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’. This page deals with hostile witnesses in criminal matters in New South Wales.

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

What Is A Hostile Witness?

An adverse witness, or a hostile witness, is a witness who is unwilling to tell the truth about the matters that are at issue in the proceeding and important for the advancement of justice. A witness is not hostile simply because they are forgetful or lacking in enthusiasm.

Declaring A Witness Hostile

Under the common law, courts may declare a witness adverse or ‘hostile’ and to allow the party that called the witness to cross-examine them. Under section 38 of the Evidence Act 1995 if a New South Wales 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.

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

Where court gives leave for witness to be Treated As Hostile

If the court believes that a witness is refusing to tell the truth and gives leave for them to be treated as hostile, the party that called them may be permitted to cross-examine them ‘at large’ or to cross-examine them to a limited extent.

The party will then seek to prove that the witness has previously made statements that are inconsistent with their testimony. However, before this can occur, the witness must be told the circumstances of the inconsistent statement and asked whether they made the statement and whether it was true.

Evidence of Prior Inconsistent Statements

In most cases, the witness will admit making the prior statement. If the witness does not admit making the statement, evidence may be called that they did so – for example, from the police officer who took the statement. Under section 60 of the Evidence Act 1995, evidence that a prior inconsistent statement was made can be relied on as evidence of the truth of the statement.

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. The opposing party will generally seek to establish that they are not hostile and give them the opportunity to explain the inconsistencies in their evidence.

When Can Witness Be Declared Hostile?

A witness may be declared hostile at any point in a criminal proceeding. This may occur during the course of a voir dire on the basis of inconsistent statements made out of court, such as in a witness statement.

A witness may also be declared hostile during a trial based on inconsistencies with the evidence they gave during the voir dire, at the committal hearing or in their witness statement.

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