By James Stevens, Director and Solicitor, Go To Court Lawyers. Last reviewed 14 April 2026.
Key points
- "Hostile" is not the Act's word: in the ACT, section 38 of the Evidence Act 2011 deals with "unfavourable witnesses".
- Three grounds: the witness gives unfavourable evidence, is not genuinely trying to give evidence about something they should know, or may have made a prior inconsistent statement.
- Leave is needed: the court considers whether notice was given at the earliest opportunity, fairness, the importance of the evidence and the length of the hearing.
- Then it is cross-examination: the party can use leading questions and, with further leave, test the witness's credibility.
- Earlier statements: a prior inconsistent statement can be put to the witness and, if denied, proved; once admitted, it may also be used as evidence of what it says.
- Protections stay: improper questions must still be disallowed.
- For advice on a witness issue in an ACT case, call 1800 577 015 at any hour: free general legal information, and a 60-minute consultation with a lawyer who practises in the ACT for a fixed $295.
In the ACT, a party whose own witness gives unfavourable evidence, is not making a genuine attempt to give evidence about something they may reasonably be supposed to know, or may have made a prior inconsistent statement can ask the court for leave under section 38 of the Evidence Act 2011 to question that witness as though cross-examining them; in deciding, the court must consider whether the party gave notice at the earliest opportunity and how far other parties will question the witness.
Checked on 23 October 2026 against the Evidence Act 2011 (ACT) and the Evidence Act 1995 (Cth).
When a party can question its own witness
The Evidence Act 2011 (ACT) does not use the word "hostile". Section 38 deals with unfavourable witnesses. A party that called a witness may, with the court's leave, question that witness as though cross-examining them about:
- unfavourable evidence: evidence the witness has given that is unfavourable to the party;
- no genuine attempt: a matter the witness may reasonably be supposed to know about, where it appears to the court that the witness is not making a genuine attempt to give evidence about it in examination in chief; or
- a prior inconsistent statement: whether the witness has at any time made a statement inconsistent with their evidence.
For example, the prosecution may apply when a witness's evidence in court differs from what they told police. The rule applies to any party that called the witness, in criminal and civil cases.
How the court decides on leave
- Notice: the court must consider whether the party gave notice at the earliest opportunity of its intention to seek leave, and how far the witness has been, or is likely to be, questioned by another party.
- General factors (section 192): whether giving leave would unduly lengthen or shorten the hearing, whether it would be unfair to a party or witness, the importance of the evidence, the nature of the proceeding, and whether the court could instead adjourn or make another order. Leave can be given on conditions.
- Credibility: with further leave, the party can also question the witness about matters relevant only to the witness's credibility.
- Order: this questioning takes place before the other parties cross-examine, unless the court directs otherwise.
- Treated as cross-examination: it counts as cross-examination for the Act (except the limits on re-examination), so leading questions can be used and the protections against improper questions apply.
Prior inconsistent statements
- Putting the statement: a witness can be asked about a prior inconsistent statement without first being given full details of it or shown the record.
- If the witness denies making it: the party can prove the statement by other evidence only if it told the witness enough of the circumstances to identify the statement and drew their attention to the inconsistent part; it may reopen its case to do so.
- How it can be used: under section 60, the hearsay rule does not apply to an earlier statement admitted for another purpose, such as testing the witness's credibility. In general terms, that means the earlier statement may also be relied on as evidence of what it says, subject to the court's other powers.
Limits and protections
- Lack of memory: the Act's tests are evidence that is unfavourable, or no genuine attempt to give evidence. Whether a claimed lack of memory meets either test depends on the circumstances, and the court decides.
- Improper questions: the court must disallow questions that are misleading or confusing; unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; belittling or insulting in manner or tone; or based only on a stereotype. The court considers the witness's age, background, any disability and the nature of the case.
- Which court: the Evidence Act 2011 applies to all proceedings in ACT courts. Federal courts use the Evidence Act 1995 (Cth), which has the same section 38.
See also what happens during examination in chief.
Free legal help in the ACT
| Service | Number | Hours |
|---|---|---|
| Legal Aid ACT Helpline (information and appointments) | 1300 654 314 | 8:30am to 7pm Monday to Thursday; 8:30am to 5pm Friday |
How Go To Court Lawyers can help
Our free line, 1800 577 015, answers at any hour. Jen, our AI legal information assistant, gives general legal information and takes your details; Jen is not a lawyer and does not give advice about your case. A 60-minute consultation with a lawyer who practises in the ACT is a fixed $295, by phone, video or in person where the lawyer offers it. The lawyer can advise on applying for, or opposing, leave under section 38, on how an earlier statement may be used, and on preparing a witness who has given different accounts. Requests are taken at any hour; how soon a lawyer can see you depends on who is available. Request a $295 consultation.
General information only, not legal advice. Updated 23 October 2026. Checked against the Evidence Act 2011 (ACT), Republication No 13 (effective 26 April 2024, the current republication on the ACT Legislation Register), sections 4, 37, 38, 41, 43, 60 and 192, and the Evidence Act 1995 (Cth), Compilation No. 35 (10 June 2025), on 23 October 2026.