of memory. The judicial discretion in granting leave ensures that the hostile witness provisions are not misused to intimidate or pressure witnesses who are genuinely confused or mistaken.

A court may form the view that a witness is hostile of its own accord. Alternately, the party that called the witness may seek leave to cross-examine them to demonstrate that they are hostile. The application for leave typically requires the party to outline specific grounds for believing the witness is hostile and to demonstrate how cross-examination would assist in eliciting truthful evidence.

Prior inconsistent statements

Establishing inconsistencies

When a court is satisfied that a witness is hostile, it may grant the party that called them leave to cross-examine the witness 'at large' or only in relation to particular aspects of their evidence. The scope of cross-examination depends on the specific circumstances and the court's assessment of what is necessary to elicit truthful testimony.

The party will then try to prove that the witness has made prior statements that contradict their evidence. Before this can occur, the witness must be told the circumstances of the statement and asked whether they made it and whether it was true. This procedural requirement ensures fairness and gives the witness an opportunity to explain or clarify their position before being confronted with contradictory evidence.

Use of prior statements as evidence

If the witness does not admit making the prior inconsistent statement, the party may adduce evidence that they did so – for example, by calling the police officer who took their statement. Under section 60 of the Evidence Act 2011, evidence of a prior inconsistent statement can be used as evidence of the truth of the statement. This is an exception to the prohibition against hearsay evidence.

This provision significantly enhances the ability of parties to present their case effectively when confronted with hostile witnesses. The court must weigh the reliability and circumstances surrounding the prior statement against the current testimony to determine what weight to give each piece of evidence.

Cross-examination by opposing party

After a hostile witness has been cross-examined by the party that called them, they will also be cross-examined by the opposing party. The opposing party may seek to establish that the witness is not hostile and give them the opportunity to explain the discrepancies in their evidence. This dual cross-examination process helps ensure that all aspects of the witness's testimony are thoroughly explored and that the court receives the most complete picture possible.

The opposing party might also attempt to rehabilitate the witness's credibility by exploring reasons for the inconsistent statements, such as stress, intimidation, or misunderstanding. This adversarial approach helps maintain the balance of the proceedings and protects against potential misuse of the hostile witness provisions.

When can a witness be treated as hostile?

A witness may be treated as unfavourable at any point in a criminal proceeding, including during a voir dire, committal hearing, bail application or trial. The timing of when hostility becomes apparent can vary significantly, and courts must be prepared to address these situations as they arise throughout the proceedings.

Strategic considerations for legal practitioners

Preparing for potential hostile witnesses

Experienced criminal lawyers in the ACT understand the importance of thoroughly preparing witnesses before they testify. This includes reviewing prior statements, explaining court procedures, and discussing potential areas of questioning. However, even with careful preparation, witnesses may become hostile due to various factors including fear, intimidation, or changing loyalties.

Legal practitioners must be prepared to quickly assess whether a witness has become hostile and to make appropriate applications to the court. This requires a thorough understanding of both the legal requirements under the Evidence Act 2011 and the practical considerations involved in cross-examining one's own witness.

Impact on case strategy

The presence of hostile witnesses can significantly impact case strategy and may require lawyers to adapt their approach during proceedings. Alternative evidence sources may need to be identified, and the overall narrative of the case may require adjustment to account for the hostile testimony.

Protections and safeguards

Witness welfare considerations

While the hostile witness provisions serve important functions in ensuring truthful evidence, ACT courts are also mindful of witness welfare. Judges maintain discretion to limit cross-examination if it becomes oppressive or if the witness appears genuinely distressed or confused rather than deliberately uncooperative.

The court may also consider whether special arrangements are needed to protect witnesses from intimidation or to ensure they can give evidence freely. This is particularly important in cases involving domestic violence, organized crime, or other situations where witnesses might face pressure to change their testimony.

Judicial discretion and fairness

The Evidence Act 2011 provides courts with considerable discret