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.

Treating a witness as hostile

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.   

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-examination 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.

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.  

Prior inconsistent statements

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 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.

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.

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.

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.

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