Hostile Witnesses (Qld)

In criminal proceedings each party calls witnesses who they expect to give evidence that will assist their case. However, sometimes a party calls a witness who proceeds to give evidence that does not support the case of the party that called them and that is inconsistent with statements the person has made in the past. This is known as an ‘unfavourable witness’ or a ‘hostile witness’. This page deals with hostile witnesses in criminal matters in Queensland.

In Queensland, evidence laws are primarily governed by the Evidence Act 1977.

What is a hostile witness?

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

Declaring a witness hostile

A court has a common law right to declare a witness adverse or ‘hostile’ and to allow the party that called the witness to cross-examine them. Section 17 of the Evidence Act 1977 also allows a party to contradict its witness’ testimony with other evidence.

The fact that a witness made statements in the past that are inconsistent with their evidence does not necessarily establish that they are not telling the truth. 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 witness is 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 given leave 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 made statements that are inconsistent with their testimony at other times. However, before this can occur, the circumstances of the inconsistent statement must be mentioned to the witness, and the witness must be asked whether they made the statement and whether the statement was true.

Proving prior inconsistent statements

In most cases, the witness will admit making the 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.

If a witness does not distinctly admit that they made a statement that is inconsistent with their testimony on a previous occasion, they may be shown proof that they did make it (section 18 of the Evidence Act 1977).

If a written statement is being used to contradict a witness’s testimony, the witness’s attention must be drawn to the parts of the statement that contain the inconsistent statements (section 19 of the Evidence Act 1977).

Cross-examination by opposing party

After a witness has been treated as hostile and subjected to cross-examination by the party that called them, the opposing party will also be given the opportunity to cross-examine them. The opposing party will generally seek to establish that the witness is not hostile and give them the opportunity to explain the inconsistencies in their testimony.

When can witness be declared hostile?

A witness may be declared hostile 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 on the basis on inconsistent statements made during the voir dire, at the committal hearing or in witness statements.

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