Hostile Witnesses (NSW)

By James Stevens, Director and Solicitor, Go To Court Lawyers. Last reviewed 15 April 2026.

Parties to criminal proceedings call witnesses to give evidence on the basis that they expect the witness to give evidence that assists their case. This expectation is generally made on the basis of statements the person has made in the past. However, sometimes the defence or prosecution calls a witness, and the person proceeds to give an account that does not support the case of the party that called them. A witness who does this is known as a hostile witness.

Legislation

In New South Wales, the rules of evidence are set out in the Evidence Act 1995.

What is a hostile witness?

A witness is hostile if they appear to be unwilling to give honest testimony about the matters that are at issue in a proceeding. This may manifest as a refusal to answer questions at all, or as an appearance of answering dishonestly or incompletely.

A person is not a hostile witness because they are forgetful or unenthusiastic.

A hostile witness may also be termed an adverse witness’ or an ‘unfavourable witness’.

Hostile witness applications

If a witness is refusing to co-operate, the party that called them may make a hostile witness application. This is an application for the court to declare the witness hostile, allowing the party that called them to cross-examine them.

Under section 38 of the Evidence Act, a party that has the court’s permission may question a witness who they have called about:

• evidence given that is unfavourable to the party
• matters about which the witness can reasonably be supposed to have knowledge and about which it appears they are not making a genuine attempt to give evidence;
• whether the witness has, in the past, made inconsistent statements

Will the court declare a witness hostile?

In deciding whether to declare a witness hostile, the court will consider:

• whether the party gave notice at the earliest opportunity of its intention to seek leave; and
• the matters about which the witness has been, and is likely to be, question about.

A witness is not necessarily hostile just because they have made inconsistent statements in the past. The court must consider whether the inconsistencies are significant and whether there is an innocent explanation for them – such as a failure of memory.

The court may declare a witness hostile without an application by a party.

Cross-examining a hostile witness

When the court finds that a witness is hostile, it may permit the party that called them to cross-examine them ‘at large’ or only in respect of certain discrete matters.

The party will then seek to establish that the witness has previously made statements inconsistent with their testimony. This involves reminding the witness of the previous statement, the circumstances under which it was made, and asking them whether it was true.  

Calling evidence

The witness may admit making the prior inconsistent statement. If they deny making the statement, the party may call evidence of the statement such as calling the police officer who took the statement from the witness. Evidence that a prior statement was made can be taken as evidence that the statement was true.

Cross-examination by the other party

When a witness is declared hostile, the party that called them will be allowed to cross-examine them before the other party does so. After this cross-examination has concluded, the other party will also be permitted to cross-examine the witness. This may include trying to show that they are not being dishonest and providing them with opportunities to explain inconsistencies in their accounts.

When can a witness be declared hostile?

A court may declare a witness to be hostile at any stage in a proceeding. It may happen at a voir dire or during the committal because of previous statements made outside of court, or it may happen at trial, because of inconsistencies with statements made during a voir dire or during the committal.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.