Hostile Witnesses (NSW)

In criminal proceedings, the defence and prosecution call witnesses to give evidence on the basis that they expect the witnesses to assist their case. However, sometimes a party calls a witness and the witness proceeds to give evidence that does not support the case of the party that called them and that is inconsistent with previous statements they have made. A witness who does this is known as a ‘hostile witness’, an ‘adverse witness’ or an ‘unfavourable witness’. 

In New South Wales, evidence laws are contained in the Evidence Act 1995.

What Is An Unfavourable Witness?

Section 38 of the Evidence Act sets out the law in relation to unfavourable witnesses. It allows the questioner to apply for leave from the Court to cross examine those witnesses. 

This is critical, because the kinds of questions you can ask a witness in examination in chief are vastly different to what you can do if you are cross examining them. 

If a Court gives leave, a party may question a witness that it has called as though cross-examining them, about:

• Evidence the witness has given that is unfavourable to the party;
• 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.

The fact that a witness has made past inconsistent statements does not necessarily establish that they are hostile. The court will need to consider whether the inconsistencies are significant and whether they can be explained – for example, by lapses of memory or lack of intelligence. For example, if a witness simply does not remember now, that usually would not make them an unfavourable witness. 

A judge or magistrate may form the opinion that a witness is hostile of their own accord. Alternatively, the party that called the witness may seek leave to cross-examine the witness to demonstrate their hostility.

Cross-Examination By Opposing Party

After a witness has been treated as hostile and the party that called them has cross-examined the witness, the opposing party will also be permitted to cross-examine them in the normal way. 

When Can Witness Be Declared Unfavourable?

A witness may be declared hostile at any point in a criminal proceeding but these provisions only apply during their examination in chief. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.